<PAGE>
As filed with the Securities and Exchange Commission on March 7, 1995
Registration No. ______________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
--------------
MICHAEL FOODS, INC.
(Exact name of registrant as specified in its charter)
Delaware 41-1579532
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
MICHAEL FOODS, INC.
1994 EXECUTIVE PERFORMANCE STOCK AWARD PLAN
(Full title of Plans)
324 Park National Bank Building
5353 Wayzata Boulevard
Minneapolis, Minnesota 55416
(Address, including zip code, of Principal Executive Offices)
------------------
Copies to:
Philip T. Colton, Esq. Jeffrey M. Shapiro
Maun & Simon, PLC Executive Vice President
2900 Norwest Center 324 Park National Bank Building
90 South Seventh Street 5353 Wayzata Boulevard
Minneapolis, Minnesota 55402 Minneapolis, Minnesota 55416
(612) 338-1113 (612) 546-1500
(Name and address of agent
for service)
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Amount of
Title Of Securities Amount To Be Proposed Maximum Aggregate Offering Registration
To Be Registered Registered Offering Per Share Price Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 300,000 shares $11.875(1) $3,562,500(1) $1228.00(1)
par value under 1994
Executive
Performance Stock
Award Plan
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
<FN>
(In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement includes all other interests under the Plans
which may be deemed securities for purposes of the Securities Act of 1933.
No additional fee is payable for the registration of such interests).
(1) This registration statement covers 300,000 shares of the Registrant's
Common Stock that may be issued pursuant to the Michael Foods, Inc. 1994
Executive Performance Stock Award Plan. Pursuant to Rule 457(h), the
proposed maximum offering price was estimated solely for the purpose
of calculating the Registration Fee based on a price of 11 7/8
per share which was the last reported price quoted for Michael Foods, Inc.
Common Stock on NASDAQ/NMS on March 2, 1995.
</TABLE>
<PAGE>
INTRODUCTION
Michael Foods, Inc. (the "Registrant") hereby registers 300,000 shares of
its Common Stock, $.01 par value, which may be issued pursuant to its 1994
Executive Performance Stock Award Plan (collectively referred to herein as the
"Performance Plan"). The purpose of the Performance Plan is to enable the
Registrant to attract, retain and reward key executives of the Registrant and
its subsidiaries and affiliates and strengthen the mutuality of interest between
such key executives and the Registrant's stockholders by awarding such key
executives shares of Common Stock as earned in accordance with the Registrant's
1994 Executive Incentive Plan. The Registrant's stockholders approved the
Performance Plan at the Registrant's annual meeting of stockholders held April
28, 1994 and awards will be made under the Performance Plan commencing in 1995.
1
<PAGE>
PART I
ITEM 1. PLAN INFORMATION.
Not applicable/not included in Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not applicable/not included in Registration Statement.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein and made a part hereof by reference:
(1) Registrant's Annual Report on Form 10-K for the year ended
December 31, 1993, filed pursuant to Section 13 of the Securities Exchange Act
of 1934.
(2) Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1994, June 30, 1994, and September 30, 1994 filed pursuant to Section
13 of the Securities Exchange Act of 1934, as amended, and all other reports, if
any, filed by the Registrant pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year ended
December 31, 1993.
(3) The Registrant's definitive proxy statement dated March 25, 1994 in
connection with its Annual Meeting of Stockholders held on April 28, 1994, filed
pursuant to Section 14 of the Securities Exchange Act of 1934.
(4) The description of the Registrant's Common Stock as contained in the
Company's registration statement on Form 8-A, registering the Company's Common
Stock under Section 12 of the Securities Exchange Act of 1934, dated April 2,
1987 and in the Prospectus contained in Registration Statement No. 33-40071.
All documents filed by the Registrant with the Commission pursuant to
Sections 13, 14 and 15(d) of the Securities Exchange Act of 1934 after the date
of this registration statement and prior to the filing of a post-effective
amendment to the registration statement indicating that all securities offered
have been sold or which deregisters all securities then remaining unsold, are
incorporated herein by reference and made a part hereof from the date of filing
of such documents without future action by the Registrant.
2
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES.
