As filed with the Securities and Exchange Commission on November 3, 1997
Commission File No. 0-11734
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under the Securities Act of 1933
CHINA FOOD & BEVERAGE COMPANY
(Exact name of registrant as specified in its charter)
NEVADA 87-0548148
(State or other jurisdiction of (I.R.S. Employer
incorporation of organization) Identification No.)
82-66 Austin Street, Kew Gardens, New York 11415
(Address of principal executive offices) (Zip Code)
Copies to:
JAMES TILTON, PRESIDENT
82-66 AUSTIN STREET
KEW GARDENS, NEW YORK 11415
(718) 847-1531
HERBERT M. JACOBI, ESQ.
8 WEST 38TH STREET, 9TH FLOOR
NEW YORK, NEW YORK 10018
(212) 840-6550
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Amount Proposed Proposed Amount
Securities to to be Maximum Offering Maximum Aggregate Registration
be registered Registered Price Per Share(1) Offering Price(1) Fee
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<S> <C> <C> <C> <C>
Common Stock, 35,000 $1.41 $49,350 $14.95
$.001 par value Shares
per share
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</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee on the basis of the average of the high and low prices of
the Common Stock reported on NASD's Electronic Bulletin Board on November
3, 1997.
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PART II
Information Required in the Registration Statement
Item 3. Incorporation of documents by reference.
These are hereby incorporated by reference the following documents and
information heretofore filed with the Securities and Exchange Commission:
(a) The Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 1996, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934 (the "Exchange Act") and the Registrants
Quarterly Report on Form 10-QSB for the periods ending March 31, 1997
and June 30, 1997.
(b) The description of the Registrant's common stock, $.001 par value per
share ("Common Stock"), to be offered hereby is contained in the
Registrant's Annual Report on Form 10-KSB for the year ended December
31, 1996, filed pursuant to Section 13(a) of the Securities Exchange
Act of 1934.
All documents subsequently filed by the Registrant pursuant to Section
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference into this registration statement and to be a
part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The By-laws of the Registrant, in Article XI thereof, provide for the
indemnification of the Registrant's Directors and Officers in certain
circumstances as follows:
1. GENERALLY
Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or proceedings,
whether civil, criminal, administrative or investigative (hereinafter
a "proceeding"), by reason
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of the fact that he or his testator or intestate (a) is or was a
director or officer of the Corporation or (b) is or was a director or
officer of the Corporation who serves or served, in any capacity, any
other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise at the request of the Corporation
(hereinafter an "Indemnity"), shall be indemnified and held harmless
by the Corporation against all expense, liability and loss [including
ERISA excise tax or penalties, judgments, fines, penalties, amounts
paid in settlement (provided the Corporation shall have given its
prior consent to such settlement, which consent shall not be
unreasonably withheld by it) and reasonable expenses, including
attorneys' fees] suffered or incurred by such Indemnity in connection
therewith and such indemnification shall continue as to an Indemnity
who has ceased to be a director or officer and shall inure to the
benefit of the Indemnities heirs and fiduciaries; provided, however,
that no indemnification may be made to or on behalf of any director or
officer if his acts were committed in bad faith or were the result of
any active and deliberate dishonesty and were material to the cause of
action so adjudicated or otherwise disposed of, or he personally
gained in fact a financial profit or other advantage to which he was
not legally entitled. Not-withstanding the foregoing, except as
contemplated by Section 3 hereof, the Corporation shall indemnify any
such Indemnity in connection with a proceeding (or part thereof)
initiated by such Indemnity only if such proceeding (or part thereof)
was authorized by the Board of Directors of the Corporation.
2. ADVANCEMENT OF EXPENSES
All expenses reasonably incurred by an Indemnity in connection with a
threatened or actual proceeding with respect to which any such
Indemnity is or may be entitled to indemnification under this Article
shall be advanced to him or promptly reimbursed by the Corporation in
advance of the final disposition of such proceeding, upon receipt of
an undertaking by him or on his behalf to repay the amount of such
advances, if any, as to which he is ultimately found not to be
entitled to indemnification or, where indemnification is granted, to
the extent such advances exceed the indemnification to which he is
entitled. Such person shall cooperate in good faith with any request
by the Corporation that common counsel be used by the parties to an
action or proceeding who are similarly situated unless to do so would
be inappropriate due to an actual or potential conflict of interest.
