As filed with the Securities and Exchange Commission on August 2, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------
ALPINE LACE BRANDS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 22-2717823
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
111 Dunnell Road
Maplewood, New Jersey 07040
(Address, including zip code, of Registrant's principal executive offices)
Alpine Lace Brands, Inc.
1987 Stock Option Plan and
Purchase Agreements
(Full title of the Plan)
CARL T. WOLF, President
Alpine Lace Brands, Inc.
111 Dunnell Road
Maplewood, New Jersey 07040
(201) 378-8600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Robert H. Friedman, Esq.
Olshan Grundman Frome & Rosenzweig LLP
505 Park Avenue
New York, New York 10022
(212) 753-7200
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================
Proposed
Proposed maximum
Title of each class Amount maximum aggregate Amount of
of Securities to be to be offering price offering registration
registered registered per share price fee
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 per share 500,000(1)(2) $8.56(3) $4,280,000 $1,475.86
- ----------------------------------------------------------------------------------------------
Common Stock, par
value $.01 per share 13,000(2)(4) $4.50 $ 58,500 $20.17
==============================================================================================
</TABLE>
(1) The Contents of the Company's previously filed Registration Statement
on Form S-8 (Registration No. 33-62948) are incorporated herein by
reference.
(2) Pursuant to Rule 416, the registration statement also covers such
indeterminable additional securities as may become issuable as a result
of any future anti-dilution adjustment in accordance with the terms of
the Plan or the Purchase Agreements.
(3) Calculated in accordance with Rule 457(h) on the basis of the per share
average of high and low sales prices of the Common Stock on the Nasdaq
National Market System on July 28, 1995 ($8.56).
(4) Consists of shares of Common Stock with respect to which options have
been granted under the Purchase Agreements at an average exercise price
of $4.50 per share.
<PAGE>
ALPINE LACE BRANDS, INC.
--------------------
CROSS REFERENCE SHEET
Pursuant to Item 501(b) of Regulation S-K
Showing Location in Prospectus of Information
Required by Items of Form S-8
--------------------
ITEM NUMBER AND HEADING IN CAPTION OR
FORM S-8 REGISTRATION STATEMENT LOCATION IN PROSPECTUS
1. Forepart of the Registration Statement
and Outside Front Cover Page of Prospectus....... Forepart of the
Registration Statement;
Outside Cover Page of
Prospectus
2. Inside Front and Outside Back Cover Pages
of Prospectus.................................... Inside Front Cover Page
of Prospectus
3. Summary Information, Risk Factors and
Ratio of Earnings to Fixed Charges.............. General Information; Risk
Factors
4. Use of Proceeds................................. Use of Proceeds
5. Determination of Offering Price................. *
6. Dilution........................................ *
7. Selling Security Holders........................ Selling Stockholders
8. Plan of Distribution............................ Plan of Distribution
9. Description of Securities to be Registered...... *
10. Interests of Named Experts and Counsel.......... Legal Matters
11. Material Changes................................ *
12. Incorporation of Certain Information
by Reference.................................... Incorporation of Certain
Documents by Reference
13. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities..................................... *
- ------------------
* Not applicable.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED AUGUST 2, 1995
PROSPECTUS
264,501 SHARES
ALPINE LACE BRANDS, INC.
Common Stock ($.01 value)
This Prospectus relates to the reoffer and resale by certain selling
stockholders (the "Selling Stockholders") who may be deemed to be "affiliates"
of the Company as defined in Rule 405 of the Securities Act of 1933, as amended
(the "Securities Act"), of shares (the "Shares") constituting a portion of the
Common Stock, $.01 par value per share (the "Common Stock"), of Alpine Lace
Brands, Inc. (the "Company") that may be issued by the Company to the Selling
Stockholders upon the exercise of outstanding stock options granted under (i)
the Company's 1987 Stock Option Plan (the "1987 Plan") and (ii) various written
purchase agreements and written compensation contracts (collectively, the
"Purchase Agreements"). This Prospectus also relates to the reoffer and resale
of Shares to be acquired upon exercise of stock options that may be granted to
individuals who may be deemed to be "affiliates" of the Company (collectively,
the "Future Selling Stockholders") upon the exercise of outstanding stock
options to be granted under the 1987 Plan. If and when such options are granted
to the Future Selling Stockholders, the Company intends to distribute a
Prospectus Supplement as required by Rule 424(b) of the Securities Act. Such
Prospectus Supplement will specify the names of the Future Selling Stockholders
and the amount of Shares to be reoffered and sold by them.
The offer and sale of the Shares to the Selling Stockholders and the
Future Selling Stockholders were previously registered under the Securities Act.
The Shares are being reoffered and resold for the accounts of the Selling
Stockholders and the Future Selling Stockholders and the Company will not
receive any of the proceeds from the resale of the Shares.
The Selling Stockholders have advised the Company that the resale of their
Shares may be effected from time to time in one or more transactions on the
Nasdaq National Market System ("Nasdaq"), in negotiated transactions or
otherwise at market prices prevailing at the time of the sale or at prices
otherwise negotiated. See "Plan of Distribution." The Company will bear all
expenses in connection with the preparation of this Prospectus.
<PAGE>
AN INVESTMENT IN THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF
RISK. SEE "RISK FACTORS" AT PAGE 5 HEREOF.
The Company's Common Stock is traded on Nasdaq under the symbol "LACE." On
July 28, 1995, the last sale price for the Common Stock, as reported on Nasdaq,
was $8.38.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The date of this Prospectus is August __, 1995.
-2-
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549; 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661; and Seven World Trade Center, Suite 1300, New York, New
York 10048. Copies of such material can be obtained from the Public Reference
Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates.
TABLE OF CONTENTS
AVAILABLE INFORMATION........................................................3
GENERAL INFORMATION..........................................................5
RISK FACTORS.................................................................5
USE OF PROCEEDS..............................................................7
SELLING STOCKHOLDERS.........................................................8
PLAN OF DISTRIBUTION.........................................................9
LEGAL MATTERS................................................................9
ADDITIONAL INFORMATION.......................................................9
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<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December 31,
1994 and Quarterly Report on Form 10-Q for the quarter ended March 31, 1995 are
incorporated by reference in this Prospectus and shall be deemed to be a part
hereof. All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the termination of this
offering, are deemed to be incorporated by reference in this Prospectus and
shall be deemed to be a part hereof from the date of filing of such documents.
The Company's Application for Registration of its Common Stock under
Section 12(g) of the Exchange Act filed on April 9, 1987, is incorporated by
reference in this Prospectus and shall be deemed to be a part hereof.
The contents of the Company's registration statement on Form S-8 filed
with the Securities and Exchange Commission on May 17, 1993 (Registration No.
33-62948) are incorporated by reference herein.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, on the written or oral
request of any such person, a copy of any or all of the documents referred to
above which have been or may be incorporated in this Prospectus by reference,
other than exhibits to such documents. Written requests for such copies should
be directed to Alpine Lace Brands, Inc., 111 Dunnell Road, Maplewood, New Jersey
07040, Attention: Secretary. Oral requests should be directed to such officer
(telephone number (201) 378-8600).
No dealer, salesman or other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus in connection with the offer made hereby, and, if given or made, such
information or representa- tions must not be relied upon as having been
authorized by the Company or any Selling Stockholder. This Prospectus does not
constitute an offer to sell, or a solicitation of an offer to buy, the
securities offered hereby to any person in any state or other jurisdiction in
which such offer or solicitation is unlawful. The delivery of this Prospectus at
any time does not imply that information contained herein is correct as of any
time subsequent to its date.
-4-
<PAGE>
GENERAL INFORMATION
The Company is the leading seller of nutritional cheeses in the nation's
supermarket deli cases, with a market share of over 50%. The Company develops,
markets and sells nutritional (i.e., reduced salt, reduced cholesterol and
reduced fat or fat free) cheeses under its own branded labels. The Company's
products include a full line of products which have reduced salt, cholesterol
and fat levels as compared to conventional cheeses and a line of fat free
cheeses. The Company's cheeses are principally sold in supermarket deli cases
under the Alpine Lace(R) brand name. The Company's part-skim milk reduced fat
and low sodium swiss cheese is the number one selling brand of all swiss cheeses
in supermarket deli cases and, according to a recent survey undertaken by the
Company, the Alpine Lace(R) brand name is second only to Kraft(R) in unaided
consumer awareness.
The Company has utilized proprietary formulations and/or patented process
technology in the development of its core products. In contrast to certain
competitive cheese substitute and imitation cheese "nutritional" products, the
Company's products are all made from milk. The Company's products have the look,
taste, texture, feel and handling characteristics of conventional cheeses.
During 1994, approximately 85% of the Company's own branded cheese sales were
through supermarket deli cases and the remainder through supermarket dairy
cases. The Company believes that it currently controls in excess of 50% of the
nutritional cheese segment of the supermarket deli case market. The Company also
trades cheese and dairy commodity products through its MCT Dairies, Inc.
subsidiary.
The Company's principal executive offices are located at 111 Dunnell Road,
Maplewood, New Jersey 07040. The Company's telephone number at such location is
(201) 378-8600.