This item is not applicable. The class of securities to be offered is
registered under Section 12 of the Securities Exchange Act of 1934.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to the Certificate of Incorporation of the Registrant, the
officers and directors of the Registrant and any person serving as an officer or
director of another corporation or enterprise at the request of the Registrant,
are to be indemnified to the full extent permitted by Delaware law. Article VII
of the Registrant's Certificate of Incorporation provides as follows:
"The Corporation shall 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 (including an action by or in the
right of the corporation) to the full extent permitted by the Delaware
General Corporation Law. In addition, no director of the corporation
shall be liable to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for
liability: (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders; (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing
violation of law; (iii) under Section 145 of the Delaware General
Corporation Law; or (iv) for any transaction from which the director
derived an improper personal benefit."
Section 145 of the Delaware General Corporation Law provides the
corporation with the power to indemnify officers or directors who are parties to
any threatened, pending or completed action, suit or proceeding of any kind,
other than by or in the right of the corporation, for expenses, fees, judgments,
fines or settlement, or if the suit is by or in the right of the corporation,
for actual and reasonable expenses and fees (unless the officer or director is
adjudged liable to the corporation), if the officer or director acted in good
faith in a manner reasonably believed to be in or not opposed to the best
interest of the corporation.
Indemnification is made if a majority vote of a quorum of the board of
directors consisting of directors not involved in such action, suit or
proceeding, legal counsel or the stockholders determine it is proper. To the
extent a director or officer is successful on the merits or otherwise, he or she
shall be indemnified for actual and reasonable expenses.
The Registrant maintains a policy of directors and officers liability
insurance which reimburses the Registrant for expenses which it may incur in
conjunction with the foregoing
3
<PAGE>
indemnity provisions and which may provide direct indemnification to officers
and directors where the Registrant is unable to do so.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable. None of the shares of Common Stock being registered have
been issued and hence are not restricted securities. To the extent any shares
of Common Stock were issued under the Performance Plan, their issuance was
exempt from registration under Section 4(2) of the Securities Act of 1933, as
amended.
ITEM 8. ADDITIONAL EXHIBITS.
4.1 Michael Foods, Inc. 1994 Executive Performance Stock Award Plan.
4.2 Specimen form of Registrant's Common Stock Certificate.*
5.1 Opinion of Maun & Simon, PLC, including consent.
24.1 Consent of Grant Thornton, LLP.
- ------------
* Incorporated by reference from the Registrant's Registration Statement on
Form S-1 (Registration Statement No. 33-12949). See also the Registrant's
Registration Statement on Form S-3 (Registration Statement No. 33-40071).
ITEM 9. UNDERTAKINGS.
(a) RULE 415 OFFERING.
The undersigned Registrant hereby undertakes:
(1) To file, during a 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 (the "Act");
(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 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.
4
<PAGE>
Provided, however, that subparagraphs (i) and (ii) above will not
apply if the information required to be included in a post-effective
amendment by those subparagraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under the Act, each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to section 13(a) or section 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 the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) EMPLOYEE PLANS ON FORM S-8.
Insofar as indemnification for liabilities arising under the Act 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 Act 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 controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
5
<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 City of Minneapolis, State of Minnesota, on March 6, 1995.
MICHAEL FOODS, INC.
By: /s/ Gregg A. Ostrander
----------------------------------
Gregg A. Ostrander, President and
Principal Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Jeffrey M. Shapiro and John D. Reedy his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his substitute or substitutes, 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/ James H. Michael Chairman of the Board March 6, 1995
- -------------------- --------------
James H. Michael
President; Principal
Executive Officer
/s/ Gregg A. Ostrander and Director March 6, 1995
- ----------------------- --------------
Gregg A. Ostrander
6
<PAGE>
/s/ John D. Reedy Vice President-Finance; March 6, 1995
- ------------------- Principal Accounting --------------
John D. Reedy and Financial Officer
and Treasurer
/s/ Richard A. Coonrod Director March 6, 1995
- ------------------------ ---------------
Richard A. Coonrod
/s/ Miles E. Efron Director March 6, 1995
- ------------------------ ---------------
Miles E. Efron
/s/ Orville L. Freeman Director March 6, 1995
- ----------------------- -------------
Orville L. Freeman
/s/ Arvid C. Knudtson Director March 6, 1995
- ----------------------- -------------
Arvid C. Knudtson
/s/ Joseph D. Marshburn Director March 6, 1995
- ----------------------- -------------
Joseph D. Marshburn
/s/ Jeffrey J. Michael Director March 6, 1995
- ----------------------- -------------
Jeffrey J. Michael
/s/ Richard G. Olson Director March 6, 1995
- ----------------------- -------------
Richard G. Olson
7
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
----------------
MICHAEL FOODS, INC.
