<PAGE>
As filed with the Securities and Exchange Commission on December 2, 1996.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------
SILVERADO FOODS, INC.
(Exact name of issuer as specified in its charter)
Oklahoma 73-1369218
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
6846 South Canton, Suite 110
Tulsa, Oklahoma 74136
(918) 496-2400
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
LAWRENCE D. FIELD
Chairman and Chief Executive Officer
6846 South Canton, Suite 110
Tulsa, Oklahoma 74136
(918) 496-2400
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPY TO:
R. KEVIN REDWINE, ESQ.
Conner & Winters,
A Professional Corporation
2400 First Place Tower
15 East 5th Street
Tulsa, Oklahoma 74103-4391
(918) 586-5711
--------------------
Approximate Date of Commencement of Proposed Sale to the Public: From time
to time after this Registration Statement becomes effective.
--------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================
Proposed maximum Proposed maximum Amount of
Title of each class of Amount to be offering price aggregate registration
securities to be registered registered per share(1) offering price(1) fee
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------
Common Stock ($.01 par value).. 2,617,969 $2.84375 $7,444,849 $2,257
shares
=====================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) on the basis of the average of the high and low sales prices
reported on the American Stock Exchange on November 27, 1996.
--------------------
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933, or until the Registration
Statement shall become effective on such date as the Commission, acting
=======================================================================
pursuant to said Section 8(a), may determine.
============================================
<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
PRELIMINARY PROSPECTUS DATED December 2, 1996
2,617,969 Shares
SILVERADO FOODS, INC.
Common Stock
Up to 2,617,969 presently outstanding shares of Common Stock, par
value $0.01 per share (the "Common Stock"), of Silverado Foods, Inc. (the
"Company") may be offered for sale from time to time by certain shareholders of
the Company (the "Selling Shareholders"). See "Selling Shareholders." The
Company will not receive any of the proceeds from the sale of shares in this
offering.
Sales of shares by the Selling Shareholders may be effected from time
to time in one or more transactions on the American Stock Exchange, including
block trades, in negotiated transactions or in a combination of any such methods
of sale. The selling price of the shares may be at the market price prevailing
at the time of sale, at a price related to such prevailing market price or at a
negotiated price. The Selling Shareholders may be deemed to be "underwriters"
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act"). See "Plan of Distribution." The Company has agreed to indemnify the
Selling Shareholders against certain civil liabilities, including liabilities
under the Securities Act.
The Company's Common Stock is traded on the American Stock Exchange
under the trading symbol "SLV." On November 29, 1996, the last reported sale
price of the Common Stock on the American Stock Exchange was $3.00 per share.
See "Price Range of Common Stock."
See "Risk Factors" beginning on page 3 for a discussion of certain
factors that should be considered by prospective investors.
--------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES 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 December___, 1996.
<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 450 Fifth Street, N.W.,
Room 1024, Judiciary Plaza, Washington, D.C. 20549, and at the following
regional offices of the Commission: Chicago Regional Office, Northwest Atrium
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511; and
New York Regional Office, Seven World Trade Center, Suite 1300, New York, New
York 10048. Copies of such material can also be obtained by mail (at
prescribed rates) from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549. Such reports, proxy
statements and other information can also be inspected and copied at the
American Stock Exchange, 86 Trinity Place, New York, New York 10006-1881. In
addition, the Commission maintains a Web site that contains reports, proxy
statements and other information filed electronically by the Company with the
Commission which can be accessed over the Internet at http://www.sec.gov.