The Shares offered hereby were or will be purchased by the Selling
Stockholders or the Future Selling Stockholders upon exercise of options granted
to them under the 1987 Plan and will be sold for the accounts of the Selling
Stockholders and the Future Selling Stockholders.
RISK FACTORS
The securities offered hereby involve a high degree of risk. Prospective
investors should carefully consider the following risk factors before making an
investment decision.
History of Losses; Recent Restructuring. For the years ended December 31,
1994, 1993 and 1992, the Company sustained net losses of $3,122,989, $4,040,254
and $40,277, respectively. During 1994, while the Company generated pretax
earnings, the Company had restructuring and write down charges aggregating
$4,100,000. There
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<PAGE>
can be no assurance that the Company will achieve profitability or that it will
not incur further similar charges in the future.
Default under Indebtedness. As a result of the Company's recent
restructuring, it failed to meet certain covenants contained in its loan
agreement with its primary lender under which it had outstanding approximately
$7,000,000 of indebtedness at December 31, 1994. The lender waived those
defaults at December 31, 1994, and as of February 23, 1995, the lender amended
the covenants and the Company is no longer in default.
Dependence on Significant Customers. During 1994, the Company's largest
customer accounted for approximately 6% of the Company's own-label branded
cheese revenues and the ten largest customers accounted for approximately 31% of
such revenues. The loss of several of the ten largest customers might have a
material adverse effect on the Company's operations.
Competition in the Deli Counter. Many food companies with substantially
greater resources than those available to the Company market products for sale
in the supermarket deli counter. While the Company commands a dominant share in
the deli cheese segment, there can be no assurance that new competitors will not
enter this segment of the deli business.
Cheese Prices. Cheese costs represent a significant portion of the
Company's cost of goods sold. The Company's profitability is impacted by the
price of cheese. The Company's results are negatively impacted when the price of
cheese rises while they are positively impacted when the price of cheese
declines. Except for some relatively short-term price volatility, cheese prices
have remained relatively stable averaging $1.285 over the past several years.
The general pricing practice that the Company follows is to decrease prices when
cheese falls below $1.20/lb. and to increase prices when cheese rises above
$1.40/lb. Although the Company believes that the long-term prognosis for cheese
prices is favorable, no assurances can be given that cheese prices will not
rise.
Dependence on Key Personnel. The Company is dependent on several key
executives, the loss of any one of whom could have a material adverse impact on
the operations and prospects of the Company. Employment agreements have been
entered into with several of the Company's key senior managers and in addition,
the Company holds a key-man life insurance policy of $5,000,000 on the life of
Mr. Wolf.
Dependence on Suppliers. The Company purchases virtually 100% of its
cheese requirements from independent third party suppliers, and approximately
70% of its requirements from five suppliers. Any disruption in the operations of
these suppliers may have an adverse impact on the Company. The Company has
maintained strong
-6-
<PAGE>
relationships with its top five vendors since its founding in 1983 and has not
experienced any problems in sourcing cheese.
Control of the Company. Carl T. Wolf, the Company's Chairman of the Board,
President and Chief Executive Officer, beneficially owns approximately 34% of
the outstanding Common Stock. Since the Company's Certificate of Incorporation
and By-Laws do not provide for cumulative voting rights, Mr. Wolf has
significant power with respect to the election of the Board of Directors, and to
control the Company's management and affairs.
USE OF PROCEEDS
The Company will receive the exercise price of the options when exercised
by the holders thereof. Such proceeds will be used for working capital purposes
by the Company. The Company will not receive any of the proceeds from the
reoffer and resale of the Shares by the Selling Stockholders.
-7-
<PAGE>
SELLING STOCKHOLDERS
This Prospectus relates to the reoffer and resale of Shares issued or that
may be issued to the Selling Stockholders under the 1987 Plan or the Purchase
Agreements.
The following table sets forth (i) the number of shares of Common Stock
beneficially owned by each Selling Stockholder at July 28, 1995, (ii) the number
of Shares of Common Stock to be offered for resale by each Selling Stockholder
and (iii) the number and percentage of shares of Common Stock to be held by each
Selling Stockholder after completion of the offering.
<TABLE>
<CAPTION>
Number of shares of
Common Stock/
Percentage of Class to
Number of shares of Number of Shares be Owned After
Common Stock Owned at to be Offered for Completion of the
Name July 28, 1995 Resale Offering
- ---------------------------------------- ------------------------ ----------------- ------------------------
<S> <C> <C> <C>
Carl T. Wolf(1)............................ 1,706,601(2) 35,000 1,701,600/33.8
Marion F. Wolf(3).......................... 83,251(4) 10,500 80,000/1.6
Kenneth Meyers(5).......................... 85,185(6) 65,750 35,017/*
George S. Wenger(7)........................ 73,166(6) 65,750 22,998/*
Dominick F. Gonnella(8).................... 0 3,000 0
Arthur Karmel(9)........................... 32,750(10) 19,500 18,500/*
Richard Cheney(11)......................... 6,500(12) 9,000 5,000/*
Richard Hickok(13)......................... 13,169(14) 11,501 1,750/*
Howard Lorber(15).......................... 2,500(16) 12,000 0
Joseph Rosetti(17)......................... 7,767(18) 14,500 2,600/*
Stephen Sadove(19)......................... 0 9,000 0
Dr. Marvin Schiller(20).................... 5,500(12) 9,000 4,000/*
</TABLE>
* less than one percent
(1) Mr. Wolf has been the Chairman of the Board of Directors, President and
Chief Executive Officer of the Company since its inception in 1986. Mr.
Wolf is the spouse of Marion F. Wolf.
(2) Includes (i) 150,000 shares of Common Stock for which Mr. Wolf has
voting rights, (ii) 75,000 shares of Common Stock jointly owned with
Ms. Wolf and (iii) options to purchase 5,001 shares of Common Stock.
(3) Ms. Wolf has been a director of the Company since March 1986 and Vice
President - Food Service since January 1991. Ms. Wolf is the spouse of
Mr. Wolf.
(4) Includes (i) 75,000 shares of Common Stock jointly owned with Mr. Wolf
and (ii) options to purchase 3,251 shares of Common Stock.
(5) Mr. Meyers has been the Secretary of the Company since February 1986
and the President of its subsidiary, MCT Dairies, Inc. since May 1994.
(6) Includes options to purchase 50,168 shares of Common Stock.
(7) Mr. Wenger has been the Vice President/General Manager of the Company's
Branded Cheese Division and its predecessor since October 1985.
-8-
<PAGE>
(8) Mr. Gonnella has been the Vice President - Operations of the Company
since July 1994 and has been the Director of Operations of the Company
since April 1994. He was in the Production Planning and Purchasing
department prior thereto and a Vice President of the Company since May
1992.
(9) Mr. Karmel has been the Vice President - Finance of the Company since
January 1995, a Vice President of the Company since May 1992 and the
Controller of the Company since March 1989.
(10) Includes options to purchase 14,250 shares of Common Stock.
(11) Mr. Cheney has been a director of the Company since August 1994.
(12) Includes options to purchase 1,500 shares of Common Stock.
(13) Mr. Hickok has been a Director of the Company since March 1988.
(14) Includes options to purchase 11,419 shares of Common Stock.
(15) Mr. Lorber has been a Director of the Company since September 1993.
(16) Consists of options to purchase 2,500 shares of Common Stock.
(17) Mr. Rosetti has been a Director of the Company since August 1992.
(18) Includes options to purchase 5,167 shares of Common Stock.
(19) Mr. Sadove has been a Director of the Company since December 1994.
(20) Dr. Schiller has been a director of the Company since August 1994.
PLAN OF DISTRIBUTION
It is anticipated that all of the Shares will be offered by the Selling
Stockholders from time to time in the open market, either directly or through
brokers or agents, or in privately negotiated transactions. The Selling
Stockholders have advised the Company that they are not parties to any
agreement, arrangement or understanding as to such sales.
LEGAL MATTERS
Certain legal matters in connection with the issuance of the Shares
offered hereby have been passed upon for the Company by Messrs. Olshan Grundman
Frome & Rosenzweig LLP, New York, New York 10022.
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission a
Registration Statement on Form S-8 under the Securities Act with respect to the
Shares offered hereby. For further information with respect to the Company and
the securities offered hereby, reference is made to the Registration Statement.
Statements contained in this Prospectus as to the contents of any contract or
other document are not necessarily complete, and in each instance, reference is
made to the copy of such contract or document filed as an exhibit to the
Registration Statement, such statement being qualified in all respects by such
reference.
-9-
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Alpine Lace Brands, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission") are incorporated
herein by reference and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994;
(b) The Company's Quarterly Report for the quarter ended
March 31, 1995;
(c) The description of the Company's securities contained
in the Company's Registration Statement on Form 8-A filed April 9,
1987.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13, 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of the filing of such reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Certain legal matters in connection with the issuance of the Shares
offered hereby have been passed upon for the Company by Messrs. Olshan Grundman
Frome & Rosenzweig LLP, New York, New York 10022.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The by-laws of the Company provide that the Company shall indemnify to
the extent permitted by Delaware law, any person whom it may indemnify
thereunder, including directors, officers, employees and agents of the Company
and its predecessor.
The Company also maintains a $2,000,000 directors and officers
insurance policy.