1994 EXECUTIVE PERFORMANCE STOCK AWARD PLAN
-------------------------------------------------------------------------------
<PAGE>
EXHIBIT INDEX
4.1 Michael Foods, Inc. 1994 Executive Performance Stock Award Plan.
4.2 Specimen form of Registrant's Common Stock Certificate.*
5.1 Opinion of Maun & Simon, PLC, including consent.
24.1 Consent of Grant Thornton, LLP.
- ----------------------------
*Incorporated by reference from the Registrant's Registration Statement on
Form S-1 (Registration Statement No. 33-12949). See also the Registrant's
Registration Statement on Form S-3 (Registration Statement No. 33-40071).
<PAGE>
EXHIBIT 4.1
MICHAEL FOODS, INC. 1994 EXECUTIVE PERFORMANCE
STOCK AWARD PLAN
1. PURPOSE OF THE PLAN
The purpose of this Plan is to enable the Company to attract, retain and
reward key executives of the Company and its subsidiaries and affiliates and
strengthen the mutuality of interest between such key executives and the
Company's stockholders by awarding such key executives shares of Common Stock as
earned in accordance with the Michael Foods' 1994 Executive Incentive Plan.
2. DEFINITIONS
In addition to other capitalized terms defined elsewhere in this Plan, the
following terms shall have the respective meanings set forth below:
2.01 "Act" means the Securities Exchange Act of 1934, as amended from time
to time.
2.02 "Affiliate" means any entity in which the Company has a substantial
direct or indirect equity interest, as determined by the Committee in its sole
discretion.
2.03 "Board" means the Board of Directors of the Company.
2.04 "Code" means the Internal Revenue Code of 1986, as amended from time
to time.
2.05 "Commission" means the United States Securities and Exchange
Commission.
2.06 "Committee" means the Committee appointed by the Board in accordance
with Section 4, if a Committee is appointed. If no Committee has been appointed,
any reference to the Committee shall be deemed a reference to the Board.
2.07 "Common Stock" means the Common Stock, par value $.01 per share, of
the Company or such other class of equity securities or other securities as may
be applicable under Section 7.
2.08 "Company" means Michael Foods, Inc., a Delaware corporation or any
successor to substantially all of its business.
2.09 "Executive" means any officer of the Company or any Subsidiary or
Affiliate that participates in the Company's 1994 Executive Incentive Plan. The
Committee is empowered to determine whether any person qualifies as an
"Executive" for purposes of the Plan.
2.10 "Plan" means this Michael Foods, Inc. 1994 Executive Performance
Stock Award Plan.
2.11 "Rule 16b-3" means Rule 16b-3 promulgated by the Commission under the
Act or any successor regulation exempting certain transactions involving
stock-based compensation arrangements from the liability provisions of Section
16 of the Act, as adopted and amended from time to time and as interpreted by
formal or informal opinions of, and releases published or other interpretive
advice provided by, the staff of the Commission.
2.12 "Section 16 Person" means an Executive who at the time an award of
shares is made pursuant to this Plan is subject to Section 16 of the Act, as
interpreted by the rules and regulations promulgated by the Commission
thereunder, as adopted and amended from time to time, and by formal or informal
opinions of, and releases published or other interpretive advice provided by,
the staff of the Commission.
2.13 "Securities Law Requirements" means the Act and the rules and
regulations promulgated by the Commission thereunder, as adopted and amended
from time to time, including but not limited to Rule 16b-3, and as interpreted
by formal or informal opinions of, and releases published or other interpretive
<PAGE>
advice provided by, the staff of the Commission; other applicable Federal and
State securities laws and regulations promulgated thereunder, as adopted and
amended from time to time; and the requirements of any stock exchange, automated
inter-dealer quotation system or other recognized securities market on which the
Common Stock is listed or traded or in which the Common Stock is included, as
adopted and amended from time to time and as interpreted by formal or informal
opinions of, and other interpretive advice, provided by the representatives of
such stock exchange, quotation system or other securities market.