The Company has filed with the Commission a registration statement on
Form S-3 (the "Registration Statement") under the Securities Act with respect to
the shares of Common Stock offered by this Prospectus. This Prospectus, which
constitutes a part of the Registration Statement, does not contain all of the
information set forth in the Registration Statement and the exhibits thereto,
to which reference is made. Statements made in this Prospectus as to the
contents of any contract, agreement or other document referred to are not
necessarily complete, and in each instance reference is made to the copy of such
contract, agreement or other document filed as an exhibit to the Registration
Statement, and each such statement is qualified in its entirety by such
reference. Any interested party may inspect the Registration Statement, and the
exhibits thereto, without charge, at the public reference facilities of the
Commission, and may obtain copies of all or any portion of the Registration
Statement from the Commission upon payment of the prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with the
Commission pursuant to the Exchange Act (Commission File No. 1-13260), are
incorporated in this Prospectus by reference and shall be deemed to be a part
hereof:
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1995;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1996, June 30, 1996 and September 30, 1996;
(c) The Company's Current Report on Form 8-K dated August 7, 1996 and
Amendment No. 1 thereto dated October 21, 1996; and
(d) The description of the Company's Common Stock contained in the
Company's registration statement on Form 8-A, dated July 29, 1994,
including any amendment or report heretofore or hereafter filed for
the purpose of updating the description of the Common Stock contained
therein.
All other documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering made hereby shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of the filing of such documents. Any statement contained in this
Prospectus, in a supplement to this Prospectus or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed supplement to this Prospectus or
in any document that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
-2-
<PAGE>
The Company will 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 unless such exhibits are specifically incorporated by reference
in such documents. Written or telephone requests for such copies should be
directed to Dorvin D. Lively, Secretary, Silverado Foods, Inc., 6846 South
Canton, Suite 110, Tulsa, Oklahoma 74136, telephone number (918) 496-2400.
THE COMPANY
The Company manufactures and markets various lines of specialty baked goods
which are sold through multiple distribution channels. In addition, the
Company's wholly owned subsidiary, Silverado Marketing Services, Inc. ("SMS"),
is believed by the Company to be the nation's largest retail snack tray company,
servicing approximately 73,000 accounts in 24 major metropolitan areas across
the country. SMS services the in-office snack food and coffee needs of small
businesses with between 5 and 50 employees.
The Company sells specialty baked goods to retail grocery stores, wholesale
club stores, the food service industry and the vending industry, and it sells
gourmet foods to specialty retailers. The Company is integrating the
distribution capabilities of SMS, which has warehousing, packing, sales and
distribution operations in 24 major metropolitan areas across the country, with
its food sales efforts. The Company believes that controlling distribution in
some key markets into which it distributes can provide a competitive advantage
over those competitors without such distribution capabilities.
The Company was incorporated in Oklahoma on August 15, 1990. The Company's
principal office is located at 6846 South Canton, Suite 110, Tulsa, Oklahoma
74136, and its telephone number is (918) 496-2400. Unless the context requires
otherwise, all references to the "Company" include Silverado Foods, Inc. and its
consolidated subsidiaries.
RISK FACTORS
History of Increasing Operating Losses; Future Operating Results
Although many of the individual entities and product lines which have been
acquired by the Company have been in existence for many years, the Company has
only been in existence since 1990. Since the Company has a limited history of
owning and operating its acquired businesses, there can be no assurance that the
Company will be successful in executing its long-term strategy. The Company
has incurred increasing losses and generated negative cash flows from continuing
operations in each of the Company's fiscal years since inception and during the
first nine months of 1996. For the years ended December 31, 1993, 1994 and
1995, and the nine months ended September 30, 1996, the Company incurred losses
from continuing operations of $1,339,988, $2,206,268, $4,713,011 and $4,399,666,
respectively. There can be no assurance that the Company will operate
profitably in the future.
Effects of the Sale of the Shares; Limited Liquidity for Common Stock
At November 29, 1996, there were 6,954,234 shares of the Company's Common
Stock outstanding; however, only approximately 4,480,000 of such shares were not
held by affiliates. A total of 2,617,969 shares of the Company's Common Stock
may be sold on the public markets by the Selling Shareholders, representing
approximately 38% of the total outstanding shares of the Company at November 29,
1996. The substantial number of shares that may be sold on the public markets
pursuant to this Prospectus by the Selling Shareholders could adversely affect
the market price for the Company's Common Stock. In addition, the average
weekly trading volume for the Company's Common Stock as reported by the American
Stock Exchange for the third quarter of 1996 was approximately 22,385 shares.
There can be no assurance that a more active trading market in the Common Stock
will develop despite the significant increase in the number of shares of Common
Stock that may be publicly traded as a result of the sale of the Shares by the
Selling Shareholders.