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<PAGE>
Section 145 of the Delaware General Corporation Law provides as
follows:
(a) A corporation may indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than action by or in the right
of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful.
(b) A corporation may indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the corporation unless
and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
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<PAGE>
(c) To the extent that a director, officer, employee or
agent of a corporation has been successful on the merits or otherwise
in defense of any action, suit or proceeding referred to in subsections
(a) and (b) of this section, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
(d) Any indemnification under subsections (a) and (b) of
this section (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee
or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b) of
this section. Such determination shall be made (1) by a majority vote
of the directors who are not parties to such action, suit or proceeding
even though less than a quorum, or (2) if there are no such directors,
or if such directors so direct, by independent legal counsel in a
written opinion, or (3) by the stockholders.
(e) Expenses incurred by an officer or director in
defending a civil or criminal action, suit or proceeding may be paid by
the corporation in advance of the final disposition or such action,
suit or proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the corporation
as authorized in this section. Such expenses incurred by other
employees and agents may be paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of this
section shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether
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<PAGE>
or not the corporation would have the power to indemnify him against
such liability under this section.
(h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had the power and
authority to indemnify its directors, officers, and employees or
agents, so that any person who is or was a director, officer, employee
or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this
section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any such excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the
request of the corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on,
or involves services by, such director, officer, employee, or agent
with respect to any employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner
reasonably believed to be in the interest of the participants and
beneficiaries of any employee benefit plan shall be deemed to have
acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this section shall, unless
otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such
a person.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
-13-
<PAGE>
ITEM 8. EXHIBITS
EXHIBIT INDEX
4(a) - 1987 Stock Option Plan, as amended to date (the "1987
Plan").
4(b) - Form of Option Agreement for the 1987 Plan.
4(c) - Agreement dated October 21, 1994, by and between the
Company and Kim Alexis.
4(d) - Agreement dated October 21, 1994, by and between the
Company and Michelle Bega.
4(e) - Agreement dated October 21, 1994, by and between the
Company and Ray Manzella.
4(f) - Agreement dated November 4, 1992, by and between the
Company and Joseph Rosetti.
4(g) - Agreement dated November 4, 1992, by and between the
Company and Richard Hickok.
5 - Opinion of Olshan Grundman Frome & Rosenzweig LLP.
23(a) - Consent of Grant Thornton LLP, independent auditors.
23(b) - Consent of Olshan Grundman Frome & Rosenzweig LLP
(included in its opinion filed as Exhibit 5).
24 - Powers of Attorney (included on signature page to this
Registration Statement).
ITEM 9. UNDERTAKINGS.
A. 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:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a
-14-
<PAGE>
fundamental change in the information set
forth in the Registration Statement;
(iii) To include any 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;
provided, however, that paragraphs (i) and (ii) above
do not apply if the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated
by reference in the Registration Statement;
(2) That, for the purposes of determining any liability
under the Securities Act of 1933, 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 that remain unsold at the termination of
the offering.
B. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in this 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.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities
-15-
<PAGE>
Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by a controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
D. The undersigned registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to
whom the prospectus is sent or given, a copy of the
registrant's latest annual report to stockholders that is
incorporated by reference in the prospectus and furnished
pursuant to and meeting the requirements of Rule 14a-3 or Rule
14c-3 under the Securities Exchange Act of 1934; and, where
interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the
prospectus, to deliver, or cause to be delivered to each
person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial
information.
-16-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant 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 Township of Maplewood, State of New Jersey on August 2, 1995.
ALPINE LACE BRANDS, INC.
By:/s/ Carl T. Wolf
-----------------------------------------
Carl T. Wolf, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Carl T. Wolf his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for and in his or her name, place and stead, in any and all capacities, to sign
any or all amendments to this Registration Statement, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his or her
substitute, may lawfully do or cause to be done by virtue hereof.
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.
SIGNATURE TITLE DATE
/s/ Carl T. Wolf
- ---------------------------- Chairman of the August 2, 1995
Carl T. Wolf Board, President and
Chief Executive
Officer (principal
executive officer)
and Director
/s/ Arthur Karmel
- ---------------------------- Vice President - August 2, 1995
Arthur Karmel Finance (principal
financial officer)
/s/ Marion F. Wolf
- ---------------------------- Vice President-Food August 2, 1995
Marion F. Wolf Service and Director
-17-
<PAGE>
/s/ Richard Cheney
- ---------------------------- Director August 2, 1995
Richard Cheney
/s/ Howard M. Lorber
- ---------------------------- Director August 2, 1995
Howard M. Lorber
- ---------------------------- Director August , 1995
Richard S. Hickok
- ---------------------------- Director August , 1995
Joseph R. Rosetti
/s/ Stephen Sadove
- ---------------------------- Director August 2, 1995
Stephen Sadove
/s/ Marvin Schiller
- ---------------------------- Director August 2, 1995
Marvin Schiller
-18-
ALPINE LACE BRANDS, INC.
1987 STOCK OPTION PLAN (AS AMENDED)
SECTION 1 -- PURPOSE
The purpose of the 1987 Stock Option Plan is to advance the
interests of Alpine Lace Brands, Inc. and its stockholders by strengthening
Alpine Lace Brands, Inc's ability to attract and retain employees and directors
and to furnish additional incentives to such persons by encouraging them to
become owners of Common Stock.
SECTION 2 -- DEFINITIONS
2.1 "Committee" shall have the meaning set forth in Section 5.
2.2 "Code" means the Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder.
2.3 "Company" means Alpine Lace Brands, Inc., a Delaware
corporation.
2.4 "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended, and the rules and regulations promulgated thereunder.
2.5 "Fair Market Value", when used in connection with Shares
on a certain date, means the reported closing bid price of the Shares (if then
traded in the over-the-counter market other than on the National Market System
of the National Association of Securities Dealers Automated Quotations System
("NAS- DAQ")) or the reported closing price of the Shares (if then traded on
NASDAQ's National Market System or on a national securities exchange) on the day
prior to such date, or if there was no such price reported for such date, on the
next preceding date for which such price was reported.
2.6 "Incentive Stock Option" means a Stock Option which is an
"incentive stock option" as defined in Section 422(b) of the Code.
2.7 "Optionee" means a person to whom a Stock Option has been
granted, or, where applicable, such person's legal representative.
2.8 "Plan" means this 1987 Stock Option Plan.
2.9 "Reserved Shares" shall have the meaning set forth in
Section 3.
2.10 "Shares" means shares of common stock of the Company of
par value $.01 each.
2.11 "Stock Option" means an option for Shares granted under
the Plan, including an Incentive Stock Option.
2.12 "Stock Option Agreement" shall have the meaning set forth
in Section 6.1.
SECTION 3 -- SHARES SUBJECT TO THE PLAN
Subject to adjustments authorized by Section 8 hereof, no more
than 1,000,000 Shares (the "Reserved Shares") may be issued pursuant to the
Plan. The number of Reserved Shares shall be reduced by the number of Shares
subject to outstanding Stock Options and the number of Shares issued upon the
exercise of
<PAGE>
Stock Options and shall be increased by the number of shares not purchased under
Stock Options which have expired or have been terminated or cancelled.
SECTION 4 -- ELIGIBILITY AND LIMITATIONS
4.1 Eligible Participants. Any employee, including officers,
and any director, whether or not an employee, of the Company or any subsidiary
thereof shall be eligible to receive Stock Options.
4.2 Limitation on Options. No person shall be granted a Stock
Option to purchase a number of Shares which, when added to the Shares subject
to, or purchased pursuant to, Stock Options granted to such person under the
Plan which have not expired unexercised or been terminated or cancelled, shall
exceed 100,000 Shares.
4.3 Special Limitation on Incentive Stock Options. The
aggregate fair market value (determined at the time the Option is granted) of
all Shares with respect to which Incentive Stock Options granted to an Optionee
are exercisable for the first time by such Optionee during any calendar year
shall not exceed $100,000.
4.4 No Right of Employment. Nothing in the Plan or in any
Stock Option Agreement shall confer any right on an employee or director to
continue as an employee or director of the Company or its subsidiaries or shall
interfere in any way with any right of the Company or its subsidiaries to
terminate such employee's or director's status as such at any time.
SECTION 5 -- ADMINISTRATION OF THE PLAN
The Plan shall be administered by either (i) the Board of
Directors of the Company or (ii) if so determined by such Board, a committee of
the Board of not less than two directors (the Board or such committee, as the
case may be, being herein referred to as the "Committee"). The Committee shall
have full power to construe and interpret the Plan, to establish rules for its
administration and (subject to Section 6.1) to grant Stock Options. The
Committee may (subject to Section 6.1) establish rules setting forth terms and
conditions for a specified group of Stock Options. The Committee may act by a
majority of a quorum (a quorum being a majority of the members of such
Committee) present at a called meeting or by unanimous written consent of all of
its members. All actions taken and decisions made by the Committee pursuant to
the Plan shall be binding and conclusive on all persons interested in the Plan.
SECTION 6 -- STOCK OPTIONS
6.1 Stock Option Agreements. (a) Subject to subparagraph (b),
Stock Options may be granted, at the discretion of the Committee, to eligible
employees and directors.