2.14 "Shares" means shares of Common Stock of the Company.
2.15 "Subsidiary" means any business association (including a corporation,
partnership or a joint venture, other than the Company) in an unbroken chain of
such associations beginning with the Company if each of the associations other
than the last association in the unbroken chain owns equity interests (including
stock or partnership or joint venture interests) possessing fifty percent (50%)
or more of the total combined voting power of all classes of equity interests in
one of the other associations in such chain.
3. SHARES OF COMMON STOCK SUBJECT TO THE PLAN
Subject to adjustment as provided in Section 7, the total number of Shares
available for issuance under the Plan shall be 300,000 Shares.
4. ADMINISTRATION OF THE PLAN
4.01 PROCEDURE. The Plan shall be administered by the Board or the Board
may, in its discretion, appoint a Committee to administer the Plan subject to
such terms and conditions of the Company's 1994 Executive Incentive Plan or, as
the Board may prescribe; provided that neither the Board nor any such Committee
shall make any decision concerning the Plan with respect to any Section 16
Person unless the Board or such Committee making such decision is constituted so
that such decision complies with the then applicable requirements of Rule 16b-3.
Once appointed, the Committee shall continue to serve until otherwise directed
by the Board. From time to time the Board may increase the size of the Committee
and may appoint additional members thereof, remove members (with or without
cause), fill vacancies however caused and remove all members of the Committee
and thereafter directly administer the Plan. As to the selection of and grants
of Shares to Executives who are not Section 16 Persons, the Committee may
delegate any or all of its responsibilities to members of the Company's
management.
4.02 POWERS OF THE COMMITTEE. To the extent not inconsistent with this
Plan, the Company's 1994 Executive Incentive Plan and the then applicable
requirements of Rule 16b-3, the Committee shall have the authority, in its sole
discretion:
(a) To determine the eligibility of Executives to be issued Shares;
(b) To determine whether and to what extent Shares are to be issued to
eligible Executives;
(c) To determine the number of Shares to be issued under the Plan;
(d) To determine the terms and conditions of any Shares, if any;
(e) To determine whether, to what extent and under what circumstances
issuances of Shares are to be made and operate on a tandem basis with respect to
other awards made outside of the Plan, or on a cumulative basis; and
(f) To adopt, alter and repeal such rules, guidelines and practices
governing the Plan as it shall from time to time deem advisable; to interpret
the terms and provisions of the Plan; and otherwise supervise the administration
of the Plan.
4.03 EFFECT OF BOARD AND COMMITTEE DECISIONS. In the absence of contrary
action by the Board, any decision, determination or action taken by the
Committee or by the Board in connection with the construction, interpretation,
administration, application, operation and implementation of the Plan shall be
final,
<PAGE>
conclusive and binding on the Company, its stockholders and Subsidiaries, all
Executives and the respective legal representatives, heirs, successors and
assigns of all of the foregoing and all other persons claiming under or through
any of them.
4.04 EXCULPATION AND INDEMNIFICATION. No member of the Board or the
Committee, and no Executive or other agent acting on behalf of the Board or the
Committee, shall be personally liable for any decision, determination or action
made or taken, or failed to be made or taken, with respect to this Plan or the
issuance of Shares hereunder, and the Company shall fully protect each such
person in respect of any such decision, determination or action and shall
indemnify each such person against any and all claims, losses, damages, expenses
and liabilities arising from or in connection with any such decision,
determination or action.
5. ELIGIBILITY
Shares may be issued under this Plan to any Executive that participates in
the Company's 1994 Executive Incentive Plan.
6. ISSUANCE OF SHARES
Within five business days following the date that the Company's financial
statements for the prior fiscal year are first publicly released, the Committee
shall determine the number of Shares of Common Stock to be granted to an
Executive under the Company's 1994 Executive Incentive Plan and, subject to any
requirements, rules and procedures established under Section 13 hereof, the
Committee shall direct that a certificate representing the number of Shares of
Common Stock be issued to the Executive with the Executive as the registered
owner. Unless action has been taken to register the Shares of Common Stock
subject to the Plan with the Commission, the certificate representing such
Shares shall be legended so as to provide notice of the restrictions on the
subsequent transfer thereof in order to comply with applicable Securities Law
Requirements.