-3-
<PAGE>
Capital Resources and Liquidity
During the third quarter, the Company amended its revolving credit facility
with a bank and thereby increased the total amount available under such facility
to $7 million, of which $6.2 million was drawn as of September 30, 1996, which
was the full amount of the borrowing base at that time. The borrowing base is
equal to 80% of eligible accounts receivable and 50% of eligible inventory.
Such loan is due in April 1998 with interest at prime payable monthly.
In addition, the Company also amended the terms of its $5 million
acquisition line of credit with the same bank and increased borrowings
outstanding to $5 million as of September 30, 1996. Monthly payments of
principal and interest on this line will commence on April 1, 1997, with the
final payment being due on June 1, 2000. This line of credit bears interest at
prime.
The Company is subject to various covenants associated with its revolving
line of credit and acquisition line of credit, such as limitations on payments
of dividends and on the sale of a substantial portion of assets and on future
indebtedness. Borrowings under these facilities are guaranteed as to repayment
of principal and interest by the Company's Chief Executive Officer and his
spouse.
On October 22, 1996, the Company signed a non-binding letter of intent to
complete a Regulation S offering for $3 million in convertible debentures
bearing interest at 8%. This offering is to be completed within a 90 day
period. Amounts received from the Regulation S offering will be used to reduce
certain past due accounts payable. To date, the Company has issued $300,000 of
such debentures. There can be no assurance that additional funds will be raised
pursuant to this offering. These convertible debentures may be converted, after
45 days and at the option of the holders, into Common Stock of the Company at a
conversion price for each share at the lower of (a) 70% of the closing price of
the Common Stock for the day immediately preceding the conversion date or (b)
70% of the average of the closing prices of the Common Stock for the five
business days immediately preceding the date of subscription by the holder. In
addition, during the third quarter, the Company issued, in a private placement,
$3,550,000 in principal amount of its 9% Convertible Subordinated Notes.
$150,000 of these Notes are convertible at $2.50 per share and $3,400,000 are
convertible at $3.25 per share. $3,000,000 in principal amount of such Notes
have been purchased by the Company's Chief Executive Officer, who has agreed to
exchange up to $3,000,000 in principal amount of such Notes for new notes with a
conversion price set at a level which, when averaged with the debentures issued
in the Regulation S offering, would result in an average conversion price of
$3.25 per share. Amounts received from this debt financing were used to finance
the Company's purchase of certain assets of the Bagel Place, Inc. and to reduce
certain past due accounts payable. The Company is also seeking additional funds
from the sale and leaseback of certain equipment and from borrowings from a bank
to fund capital additions at its Tulsa manufacturing facility, but there can be
no assurance that such funds will be available. The Company believes that
current cash flows from operations when combined with the existing credit
facilities and the proceeds received from the Regulation S offering will be
sufficient to meet current cash flow requirements.
Potential Increases in Outstanding Shares
The Company will be obligated to issue shares of its Common Stock upon the
conversion of the convertible debentures issued in the Regulation S offering and
upon conversion of the Company's 9% Convertible Subordinated Notes. The number
of shares of Common Stock that may be issued depends upon the yet to be
determined conversion price. The issuance of shares of Common Stock could cause
an immediate dilution of the interests of other shareholders of the Company.
The availability of such shares for resale may depress the market price of the
Common Stock as well as adversely affect the ability of the Company to, and the
terms on which it can, raise additional equity capital. In addition, in the
event the Company generates net income, there could be a substantial adverse
impact on earnings per share if such additional shares are issued.
Food Product Industry Operations
The manufacturing, marketing and sales of either existing or newly
developed food product lines involve many risks and are subject to numerous
factors outside of the Company's control. There can be no assurance that the
Company will realize profits from any of its current product lines or from new
products which may be either
-4-
<PAGE>
developed or acquired by the Company in the future. Profitability in the food
product industry is subject to adverse changes in general business and economic
conditions as well as other factors, including oversupply of certain food
products at the wholesale and retail levels, product obsolescence resulting from
changing consumer tastes, shortages in supplies of raw materials, fluctuating
raw materials, and seasonality.