(b) Stock Options shall only be granted to Directors of the
Company who are not also employees of the Company or any subsidiary in
accordance with this subparagraph (b). Each Director of the Company who is not
also an employee of the Company or any subsidiary thereof shall automatically
receive, on the first business day of November in each year commencing 1993, a
Stock Option to purchase 6,600 Shares at an option price per Share equal to the
then Fair Market Value. In addition, each such Director who becomes such a
Director after January 11, 1993 shall, upon becoming a Director, automatically
receive a Stock Option to purchase 6,600 Shares at an option price per Share
equal to the then Fair Market Value. The foregoing numbers of Shares shall be
subject to adjustment in accordance with Section 8. Stock Options granted under
this subparagraph (b) shall be upon the same terms (other than number of Shares,
option price and status as Incentive Stock Options) as the Stock Options granted
under the Plan to certain employees on November 4, 1992.
-2-
<PAGE>
(c) Subject to subparagraph (b), Stock Options granted under
the Plan shall be subject to such terms and conditions (including, but not
limited to, restrictions on the sale of shares received upon exercise of Stock
Options) consistent with the terms of the Plan as shall be determined from time
to time by the Committee and shall be evidenced by agreements in such form as
shall be determined from time to time by the Committee (the "Stock Option
Agreements").
6.2 Exercise of Stock Option.
(A) Time of Exercise. Subject to Section 6.1, a Stock Option
Agreement may contain such waiting periods, exercise dates and restrictions on
exercise (including, but not limited to, periodic installments) as may be
determined by the Committee at the time of grant, provided, however, that in no
case shall any Stock Option be exercisable for a period exceeding ten years.
(B) Purchase Price. The option price per share of Shares
deliverable upon the exercise of a Stock Option shall not be less than 100% of
the Fair Market Value on the date the Stock Option is granted.
(C) Exercise of Stock Options and Method of Payment. Stock
Options shall be exercised by (i) giving written notice thereof to the Company's
Secretary, and (ii) paying the option price. In addition to any other method of
payment which may be acceptable to the Committee, payment may be effected,
either in whole or in part, by the surrender to the Company of outstanding
Shares. Any Shares so surrendered shall bc valued at the Fair Market Value on
the date on which such Shares are surrendered. At the discretion of the
Committee, the Stock Option Agreement may provide that Option Shares may be
issued in the name of the Optionee and another person jointly with right of
survivorship.
6.3 Termination of Employment.
(A) The Committee may establish a period during which an
Optionee whose status as an employee or director with the Company or one of its
subsidiaries terminated for any reason other than the Optionee's death may
exercise those Stock Options which were exercisable on the date of the
Optionee's termination; provided, however, that no Stock Option shall be
exercisable after the date it expires by its terms. The period so established by
the Committee shall not exceed twelve months except that the applicable Stock
Option Agreement may provide for tolling of such period if the Optionee, after
such termination of status, provides services to the Company or any of its
subsidiaries as an employee, officer, director or independent contractor. The
Committee may amend an already outstanding Stock Option Agreement to add a
provision permitted by the immediately preceding sentence, to extend the period
referred to in the first sentence of this paragraph to a period not exceeding
twelve months (exclusive of any such tolling), or both, and no such amendment,
by itself, shall be deemed to constitute the grant of a new Stock Option for
purposes of this Plan; provided, however, that this sentence shall not be
determinative of whether any such amendment constitutes a new grant for purposes
of qualification as an Incentive Stock Option.
(B) The Committee may establish a period during which the
legal representative of an Optionee who died while an employee or director of
the Company or one of its subsidiaries or during any grace period for the
exercise of Stock Options referred to in (A) above may exercise those Stock
Options which were exercisable on the date of the Optionee's death; provided,
however, that such period shall not exceed fifteen months and no Stock Option
shall be exercisable after the date it expires by its terms.
6.4 Repurchase of Options. At the discretion of the Committee,
the Company may repurchase a previously granted Stock Option from an Optionee by
mutual agreement with such Optionee before said Stock Option has been exercised;
provided, however, that the amount paid to the Optionee shall not exceed the
amount by which the Fair Market Value of the Shares under the Stock Option at
the time of such repurchase exceeds the exercise price of such Shares.
6.5 Listing and Registration. Each Stock Option shall be
subject to the requirement that, if at any time the Board of Directors of the
Company shall determine, in its discretion, that the listing, registration or
qualification of Shares subject to such Stock Option upon any securities
exchange or under any state or
-3-
<PAGE>
federal law, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of, or in connection with, the granting of
such Stock Option or the issue or purchase of Shares thereunder, no such Stock
Option may be exercised in whole or in part unless such listing, registration,
qualification, consent or approval shall have been effected or obtained free of
any conditions not acceptable to the Board of Directors.
6.6 Withholding. The Company shall have the right to deduct
from all amounts payable in cash to an Optionee under this Plan any taxes
required by law to be withheld with respect to such cash payments or any amounts
required to be withheld in order for the Company to claim an income tax
deduction with respect to such cash payments. The Company shall have the right
to require an Optionee or other person entitled to receive Shares under this
Plan to pay to the Company the amount which the Company is or will be required
to withhold with respect to the issuance of such Shares in order for the Company
to pay taxes or to claim an income tax deduction with respect to the issuance of
such Shares. In lieu of such payment, the Company will be entitled, at the
discretion of the Committee, to retain a sufficient number of such Shares
(valued at the Fair Market Value on the date of exercise) to cover the amount
required to be withheld.
SECTION 7 -- NON-TRANSFERABILITY OF STOCK OPTIONS
Stock Options granted under the Plan are not transferable by
an Optionee other than by will, by the laws of descent and distribution, or (if
authorized in the applicable Stock Option Agreement) pursuant to a qualified
domestic relations order ("QDRO") as defined by the Code or Title I of ERISA.
During the Optionee's lifetime, Stock Options shall be exercised only by such
Optionee, such Optionee's guardian or legal representative, or (if authorized in
the applicable Stock Option Agreement) such Optionee's transferee pursuant to a
QDRO.
SECTION 8 -- ADJUSTMENTS IN THE EVENT OF CHANGES IN CAPITAL STRUCTURE OR
REORGANIZATION
8.1 Changes in Capital Structure. In the event of a change in
the corporate structure or Shares of the Company, the Board of Directors
(subject to any required action by the stockholders and upon the recommendation
of the Committee) shall make such equitable adjustments, so long as it protects
Optionees against dilution, as it may deem appropriate in the number and kind of
Reserved Shares and, with respect to outstanding Stock Options, in the number
and kind of shares covered thereby, and in the exercise price of such Stock
Options. For the purpose of this Section, a change in the corporate structure or
Shares of the Company shall include, but is not limited to, changes resulting
from a recapitalization, stock split, reverse stock split, stock dividend or
rights offering.
8.2 Reorganization, etc. Upon the effective date of the
dissolution or liquidation of the Company or of a reorganization, merger or
consolidation of the Company with one or more corporations in which the Company
is not the surviving corporation, or of a transfer of substantially all of the
property or more than 80 percent of the then outstanding Shares of the Company
to another person or entity not controlled by the Company's stockholders, the
Plan shall terminate, and Optionees shall have such period to exercise their
Stock Options as may be determined by the Committee, which in no case shall be
less than 60 days, and, on the last day of such period, any outstanding Stock
Options which have not been exercised shall terminate, unless written provision
is made in connection with such transaction for the continuation of the Plan and
for the assumption of the Stock Options granted, or for the substitution of new
options covering the shares of a successor employer corporation, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares and price per share, in which event the Plan and the Stock Options
previously granted or new options substituted therefor shall continue in the
manner and under the terms so provided. Notwithstanding anything to the contrary
contained in this Section 8.2, no Stock Option shall be exercisable after the
date it expires by its terms.
-4-
<PAGE>
SECTION 9 -- RIGHTS AS STOCKHOLDERS
A participant shall have no rights whatsoever as a stockholder
of the Company with respect to any Shares covered by a Stock Option until the
date of the issuance of a stock certificate to such participant upon exercise
pursuant to such Stock Option.
SECTION 10 -- AMENDMENT
The Company's Board of Directors, upon recommendation of the
Committee, shall have the power to amend or revise the terms of the Plan or any
part thereof (including, but not limited to, amending or revising the Plan to
conform to requirements of the Code governing the tax treatment of stock options
now or hereafter in effect), without further action of the stockholders;
provided, however, that no such amendment or revision shall impair or restrict
any rights under any outstanding unexercised Stock Option without the written
consent of the holder of such Stock Option; and provided, further, that no such
amendment or revision shall, without stockholder approval (a) increase the total
number of the Reserved Shares, (b) add to the class of participants eligible to
receive Stock Options, or (c) change Section 4.2, 6.2 or 6.4 of the Plan to
increase the rights of existing or prospective Optionees. Section 6.1(b) of the
Plan shall not be amended more than once every six months, other than to comport
with changes in the Code or ERISA.
SECTION 11 -- EFFECTIVE DATE AND TERMINATION OF PLAN
11.1 Effective Date. The effective date of the Plan shall be
May 13, 1987.