The date of issuance of Shares hereunder shall, for all purposes, be the
date on which the Committee makes the determination granting such Shares. Notice
of such determination shall be given to each Executive to whom Shares are
granted as soon as practicable after the date of such grant.
7. ADJUSTMENTS
In the event of a reorganization, recapitalization, stock split, stock
dividend, combination of shares, merger, consolidation or any other change in
the corporate structure of the Company affecting the Common Stock, the Board
shall make appropriate adjustment in the number and kind of Shares authorized by
the Plan, as it determines appropriate in the circumstances, in its sole
discretion.
8. AGREEMENTS
As a condition to the issuance of Shares awarded under this Plan, the
Executive shall enter into an agreement in such form as may be prescribed by the
Committee from time to time. Each such agreement shall contain such provisions
as are required to conform to the terms of the Plan and may contain such
additional provisions not inconsistent with the terms of the Plan as the
Committee may from time to time authorize. Each agreement evidencing the
issuance of Shares to a Section 16 Person shall also provide for such minimum
holding period from the date of the grant of the award to the disposition of any
Shares acquired pursuant to the award as may be required by Rule 16b-3.
9. CONDITIONS UPON ISSUANCE OF SHARES
Shares shall not be issued unless the issuance and delivery of such Shares
pursuant thereto shall comply with all applicable Securities Law Requirements
and all other applicable provisions of law, including,
<PAGE>
without limitation, any applicable state "blue sky" laws, securities laws and
the rules and regulations promulgated under any of such laws, and shall be
further subject to the approval of counsel for the Company with respect to such
compliance.
As a condition to the issuance of Shares, the Company may require the
Executive to whom such Shares are to be issued to make such representations and
warranties to the Company as may be required, in the opinion of counsel for the
Company, by any of the aforementioned Securities Law Requirements and other
laws, which may include, without limitation, representations and warranties that
the Shares are being acquired only for investment and without any present
intention to sell or distribute such Shares.
The Company shall not have any liability to any Executive in respect of any
delay in the issuance of Shares hereunder.
10. RESERVATION OF SHARES
The Company, during the term of this Plan, shall at all times reserve and
keep available for issuance such number of shares of Common Stock as shall be
sufficient to satisfy the requirements of the Plan.
11. EFFECTIVENESS OF PLAN
This Plan was adopted by the Board effective as of January 1, 1994;
provided, however, that no Shares shall be issued hereunder unless and until,
the Plan is approved, by the holders of the outstanding shares of Common Stock
of the Company present and voting, in person or by proxy, at a duly held meeting
of the Company's stockholders or any adjournment thereof and by such percentage
of such quorum of such stockholders as may be required by applicable Securities
Law Requirements. If this Plan is not approved by the Company's stockholders
within one (1) year of the date of adoption of the Plan, this Plan shall
automatically terminate and any issuances of Shares hereunder shall be invalid.
Once so approved by the stockholders of the Company, the Plan shall continue in
full force and effect until: (i) terminated by resolution of the Board; or
(ii) no Shares remain available for the issuance hereunder.
12. AMENDMENT OF PLAN
The Board, may in its sole discretion, amend the Plan from time to time,
provided that any amendment which Rule 16b-3 or any other Securities Law
Requirement requires be approved by the stockholders of the Company shall be
made only with the approval of such stockholders. Amendments to the Plan shall
apply prospectively.
13. WITHHOLDING OF TAX
The Board may permit an Executive to elect to satisfy social security and
federal and state income tax withholding obligations relating to the issuance of
Shares hereunder by having the Company deliver to the Executive cash in lieu of
shares in an amount up to forty percent (40%) of the value of Shares awarded
under the Plan. The use and availability of the election to receive cash in lieu
of Shares to satisfy social security and federal and state income tax
withholding requirements is subject in general, and in particular instances, to
the then applicable requirements of Rule 16b-3, the Board's complete discretion
and such rules and procedures as the Board may adopt.