Product Liability Claims
As a manufacturer and marketer of food products, the Company may be
subjected to various product liability claims. While such claims to date have
not been material to the Company and the Company maintains product liability
insurance, there can be no assurance that such insurance will be adequate to
cover any loss or exposure for product liability, or that such insurance will
continue to be available on terms acceptable to the Company. Any product
liability claim not fully covered by insurance, as well as any adverse publicity
from a product liability claim, could have a material adverse effect on the
financial condition or results of operations of the Company.
Substantial Competition
The Company operates in a highly competitive environment. It faces intense
competition from regional, national and multi-national food companies. Many of
these competitors have financial and other resources substantially in excess of
those available to the Company.
Dependence on Key Personnel
The success of the Company is largely dependent on the personal efforts and
abilities of senior management, including Lawrence D. Field, Chairman and Chief
Executive Officer of the Company, and Gerald E. Milton, President of the
Company, and certain other key members of management, sales representatives and
marketing personnel. The loss of either of their services or those of other key
personnel could have a material adverse effect on the Company. In addition, the
Company's continued growth depends on its ability to attract and retain
additional skilled managers and employees and the ability of its key employees
to negotiate acquisitions successfully, integrate operations and otherwise
manage the Company's growth.
Control by Current Shareholders
Prior to any sales of stock pursuant to this offering, five shareholders
(comprising certain officers and directors of the Company and the two other
largest shareholders) beneficially own approximately 46% of the issued and
outstanding shares of Common Stock. Although there are no agreements among such
shareholders, if they were to act in concert, they would be able to elect all of
the Company's directors, increase the Company's authorized capital, dissolve,
merge or sell the assets of the Company and generally direct the affairs of the
Company.
Potential Anti-Takeover Devices
The Company's Amended Certificate of Incorporation authorizes the issuance
of 2,000,000 shares of preferred stock having such designations, rights and
preferences as may be determined from time to time by the Board of Directors.
Accordingly, the Board of Directors is empowered, without shareholder approval,
to issue preferred stock with dividend, liquidation, conversion, voting or other
rights that could adversely affect the voting power or other rights of the
holders of Common Stock. In the event of such issuance, the preferred stock
could be utilized, under certain circumstances, as a method of discouraging,
delaying or preventing a change in control of the Company which could be at a
premium over the then existing market price of the Common Stock.
Possible Volatility of Market Price of Common Stock
The market price for the Common Stock may be significantly affected by such
factors as the Company's operating results and various factors affecting the
economy in general. Further, in recent years, the stock market has experienced
a high level of price and volume volatility and market prices for the stock of
many companies,
-5-
<PAGE>
particularly of small and emerging growth companies, have experienced wide price
fluctuations not necessarily related to the operating performance of such
companies.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of shares of
Common Stock in this offering.
PRICE RANGE OF COMMON STOCK
The Common Stock commenced trading on the American Stock Exchange on August
4, 1994, under the symbol "SLV." The following table sets forth the high and
low sale prices per share of Common Stock, as reported in the American Stock
Exchange composite transactions, for the periods indicated.
<TABLE>
<CAPTION>
Stock Prices
---------------
Fiscal 1994 High Low
----------- ------ -----
<S> <C> <C>
Third Quarter............................... $7 1/8 $5
Fourth Quarter.............................. $5 1/2 $3 3/4
Fiscal 1995
-----------
First Quarter............................... $4 3/8 $2 1/2
Second Quarter.............................. $3 7/8 $2 5/8
Third Quarter............................... $5 $3 5/8
Fourth Quarter.............................. $4 7/16 $2 3/4
Fiscal 1996
-----------
First Quarter............................... $3 1/4 $2 1/2
Second Quarter.............................. $3 15/16 $3
Third Quarter............................... $3 3/8 $2 1/2
Fourth Quarter (through November 29, 1996).. $3 1/8 $2 7/16
</TABLE>
A recent closing price of the Common Stock, as reported by the
American Stock Exchange, is set forth on the cover page of this Prospectus. As
of November 29, 1996, the Company had 6,954,234 shares of Common Stock
outstanding, excluding 26,995 shares held in the Company's treasury, which were
held by approximately 1,032 beneficial owners, represented by 120 shareholders
of record.