11.2 Termination. The Board of Directors may terminate the
Plan at any time with respect to any Shares that are not subject to Stock
Options. Unless terminated earlier by the Board of Directors, the Plan shall
terminate ten years after the effective date and no Stock Options shall be
granted under the Plan after such date. Termination of the Plan under this
Section 11 will not affect the rights and obligations of any Optionee with
respect to Stock Options granted prior to termination.
-5-
INCENTIVE STOCK OPTION AGREEMENT
AGREEMENT dated between ALPINE LACE
BRANDS, INC. (the "Company") and (the "Employee").
It is agreed as follows:
1. Grant of Option. The Company grants to the Employee the
option to purchase ___ shares of its Common Stock, par value $___ per share, at
a price of $____ per share, which is not less than the fair market value on the
date of this agreement.
2. Dates When Exercisable. The options vest one third per
year for __ years beginning with ___ on the anniversary date of
_________________, _____________________ and _____________________.
3. Method of Exercise. The option may be exercised as to
any part of the shares which may then be purchased by giving to the Secretary of
the Company at 111 Dunnell Road, Maplewood, New Jersey 07040, a written notice,
signed by the Employee, specifying the number of shares which the Employee
wishes to purchase, accompanied by cash or a certified or bank's cashier's check
payable to the order of the Company for the option price for the number of
shares specified. The Company shall promptly deliver to the Employee a stock
certificate for the shares so purchased.
4. Termination. The option shall terminate upon the
occurrence of the earliest of the following events:
a. Six months after the involuntary termination of
the Employee's employment other than for cause or
by reason of the Employee's death or permanent
disability (unless the Employee dies within such
six-month period, in which event subparagraph (d)
below controls);
b. Six months after the Employee's normal retirement
or early retirement with the consent of the
Company pursuant to any retirement plan;
c. Voluntary termination of the Employee's employment
or termination of the Employee's employment or
cause;
d. One year after the Employee's death if the
Employee dies while employed by the Company or
during the six month period immediately following
(i) the involuntary termination of the Employee's
employment other than for cause
<PAGE>
or (ii) the Employee's retirement pursuant to
subparagraph (b) above;
e. One year after the termination of the Employee's
employment by reason of his or her permanent
disability (within the meaning of section
105(d)(4) of the Internal Revenue Code of 1986) if
the Employee becomes permanently disabled while
employed by the Company; or
f. Expiration of ten years from the date of this
agreement.
5. Transferability of Option. The option shall not be
transferable by the Employee in whole or in part other than by will or the laws
of descent and distribution and shall be exercisable during the Employee's
lifetime only by the Employee.
6. Adjustment of Number of Shares and Option Price. If the
outstanding shares of the Company's Common Stock are subdivided, consolidated,
increased, decreased, changed into or exchanged for a different number or kind
of shares or securities of the Company through reorganization, merger,
recapitalization, reclassification, capital adjustment or otherwise, or if the
Company shall issue Common Stock as a dividend or upon a stock split, then the
number and kind of shares subject to the option and the exercise price under the
option shall be appropriately adjusted. However, no such adjustment shall change
the total exercise price applicable to the unexercised portion of the option.
7. Rights as Stockholder or Employee. The Employee shall
have no rights as a stockholder in the shares subject to the option until
exercise of the option, payment of the option price, and delivery to him or her
of certificates for the shares. This agreement shall not confer upon the
Employee any right to continue as an employee of the Company or any of its
subsidiaries or interfere in any way with the right of the Company or any such
subsidiary to terminate the Employee's employment at any time.
8. Investment Representation. Unless the shares to be
acquired upon the exercise of the option may at any time of acquisition be
lawfully sold to the optionee in accordance with a then currently effective
registration statement or post-effective amendment under the Securities Act of
1933, the Employee shall provide the Company, as a condition to the delivery of
any stock certificates, with appropriate evidence, satisfactory in form and
substance to the Company, that he or she is acquiring the shares for investment
and not with a view to the distribution of the shares or any interest in the
shares and a representation to the effect that the Employee shall make no sale
or other disposition of the shares unless (a) the Company shall have received an
opinion of counsel satisfactory to it in form and substance that the sale or
-2-
<PAGE>
other disposition may be made without registration under the then applicable
provisions of the Securities Act of 1933 and the related rules and regulations
of the Securities and Exchange Commission, or (b) the shares shall be included
in a currently effective registration statement or post-effective amendment
under the Securities Act of 1933. The certificates representing the shares may
bear an appropriate legend giving notice of the foregoing restriction on
transfer of the shares.
9. Subject to Plan. The option has been granted to the
Employee under the Company's Employee Stock Option Plan (the "Plan"), the
provisions of which are incorporated in this agreement by reference. If there is
any conflict between the provisions of this agreement and the provisions of the
Plan, the provisions of the Plan shall govern.
10. Binding Effect. This agreement shall be binding upon
the heirs, executors, administrators and successors of the parties. The validity
or enforceability of the option shall not be affected by whether or not the
option qualifies as an incentive stock option under Section 422A of the Internal
Revenue Code of 1986.
ALPINE LACE BRANDS, INC.
BY:------------------------------------
---------------------------------------
Employee
-3-
ALPINE LACE BRANDS INC.
11 DUNNELL ROAD
MAPLEWOOD, NEW JERSEY 07040
October 21, 1994
Ms. Kim Alexis
22792 Sky View Way
Laguna Niguel, CA 92677
Dear Ms. Alexis:
We are pleased to inform you that effective today the Board of Directors of
Alpine Lace Brands, Inc.(the "Company") granted to you an option (the "Option")
to purchase 3,000 shares (the "Shares") of the Company's authorized but unissued
common stock, par value $.01 per share ("Common Stock"), at a purchase price
equal to $4.50 per share.
The Option represented hereby is immediately exercisable. You must purchase a
minimum of 50 Shares each time you choose to purchase Shares, except to purchase
the remaining Shares available to you. This Option, to the extent not previously
exercised, will expire on October 21, 2004.
The Option hereby granted to you is not transferable in whole or in
part.
Exercise of the Option may be effected by delivering to the Company,
at its principal offices, a notice of exercise in the form annexed hereto as
Exhibit A, together with your certified or cashier's check payable to the
Company in an amount equal to the number of Shares you are purchasing multiplied
by the purchase price per Share set forth herein. The Option granted to you
hereunder has not been registered under the Securities Act of 1933, as amended
(the "Act"), and is not being acquired by you with a view towards distribution
for resale and may not be mortgaged, pledged, hypothecated or otherwise
transferred without an effective registration statement for such Option under
the Act or an opinion of counsel for the Company that registration is not
required under the Act. Any of the Shares issued upon the exercise of the Option
shall bear the following legend, unless previously registered by the Company for
resale:
"The shares represented by this certificate have
not been registered under the Securities Act
<PAGE>
of 1933, as amended. These shares have been
acquired for investment and not with a view to
distribution or resale and may not be sold or
transferred in the absence of an effective
registration statement for such shares under the
Securities Act of 1933 or an opinion of counsel
for the Company that registration is not required
under such Act."
In the event that the Company shall at any time prior to the
expiration of this Option and prior to the exercise thereof: (i) declare or pay
to the holders of the Common Stock a dividend payable in any kind of shares of
stock of the Company; or (ii) change or divide or otherwise reclassify its
Common Stock into the same or a different number of shares with or without par
value, or into shares of any class or classes; or (iii) consolidate or merge
with, or transfer its property as an entirety or substantially all of its assets
to any other corporation; or (iv) make any distribution of its assets to holders
of its Common Stock as a liquidation, or partial liquidation dividend or by way
of return of capital; then, upon the subsequent exercise of this Option, the
purchase price of the Shares issuable upon the exercise hereof shall be
appropriately adjusted by the Board of Directors of the Company so that you
shall receive for the exercise price, in addition to or in substitution for the
Shares to which you would be entitled upon such exercise, such additional shares
of stock of the Company, or such reclassified shares of stock of the Company, or
such securities or property of the Company resulting from such consolidation or
merger or transfer, of such assets of the Company, which you would have been
entitled to receive had you exercised this Option prior to the happening of any
of the foregoing events.
This Option does not confer upon you any right whatsoever as a
stockholder of the Company. Upon the exercise of this Option, the subscription
form attached hereto must be duly executed and the accompanying instructions for
registration of the stock filled in.
This Option shall be binding upon any successors or assigns of the
Company.
-2-
<PAGE>
If the foregoing correctly sets forth our understanding, please
indicate your acceptance by signing this letter in the space provided below.
Very truly yours,
ALPINE LACE BRANDS, INC.
By:/s/ Carl T. Wolf
------------------------------------
Carl T. Wolf, Chairman
of the Board, President
and Chief Executive Officer
AGREED AND ACCEPTED:
/s/ Kim Alexis
- --------------------------
Kim Alexis
-3-
ALPINE LACE BRANDS INC.
11 DUNNELL ROAD
MAPLEWOOD, NEW JERSEY 07040
October 21, 1994
Ms. Michelle Bega
c/o Rogers & Cowan, Inc.
10000 Santa Monica Blvd.
Los Angeles, CA 90067-7007
Dear Ms. Bega:
We are pleased to inform you that effective today the Board of Directors of
Alpine Lace Brands, Inc.(the "Company") granted to you an option (the "Option")
to purchase 1,000 shares (the "Shares") of the Company's authorized but unissued
common stock, par value $.01 per share ("Common Stock"), at a purchase price
equal to $4.50 per share.