3. PROCEDURE FOR INDEMNIFICATION
(a) Not later than thirty (30) days following final disposition of a
proceeding with respect to which the Corporation has received
written request by an Indemnity for indemnification pursuant to
this Article or with respect to which there has been an
advancement of expenses pursuant to Section 2 of this Article, if
such indemnification has not been ordered by a court, of the
Board of Directors shall meet and find whether the Indemnity met
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the standard of conduct set forth in Section 1 of this Article,
and, if it finds that he did, or to the extent it so finds, shall
authorize such indemnification.
(b) Such standard shall be found to have been met unless (i) a
judgment or other final adjudication adverse to the Indemnity
established that the standard of conduct set forth in Section 1
of this Article was not met, or (ii) if the proceeding was
disposed of other than by judgment or other final adjudication,
the Board finds in good faith that, if it had been disposed of by
judgment or other final adjudication, such judgment or other
final adjudication would have been adverse to the Indemnity and
would have been established that the standard of conduct set
forth in Section 1 of this Article was not met.
(c) If the Board fails or is unable to make the determination called
for by paragraph (a) of this Section 3, or if indemnification is
denied, in whole or in part, because of an adverse finding by the
Board, or because the Board believes the expenses for which
indemnification is requested to be unreasonable, such action,
inaction or inability of the Board shall in no way affect the
right of the Indemnify to make such application therefore in any
court have jurisdiction thereof. In such action or proceeding, or
in any suit brought by the Corporation to recover an advancement
of expenses pursuant to the terms of an undertaking, the issue
shall be whether the Indemnity met the standard of conduct set
forth in Section 1 of this Article, or whether the expenses were
reasonable, as the case may be (not whether the finding of the
Board with respect thereto was correct). If the judgment or other
final adjudication in such action or proceeding establishes that
the Indemnity met the standard set forth in Section 1 of this
Article, or that the disallowed expenses were reasonable, or to
the extent that it does, the Board shall then find such standard
to have been met or the expenses to be reasonable, and shall
grant such indemnification, and shall also grant to the Indemnity
indemnification of the expenses incurred by him in connection
with the action or proceeding resulting in the judgment or other
final adjudication that such standard of conduct was met, or if
pursuant to such court determination such person is entitled to
less than the full amount of indemnification denied by the
Corporation, the portion of such expenses proportionate to the
amount of such indemnification so awarded. Neither the failure of
the Board to have made timely a determination prior to the
commencement of such suit that indemnification of the Indemnity
is proper in the circumstances because the Indemnity has met the
applicable standard of conduct set forth in Section 1, nor an
actual determination by the Board that the Indemnity has not met
such applicable standard of conduct, shall cerate a presumption
that the Indemnity has not met the applicable standard of
conduct. In any
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suite brought by the Indemnity to enforce a right to
indemnification, or by the Corporation to receive an advancement
of expenses pursuant to the terms of an undertaking, the burden
of proving that the Indemnity is not entitled to indemnification,
under this Article or otherwise, shall be on the Corporation.
(d) A finding by the Board pursuant to this Section 3 that the
standard of conduct set forth in Section 1 of this Article has
been met shall mean a finding of the Board or shareholders as
provided by law.
4. CONTRACTUAL ARTICLE
The rights conferred by this Article are contract rights which shall
not be abrogated by any amendment or repeal of this Article with
respect to events occurring prior to such amendment or repeal and
shall, to the fullest extent permitted by law, be retroactive to
events occurring prior to the adoption of this Article. No amendment
of the Business Corporate Law, insofar as it reduced the permissible
extent of the right of indemnification of an Indemnity under this
Article, shall be effective as to such person with respect to any
event, act or omission occurring or allegedly occurring prior to the
effective date if such amendment irrespective of the date of any claim
or legal action in respect thereto. This Article shall be binding on
any successor to the Corporation, including any corporation or other
entity which acquires all or substantially all of the Corporation's
assets.