14. GENERAL PROVISIONS
14.01 NATURE OF BENEFITS. Benefits realized by an Executive under this
Plan shall not be deemed a part of such Executive's regular, recurring
compensation for any purpose and shall not be included in, nor have any effect
on, the determination of benefits under any other employee benefit plan or
similar arrangement provided by the Company or a Subsidiary or Affiliate unless
expressly so provided by such other plan or arrangement, or except where the
Committee expressly determines in its sole discretion that a grant of
<PAGE>
Shares or portion thereof should be so included in order to accurately reflect
competitive compensation practices or to recognize that a grant of Shares has
been granted in lieu of a portion of competitive annual cash compensation.
The existence of this Plan shall not create in any Executive any right to
the issuance of Shares hereunder or under the 1994 Executive Incentive Plan, and
neither the existence of this Plan nor the issuance of Shares to any Executive
hereunder shall confer upon such Executive any right with respect to
continuation of the employment of such Executive by the Company or any
Subsidiary or Affiliate or shall in any way interfere with or limit the right
which such Executive, the Company or any Subsidiary or Affiliate may otherwise
have to terminate such employment at any time with or without cause. Upon the
termination of any Executive's employment with the Company or any Subsidiary or
Affiliate, neither the Company nor any Subsidiary nor Affiliate shall have any
liability or obligation to such Executive under this Plan or any Shares issued
to such Executive hereunder.
14.02 GOVERNING LAWS. To the extent that federal laws (such as the Act or
the Code) or the Delaware General Corporation Law do not otherwise control, this
Plan and all determinations made and actions taken pursuant hereto shall be
governed by the laws of the State of Minnesota and construed accordingly.
14.03 GENDER AND NUMBER. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural and vice
versa.
14.04 CAPTIONS. The captions contained in this Plan are for convenience of
reference only and do not affect the meaning of any term or provisions hereof.
<PAGE>
EXHIBIT 5.1
[MAUN & SIMON, PLC Letterhead]
Minneapolis
March 3, 1995
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street N.W.
Washington, D.C. 20549
Re: Michael Foods, Inc. 1994 Executive Performance Stock Award Plan
Gentlemen:
We are the attorneys for Michael Foods, Inc., a Delaware corporation (the
"Company"). In such capacity, we have represented the Company in connection
with the registration on Form S-8 (the "Registration Statement") of 300,000
shares of the Company's common stock, $.01 par value (the "Shares"). Said
Shares will be issued under the 1994 Executive Performance Stock Award Plan to
key executives of the Company as earned in accordance with the Company's 1994
Executive Incentive Plan.
In rendering this opinion, we have reviewed the Certificate of
Incorporation, as amended, and the Bylaws of the Company, as amended, records
and proceedings of the stockholders and Board of Directors of the Company, the
1994 Executive Incentive Plan and such other corporate records, certificates and
other documents as we have deemed necessary as a basis of the opinion
hereinafter expressed.
Based upon the foregoing, we are of the opinion that, upon issuance of
Shares pursuant to the 1994 Executive Performance Stock Award Plan in the manner
described in the Registration Statement and the Plan, the Shares covered by the
Registration Statement will be duly and validly issued, fully paid, and
nonassessable.
<PAGE>
[MAUN & SIMON, PLC Letterhead]
Securities and Exchange Commission
Page 2
March 3, 1995
We also consent to the use of this opinion in the Registration Statement.
In giving such consent, we do not hereby admit that we come within the category
of persons whose consent is required.
Very truly yours,
MAUN & SIMON, PLC
By:/s/ Philip T. Colton
------------------------------------------
Philip T. Colton
a member
<PAGE>
EXHIBIT 24.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated February 16, 1994, accompanying the
consolidated financial statements and schedules of Michael Foods, Inc. and
Subsidiaries appearing in the Annual Report on Form 10-K for the year ended
December 31, 1993 which is incorporated by reference in this Registration
Statement on Form S-8 and Prospectus. We consent to the incorporation by
reference in the Registration Statement and Prospectus of the aforementioned
report.
/s/ GRANT THORNTON LLP
GRANT THORNTON LLP
Minneapolis, Minnesota
February 15, 1995