The Option represented hereby is immediately exercisable. You must purchase a
minimum of 50 Shares each time you choose to purchase Shares, except to purchase
the remaining Shares available to you. This Option, to the extent not previously
exercised, will expire on October 21, 2004.
The Option hereby granted to you is not transferable in whole or in
part.
Exercise of the Option may be effected by delivering to the Company,
at its principal offices, a notice of exercise in the form annexed hereto as
Exhibit A, together with your certified or cashier's check payable to the
Company in an amount equal to the number of Shares you are purchasing multiplied
by the purchase price per Share set forth herein. The Option granted to you
hereunder has not been registered under the Securities Act of 1933, as amended
(the "Act"), and is not being acquired by you with a view towards distribution
for resale and may not be mortgaged, pledged, hypothecated or otherwise
transferred without an effective registration statement for such Option under
the Act or an opinion of counsel for the Company that registration is not
required under the Act. Any of the Shares issued upon the exercise of the Option
shall bear the following legend, unless previously registered by the Company for
resale:
"The shares represented by this certificate have
not been
<PAGE>
registered under the Securities Act of 1933, as
amended. These shares have been acquired for
investment and not with a view to distribution or
resale and may not be sold or transferred in the
absence of an effective registration statement for
such shares under the Securities Act of 1933 or an
opinion of counsel for the Company that
registration is not required under such Act."
In the event that the Company shall at any time prior to the
expiration of this Option and prior to the exercise thereof: (i) declare or pay
to the holders of the Common Stock a dividend payable in any kind of shares of
stock of the Company; or (ii) change or divide or otherwise reclassify its
Common Stock into the same or a different number of shares with or without par
value, or into shares of any class or classes; or (iii) consolidate or merge
with, or transfer its property as an entirety or substantially all of its assets
to any other corporation; or (iv) make any distribution of its assets to holders
of its Common Stock as a liquidation, or partial liquidation dividend or by way
of return of capital; then, upon the subsequent exercise of this Option, the
purchase price of the Shares issuable upon the exercise hereof shall be
appropriately adjusted by the Board of Directors of the Company so that you
shall receive for the exercise price, in addition to or in substitution for the
Shares to which you would be entitled upon such exercise, such additional shares
of stock of the Company, or such reclassified shares of stock of the Company, or
such securities or property of the Company resulting from such consolidation or
merger or transfer, of such assets of the Company, which you would have been
entitled to receive had you exercised this Option prior to the happening of any
of the foregoing events.
This Option does not confer upon you any right whatsoever as a
stockholder of the Company. Upon the exercise of this Option, the subscription
form attached hereto must be duly executed and the accompanying instructions for
registration of the stock filled in.
This Option shall be binding upon any successors or assigns of the
Company.
-2-
<PAGE>
If the foregoing correctly sets forth our understanding,
please indicate your acceptance by signing this letter in the space provided
below.
Very truly yours,
ALPINE LACE BRANDS, INC.
By:/s/ Carl T. Wolf
------------------------------------
Carl T. Wolf, Chairman
of the Board, President
and Chief Executive Officer
AGREED AND ACCEPTED:
/s/ Michelle Bega
- --------------------------
Michelle Bega
-3-
ALPINE LACE BRANDS INC.
11 DUNNELL ROAD
MAPLEWOOD, NEW JERSEY 07040
October 21, 1994
Mr. Ray Manzella
c/o Manzella Personal Management, Inc.
345 North Maple Drive - Suite 185
Beverly Hills, CA 90210
Dear Mr. Manzella:
We are pleased to inform you that effective today the Board of Directors of
Alpine Lace Brands, Inc.(the "Company") granted to you an option (the "Option")
to purchase 1,000 shares (the "Shares") of the Company's authorized but unissued
common stock, par value $.01 per share ("Common Stock"), at a purchase price
equal to $4.50 per share.
The Option represented hereby is immediately exercisable. You must purchase a
minimum of 50 Shares each time you choose to purchase Shares, except to purchase
the remaining Shares available to you. This Option, to the extent not previously
exercised, will expire on October 21, 2004.
The Option hereby granted to you is not transferable in whole or in
part.
Exercise of the Option may be effected by delivering to the Company,
at its principal offices, a notice of exercise in the form annexed hereto as
Exhibit A, together with your certified or cashier's check payable to the
Company in an amount equal to the number of Shares you are purchasing multiplied
by the purchase price per Share set forth herein. The Option granted to you
hereunder has not been registered under the Securities Act of 1933, as amended
(the "Act"), and is not being acquired by you with a view towards distribution
for resale and may not be mortgaged, pledged, hypothecated or otherwise
transferred without an effective registration statement for such Option under
the Act or an opinion of counsel for the Company that registration is not
required under the Act. Any of the Shares issued upon the exercise of the Option
shall bear the following legend, unless previously registered by the Company for
resale:
"The shares represented by this certificate have
not been
<PAGE>
registered under the Securities Act of 1933, as
amended. These shares have been acquired for
investment and not with a view to distribution or
resale and may not be sold or transferred in the
absence of an effective registration statement for
such shares under the Securities Act of 1933 or an
opinion of counsel for the Company that
registration is not required under such Act."
In the event that the Company shall at any time prior to the
expiration of this Option and prior to the exercise thereof: (i) declare or pay
to the holders of the Common Stock a dividend payable in any kind of shares of
stock of the Company; or (ii) change or divide or otherwise reclassify its
Common Stock into the same or a different number of shares with or without par
value, or into shares of any class or classes; or (iii) consolidate or merge
with, or transfer its property as an entirety or substantially all of its assets
to any other corporation; or (iv) make any distribution of its assets to holders
of its Common Stock as a liquidation, or partial liquidation dividend or by way
of return of capital; then, upon the subsequent exercise of this Option, the
purchase price of the Shares issuable upon the exercise hereof shall be
appropriately adjusted by the Board of Directors of the Company so that you
shall receive for the exercise price, in addition to or in substitution for the
Shares to which you would be entitled upon such exercise, such additional shares
of stock of the Company, or such reclassified shares of stock of the Company, or
such securities or property of the Company resulting from such consolidation or
merger or transfer, of such assets of the Company, which you would have been
entitled to receive had you exercised this Option prior to the happening of any
of the foregoing events.
This Option does not confer upon you any right whatsoever as a
stockholder of the Company. Upon the exercise of this Option, the subscription
form attached hereto must be duly executed and the accompanying instructions for
registration of the stock filled in.
This Option shall be binding upon any successors or assigns of the
Company.
-2-
<PAGE>
If the foregoing correctly sets forth our understanding, please
indicate your acceptance by signing this letter in the space provided below.
Very truly yours,
ALPINE LACE BRANDS, INC.
By:/s/ Carl T. Wolf
------------------------------------
Carl T. Wolf, Chairman
of the Board, President
and Chief Executive Officer
AGREED AND ACCEPTED:
/s/ Ray Manzella
- --------------------------
Ray Manzella
-3-
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THE SECURITIES
REPRESENTED BY THIS CERTIFICATE (AND ANY SECURITIES ISSUABLE UPON EXERCISE
THEREOF) MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER SAID ACT, WHICH OPINION SHALL BE ACCEPTABLE
IN FORM AND CONTENT TO THE COMPANY.
NDW-1 Warrant to Purchase
5,500 Shares
ALPINE LACE BRANDS, INC.
RESTRICTED SPECIAL STOCK WARRANT
Dated: November 4, 1992
THIS CERTIFIES THAT Joseph R. Rosetti (sometimes referred to herein as
the "Holder") is entitled, on the terms and subject to the conditions set forth
in this warrant (the "Special Warrant"), to purchase from ALPINE LACE BRANDS,
INC., a Delaware corporation (the "Company"), at the price and during the period
as hereinafter specified, up to Five thousand five hundred (5,500) shares
("Shares") of Common Stock, par value $.01 per share, of the Company (the
"Common Stock"). This Special Warrant was issued for cash consideration of
$10.00 (receipt of which is hereby acknowledged).
1. Exercise Price and Period. (a) Subject to subparagraph (b) of this
Section 1, the rights represented by this Special Warrant may be exercised, in
whole or in part, at an exercise price of $4.50 per Share, at any time during
the period commencing November 4, 1993 and expiring November 4, 2002, by (i)
surrender of this Special Warrant (with the purchase form at the end hereof
properly executed) at the principal executive office of the Company (or such
other office or agency of the Company as it may designate by notice in writing
to the Holder at the address of the Holder appearing on the books of the
Company); and (ii) payment to the Company of the exercise price for the number
of Shares specified in the above-mentioned purchase form together with
applicable stock transfer taxes, if any. The Special Warrant shall be deemed to
have been exercised immediately prior to the close of business on the date such
Special Warrant is surrendered and payment is made in accordance with the
foregoing provisions of this Section 1, and the person or persons in whose
<PAGE>
name or names the certificates for shares of Common Stock shall be issuable upon
such exercise shall, subject to Section 7 and the legend on the front page of
this Special Warrant, become the holder or holders of record of such Common
Stock at that time and date. The certificates for the shares of Common Stock so
purchased shall be delivered to the Holder within a reasonable time after the
rights represented by the Special Warrant shall have been so exercised.