5. NON-EXCLUSIVITY
The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which any person covered hereby may
be entitled other than pursuant to this Article. The Corporation is
authorized to enter into agreements with any such person providing
rights to indemnification or advancement of expenses in addition to
the provisions therefore in this Article, and the Corporation's
shareholders and its Board of Directors are authorized to adopt, in
their discretion, resolutions providing any such person with any such
rights.
6. INSURANCE
The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such
expense, liability or loss under this Article or applicable law.
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7. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION
The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification and the
advancement of expenses to any employee or agent of the Corporation
with the same scope and effect as provided in this Article to
directors and officers of the Corporation.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "1933 Act") may be permitted to directors,
officers or persons controlling the Registrant pursuant to the
foregoing provisions, the Registrant has been informed that in the
opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the 1933 Act
and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable
Item 8. Exhibits.
(a) Exhibits. The following Exhibits are filed herewith:
Exhibit Number Description of Document
5.1 Opinion of Herbert M. Jacobi, Esq., regarding the
legality of the securities being registered under this
Registration Statement.
24.1 Consent of Herbert M. Jacobi, counsel for the
Registrant (set forth in the opinion of counsel
included as Exhibit 5.1).
24.2 Consent of Jones Jensen & Co., independent public
accountants for the Registrant.
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include
material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material
change to such information in the Registration Statement; and
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(2) That, for the purpose of determining any liability under the
Securities Act of 1933 (the "1933 Act"), each such post-effective
amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof; and
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the
registrant's annual report pursuant to section 13(g) or section 15(d)
of the Exchange Act that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to officers, directors and controlling persons of the
Company, the Company has been advised that in the opinion of the
Securities and Exchange Commission, such indemnification is against
public policy as expressed in the 1933 Act and is therefore
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses
incurred or paid by an officer, director or controlling person in
connection with the securities being registered, the Company will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of competent jurisdiction the
question whether such indemnification by it is against public policy
as expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York and the State of New York, on the 3rd day of
November, 1997.
CHINA FOOD & BEVERAGE
COMPANY
By:/s/ James Tilton
-------------------------------
James Tilton
President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Date: November 3, 1997 /s/ James Tilton
-------------------------------
James Tilton, President
Date: November 3, 1997 /s/ Jane Zheng
-------------------------------
Jane Zheng, Secretary
[LETTERHEAD OF LAW OFFICES OF HERBERT M. JACOBI]
November 3, 1997
James Tilton, President
China Food & Beverage Company
82-66 Austin Street
Kew Gardens, New York 11415
Gentlemen:
I am securities counsel for China Food & Beverage Company ("China"). You
have asked me to render this opinion to China.
You have advised that:
1. China is current in its reporting responsibilities to the Securities and
Exchange Commission as mandated by the Securities Exchange Act of 1934, as
amended;
2. Stanley Merdinger is a director of China and has served in such capacity
for more than the last 6 months without compensation.
3. In order to induce Stanley Merdinger to continue to act as a director,
China has agreed to issue its securities to Stanley Merdinger.
4. The shares to be issued to Stanley Merdinger are pursuant to corporate
resolution and the approval of the Board of Directors and the shares to be
issued to Stanley Merdinger are to be registered pursuant to a Registration
Statement on Form S-8.
I have read such documents as have been made available to me. For purposes
of this opinion, I have assumed the authenticity of such documents.
<PAGE>
China Food & Beverage Company
November 3, 1997
Page 2
Based on the accuracy of the information supplied to me, it is my opinion
that China may avail itself of a Registration Statement on Form S-8 and is
qualified to do so, and further, it is my opinion that Stanley Merdinger, is a
proper person qualified to receive shares which are registered in a Registration
Statement on Form S-8.
I consent to the use of my name in the Registration Statement filed on Form
S-8.
Very truly yours,
/s/Herbert M. Jacobi
Herbert M. Jacobi
[Letterhead of Jones, Jensen & Company]
October 31, 1997
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the use of
our audit report dated June 26, 1997 (and to all references to our Firm)
included in or made a part of the Form S-8 registration statement of China Food
and Beverage Company (Formerly OMAP Holdings Incorporated and Subsidiaries.)
/s/ Jones, Jensen & Company
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Jones, Jensen & Company