(b) Notwithstanding any of the provisions of this Special Warrant
to the contrary, it may not be exercised except when and to the extent expressly
provided in this subparagraph (b). On and after November 4, 1993, if the initial
Holder has been a Director of the Company at all times from the date of this
Special Warrant to such November 4, the Special Warrant may be exercised as to
33 1/3% of the Shares (rounded up to the nearest whole Share); on each
succeeding November 4, if the initial Holder has been a Director of the Company
at all times from the date of this Special Warrant to such November 4, such
percentage shall increase cumulatively by an additional 33 1/3% of the Shares
(rounded up to the nearest whole Share), until the Special Warrant is
exercisable (or has been exercised) as to 100% of the Shares.
2. Transfer. The Special Warrant shall not be transferred, sold,
assigned, or hypothecated prior to November 4, 1995. Any assignment shall be
effected by the Holder by (i) executing the transfer form at the end hereof and
(ii) surrendering the Special Warrant for cancellation at the office or agency
of the Company referred to in Section 1 hereof, whereupon, subject to Section 7
and the legend on the front page of this Special Warrant, the Company shall
issue, in the name or names specified by the Holder, a new Special Warrant or
Special Warrants representing in the aggregate rights to purchase the same
number of Shares as are purchasable under the Special Warrant surrendered. The
new Special Warrant or Special Warrants shall be exercisable immediately upon
any such assignment. The term "Holder" shall be deemed to include any transferee
holder of the Special Warrant or Special Warrants.
3. Covenants of the Company. The Company covenants and agrees that all
Shares may be issued upon exercise hereof will be, upon issuance, duly and
validly issued, fully paid and nonassessable and no personal liability will
attach to the holder thereof. The Company further covenants and agrees that,
during the period within which the Special Warrant may be exercised, the Company
will at all times have authorized and reserved a sufficient number of shares of
Common Stock for issuance upon exercise of the Special Warrant.
-2-
<PAGE>
4. Voting Rights. The Special Warrant shall not entitle the Holder to
any voting rights or other rights as a stockholder of the Company.
5. No Employment Rights. Nothing contained in this Special Warrant
shall be construed or deemed by any person under any circumstances to bind the
Company to continue the employment of the Holder as a Director or in any other
capacity for any period.
6. Adjustments. In the event that the Common Stock of the Company is
at any time increased or decreased or changed into or exchanged for a different
number or kind of share or other security of the Company or of another
corporation through reorganization, merger, consolidation, liquidation,
recapitalization, stock split, combination of shares or stock dividends payable
with respect to such Common Stock, appropriate adjustments in the number and
kind of such securities then subject to this Special Warrant shall be made
effective as of the date of such occurrence so that the position of the Holder
upon exercise will be the same as it would have been had such Holder owned
immediately prior to the occurrence of such events the Shares subject to the
Special Warrant. (For example, if the Company declares a 2 for 1 stock dividend
or stock split, each Share subject to the Special Warrant will be adjusted to
become two shares of the Company's Common Stock.) Such adjustments shall be made
successively whenever any event listed above shall occur.
7. Representations, Warranties and Agreements of the Holder. The
Holder, by accepting this Special Warrant, hereby confirms that this Special
Warrant and the underlying Shares, when issued to the Holder pursuant to the
terms of this Special Warrant, has been or will be issued subject to the
provisions, conditions and restrictions of this Special Warrant, and the Holder
hereby further represents, warrants and agrees as follows:
(a) that he has acquired this Special Warrant, and will acquire any
Shares, for his own account, for investment and not with a view to the
distribution thereof within the meaning of the Securities Act of 1933, as
amended (the "Securities Act");
(b) that he understands that this Special Warrant and the Shares have
not been registered under the Securities Act, by reason of their issuance by the
Company in a private placement exempt from the registration requirements of the
Securities Act; and that this Special Warrant and the Shares must be held by the
Holder indefinitely unless a subsequent disposition thereof is registered under
the Securities Act or is exempt from such registration;
-3-
<PAGE>
(c) that he further understands that the exemption from registration
afforded by Rule 144 (the provisions of which are known to the Holder)
promulgated under the Securities Act depends on the satisfaction of various
conditions and that, if applicable, Rule 144 affords the basis for sales under
certain circumstances in specified amounts; and
(d) that he will not transfer this Special Warrant or any of the
Shares acquired by him except pursuant to an effective registration statement
filed pursuant to the Securities Act or an exemption from registration
thereunder.
In order to assure compliance with the restrictions upon transfer
contained in this Special Warrant, the certificates representing the Shares when
issued, and each certificate issued in exchange for or upon transfer of this
Special Warrant or any of the Shares, shall, unless and until this Special
Warrant or the Shares, as applicable, shall have been registered under the
Securities Act or their transfer shall be exempt from registration thereunder,
be stamped or otherwise imprinted with a legend in substantially the following
form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. THE SECURITIES REPRESENTED BY THIS CERTIFICATE (AND ANY
SECURITIES ISSUABLE UPON EXERCISE THEREOF) MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION
IS NOT REQUIRED UNDER SAID ACT, WHICH OPINION SHALL BE ACCEPTABLE IN
FORM AND CONTENT TO THE COMPANY."
In addition, the Holder hereby agrees that the Company may issue appropriate
stop transfer orders to the Company's transfer agents with respect to this
Special Warrant and the Shares.
8. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without giving effect to
any principles of conflicts of law.
-4-
<PAGE>
IN WITNESS WHEREOF, Alpine Lace Brands, Inc. has executed this Special
Warrant as of the date first above written.
ALPINE LACE BRANDS, INC.
By:/s/ Carl T. Wolf
------------------------------------
Carl T. Wolf
President
(Corporate Seal)
Attest:
/s/ Kenneth E. Meyers
- ------------------------------
Secretary
Terms acknowledged:
Joseph R. Rosetti
- ------------------------------
Holder's Name
/s/ Joseph R. Rosetti
- ------------------------------
Holder's Signature
-5-
<PAGE>
PURCHASE FORM
(To be completed only upon exercise of the Special Warrant)
The undersigned, the holder of the foregoing Special Warrant, hereby
irrevocably elects to exercise the purchase rights represented by such Special
Warrant for, and to purchase thereunder, ______________ shares of Common Stock,
par value $.01 per share, of ALPINE LACE BRANDS, INC., and herewith makes
payment of $__________ therefor, and requests that the certificates for shares
of Common Stock be issued in the name(s) of, and delivered to,
_______________________________________ whose address(es) is (are) .
Dated: _______________, ___.
---------------------------------------
---------------------------------------
Address
<PAGE>
TRANSFER FORM
(To be completed only upon transfer of the Special Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto ____________________________________ , whose address is
____________________________ , the right to purchase Shares represented by the
foregoing Special Warrant to the extent of ______________ Shares, and appoints
_______________ attorney to transfer such rights on the books of the Company,
with full power of substitution in the premises.
Dated: _______________, ___.
---------------------------------------
---------------------------------------
Address
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THE SECURITIES
REPRESENTED BY THIS CERTIFICATE (AND ANY SECURITIES ISSUABLE UPON EXERCISE
THEREOF) MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER SAID ACT, WHICH OPINION SHALL BE ACCEPTABLE
IN FORM AND CONTENT TO THE COMPANY.
NDW-3 Warrant to Purchase
2,500 Shares
ALPINE LACE BRANDS, INC.
Restricted Special Stock Warrant
Dated: November 4, 1992
THIS CERTIFIES THAT Richard S. Hickok (sometimes referred to herein as
the "Holder") is entitled, on the terms and subject to the conditions set forth
in this warrant (the "Special Warrant"), to purchase from ALPINE LACE BRANDS,
INC., a Delaware corporation (the "Company"), at the price and during the period
as hereinafter specified, up to Two thousand five hundred (2,500) shares
("Shares") of Common Stock, par value $.01 per share, of the Company (the
"Common Stock"). This Special Warrant was issued for cash consideration of
$10.00 (receipt of which is hereby acknowledged).
1. Exercise Price and Period. (a) Subject to subparagraph (b) of this
Section 1, the rights represented by this Special Warrant may be exercised, in
whole or in part, at an exercise price of $4.50 per Share, at any time during
the period commencing November 4, 1993 and expiring November 4, 2002, by (i)
surrender of this Special Warrant (with the purchase form at the end hereof
properly executed) at the principal executive office of the Company (or such
other office or agency of the Company as it may designate by notice in writing
to the Holder at the address of the Holder appearing on the books of the
Company); and (ii) payment to the Company of the exercise price for the number
of Shares specified in the above-mentioned purchase form together with
applicable stock transfer taxes, if any. The Special Warrant shall be deemed to
have been exercised immediately prior to the close of business on the date such
Special Warrant is surrendered and payment is made in accordance with the
foregoing provisions of this Section 1, and the person or persons in whose
<PAGE>
name or names the certificates for shares of Common Stock shall be issuable upon
such exercise shall, subject to Section 7 and the legend on the front page of
this Special Warrant, become the holder or holders of record of such Common
Stock at that time and date. The certificates for the shares of Common Stock so
purchased shall be delivered to the Holder within a reasonable time after the
rights represented by the Special Warrant shall have been so exercised.
(b) Notwithstanding any of the provisions of this Special Warrant
to the contrary, it may not be exercised except when and to the extent expressly
provided in this subparagraph (b). On and after November 4, 1993, if the initial
Holder has been a Director of the Company at all times from the date of this
Special Warrant to such November 4, the Special Warrant may be exercised as to
33 1/3% of the Shares (rounded up to the nearest whole Share); on each
succeeding November 4, if the initial Holder has been a Director of the Company
at all times from the date of this Special Warrant to such November 4, such
percentage shall increase cumulatively by an additional 33 1/3% of the Shares
(rounded up to the nearest whole Share), until the Special Warrant is
exercisable (or has been exercised) as to 100% of the Shares.
2. Transfer. The Special Warrant shall not be transferred, sold,
assigned, or hypothecated prior to November 4, 1995. Any assignment shall be
effected by the Holder by (i) executing the transfer form at the end hereof and
(ii) surrendering the Special Warrant for cancellation at the office or agency
of the Company referred to in Section 1 hereof, whereupon, subject to Section 7
and the legend on the front page of this Special Warrant, the Company shall
issue, in the name or names specified by the Holder, a new Special Warrant or
Special Warrants representing in the aggregate rights to purchase the same
number of Shares as are purchasable under the Special Warrant surrendered. The
new Special Warrant or Special Warrants shall be exercisable immediately upon
any such assignment. The term "Holder" shall be deemed to include any transferee
holder of the Special Warrant or Special Warrants.
3. Covenants of the Company. The Company covenants and agrees that all
Shares may be issued upon exercise hereof will be, upon issuance, duly and
validly issued, fully paid and nonassessable and no personal liability will
attach to the holder thereof. The Company further covenants and agrees that,
during the period within which the Special Warrant may be exercised, the Company
will at all times have authorized and reserved a sufficient number of shares of
Common Stock for issuance upon exercise of the Special Warrant.
-2-
<PAGE>
4. Voting Rights. The Special Warrant shall not entitle the Holder to
any voting rights or other rights as a stockholder of the Company.
5. No Employment Rights. Nothing contained in this Special Warrant
shall be construed or deemed by any person under any circumstances to bind the
Company to continue the employment of the Holder as a Director or in any other
capacity for any period.
6. Adjustments. In the event that the Common Stock of the Company is
at any time increased or decreased or changed into or exchanged for a different
number or kind of share or other security of the Company or of another
corporation through reorganization, merger, consolidation, liquidation,
recapitalization, stock split, combination of shares or stock dividends payable
with respect to such Common Stock, appropriate adjustments in the number and
kind of such securities then subject to this Special Warrant shall be made
effective as of the date of such occurrence so that the position of the Holder
upon exercise will be the same as it would have been had such Holder owned
immediately prior to the occurrence of such events the Shares subject to the
Special Warrant. (For example, if the Company declares a 2 for 1 stock dividend
or stock split, each Share subject to the Special Warrant will be adjusted to
become two shares of the Company's Common Stock.) Such adjustments shall be made
successively whenever any event listed above shall occur.
7. Representations, Warranties and Agreements of the Holder. The
Holder, by accepting this Special Warrant, hereby confirms that this Special
Warrant and the underlying Shares, when issued to the Holder pursuant to the
terms of this Special Warrant, has been or will be issued subject to the
provisions, conditions and restrictions of this Special Warrant, and the Holder
hereby further represents, warrants and agrees as follows:
(a) that he has acquired this Special Warrant, and will acquire any
Shares, for his own account, for investment and not with a view to the
distribution thereof within the meaning of the Securities Act of 1933, as
amended (the "Securities Act");
(b) that he understands that this Special Warrant and the Shares have
not been registered under the Securities Act, by reason of their issuance by the
Company in a private placement exempt from the registration requirements of the
Securities Act; and that this Special Warrant and the Shares must be held by the
Holder indefinitely unless a subsequent disposition thereof is registered under
the Securities Act or is exempt from such registration;
-3-
<PAGE>
(c) that he further understands that the exemption from registration
afforded by Rule 144 (the provisions of which are known to the Holder)
promulgated under the Securities Act depends on the satisfaction of various
conditions and that, if applicable, Rule 144 affords the basis for sales under
certain circumstances in specified amounts; and
(d) that he will not transfer this Special Warrant or any of the
Shares acquired by him except pursuant to an effective registration statement
filed pursuant to the Securities Act or an exemption from registration
thereunder.
In order to assure compliance with the restrictions upon transfer
contained in this Special Warrant, the certificates representing the Shares when
issued, and each certificate issued in exchange for or upon transfer of this
Special Warrant or any of the Shares, shall, unless and until this Special
Warrant or the Shares, as applicable, shall have been registered under the
Securities Act or their transfer shall be exempt from registration thereunder,
be stamped or otherwise imprinted with a legend in substantially the following
form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. THE SECURITIES REPRESENTED BY THIS CERTIFICATE (AND ANY
SECURITIES ISSUABLE UPON EXERCISE THEREOF) MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION
IS NOT REQUIRED UNDER SAID ACT, WHICH OPINION SHALL BE ACCEPTABLE IN
FORM AND CONTENT TO THE COMPANY."
In addition, the Holder hereby agrees that the Company may issue appropriate
stop transfer orders to the Company's transfer agents with respect to this
Special Warrant and the Shares.
8. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without giving effect to
any principles of conflicts of law.
-4-
<PAGE>
IN WITNESS WHEREOF, Alpine Lace Brands, Inc. has executed this Special
Warrant as of the date first above written.
ALPINE LACE BRANDS, INC.
By:/s/ Carl T. Wolf
------------------------------------
Carl T. Wolf
President
(Corporate Seal)
Attest:
/s/ Kenneth E. Meyers
- ------------------------------
Secretary
Terms acknowledged:
Richard S. Hickok
- ------------------------------
Holder's Name
/s/ Richard S. Hickok
- ------------------------------
Holder's Signature
-5-
<PAGE>
PURCHASE FORM
(To be completed only upon exercise of the Special Warrant)
The undersigned, the holder of the foregoing Special Warrant, hereby
irrevocably elects to exercise the purchase rights represented by such Special
Warrant for, and to purchase thereunder, ______________ shares of Common Stock,
par value $.01 per share, of ALPINE LACE BRANDS, INC., and herewith makes
payment of $__________ therefor, and requests that the certificates for shares
of Common Stock be issued in the name(s) of, and delivered to,
_______________________________________ whose address(es) is (are) .
Dated: _______________, ___.
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Address
<PAGE>
TRANSFER FORM
(To be completed only upon transfer of the Special Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto ____________________________________ , whose address is
____________________________ , the right to purchase Shares represented by the
foregoing Special Warrant to the extent of ______________ Shares, and appoints
_______________ attorney to transfer such rights on the books of the Company,
with full power of substitution in the premises.
Dated: _______________, ___.
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Address
OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP
505 Park Avenue
New York, New York 10022
(212) 753-7200
August 1, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: Alpine Lace Brands, Inc. -
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-8 dated the
date hereof (the "Registration Statement"), filed with the Securities and
Exchange Commission by Alpine Lace Brands, Inc., a Delaware corporation (the
"Company"). The Registration Statement relates to an aggregate of 513,000 shares
(the "Shares") of common stock, par value $.01 per share (the "Common Stock").
The Shares will be issued and sold by the Company (i) in accordance with the
Company's 1987 Stock Option Plan, as amended (the "Plan") and (ii) pursuant to
various written purchase agreements and written compensation contracts (the
"Purchase Agreements").
We advise you that we have examined originals or copies certified or
otherwise identified to our satisfaction of the Certificate of Incorporation and
By-laws of the Company, minutes of meetings of the Board of Directors and
stockholders of the Company, the Plan, the Purchase Agreements and such other
documents, instruments and certificates of officers and representatives of the
Company and public officials, and we have made such examination of the law, as
we have deemed appropriate as the basis for the opinion hereinafter expressed.
In making such examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, and the
conformity to original documents of documents submitted to us as certified or
photostatic copies.
<PAGE>
Securities and Exchange Commission
August 1, 1995
Page -2-
Based upon the foregoing, we are of the opinion that the Shares, when
issued and paid for in accordance with the terms and conditions set forth in the
Plan and the Purchase Agreements, will be duly and validly issued, fully paid
and non-assessable.
We consent to the reference to this firm under the caption "Legal
Opinion" in the Prospectus.
Very truly yours,
/s/ OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP
OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated February 10, 1995, except for Notes H, K, M, and
N, as to which the dates are March 27, 1995, February 24, 1995, February 17,
1995 and March 22, 1995, respectively, accompanying the consolidated financial
statements and schedule included in the Annual Report of Alpine Lace Brands,
Inc. on Form 10-K for the year ended December 31, 1994, which are incorporated
by reference in this Registration Statement. We hereby consent to the
incorporation by reference in the Registration Statement of the aforementioned
report.
/s/ GRANT THORNTON LLP
- ----------------------
GRANT THORNTON LLP
Parsippany, New Jersey
July 31, 1995