DIVIDEND POLICY
The Company has never paid cash dividends on its Common Stock. The
Company presently intends to retain any earnings for the operation and expansion
of the Company's business and does not anticipate paying cash dividends in the
foreseeable future. Any future determination as to the payment of dividends
will depend upon results of operations, capital requirements, the financial
condition of the Company and such other factors as the Board of Directors of the
Company may determine. In addition, the Company's revolving credit facility
restricts the Company's ability to declare or pay cash dividends under certain
circumstances.
-6-
<PAGE>
SELLING SHAREHOLDERS
The following table sets forth certain information as of the date of
this Prospectus with respect to the Selling Shareholders. If all the shares
offered pursuant to this Prospectus are sold, none of the Selling Shareholders
will beneficially own any shares of the Company's Common Stock, except that ML
Oklahoma Venture Partners, Limited Partnership will continue to own a stock
purchase warrant for the purchase of 12,121 shares of Common Stock. Any or all
of the shares offered hereby may be offered for sale by any of the Selling
Shareholders from time to time. Unless otherwise noted, each Selling
Shareholder has sole voting and investment power with respect to such shares.
<TABLE>
<CAPTION>
Beneficial Ownership
Prior to Offering Number of
------------------------------- Shares Which
May Be Sold
Pursuant to
Selling Shareholder Shares Percent of Class This Prospectus
- ------------------------------ ------------ ----------------- ---------------
<S> <C> <C> <C>
ML Oklahoma Venture Partners,
Limited Partnership (1)..... 717,802(2) 10.3% 705,681
The Texas Growth Fund--1991
Trust (3).................... 450,000(4) 6.5% 450,000
Stephen J. Sirianni (5)....... 233,334 3.4% 233,334
Richard Martin (5)............ 233,333 3.4% 233,333
Timothy Soldati (5)........... 233,333 3.4% 233,333
David J. McElroy (6).......... 191,490 2.8% 191,490
Gerald Cramer................. 118,800 1.7% 118,800
Ingleside Company............. 118,700 1.7% 118,700
J. Wayne Jones, Trustee of
the Mom's Best Cookies, Inc.
Liquidating Trust (7)........ 62,571 1.0% 62,571
Ess Cee Ltd................... 38,551 * 38,551
Stephen J. Warner (8)......... 35,651 * 35,651
Goodness Gardens, Inc......... 20,000 * 20,000
Kenneth Court LLC............. 20,000 * 20,000
Richard Fuld, Jr.............. 20,000 * 20,000
Sheldon Weinig................ 20,000 * 20,000
Thomas C. Israel.............. 19,500 * 19,500
Barry W. Gray................. 19,500 * 19,500
William A. Bowen.............. 11,250 * 11,250
W. Ed Tyler................... 11,250 * 11,250
Jay Abramson.................. 10,000 * 10,000
Fred Filoon................... 10,000 * 10,000
Richard Rogel................. 9,800 * 9,800
Oliver Sockwell............... 9,800 * 9,800
Clement Moore II.............. 9,800 * 9,800
Isaac R. Dweck................ 5,625 * 5,625
--------- ---------
2,630,090 2,617,969
</TABLE>
- --------------------
* Represents less than 1% of the Common Stock outstanding.
-7-
<PAGE>
(1) Joe D. Tippens, a consultant for the corporate general partner of the
managing general partner of ML Oklahoma Venture Partners, Limited
Partnership ("ML Oklahoma"), serves as a member of the Company's Board of
Directors.
(2) Includes 12,121 shares purchasable pursuant to presently exercisable stock
purchase warrants. MLOK Co., Limited Partnership is the managing general
partner of ML Oklahoma. Merrill Lynch Venture Capital Inc., an indirect
wholly-owned subsidiary of Merrill Lynch & Co., Inc. is the sole general
partner of MLOK Co., Limited Partnership. Merrill Lynch & Co., Inc. is a
widely-held public company. MLOK Co., Limited Partnership, Merrill Lynch
Venture Capital Inc. and Merrill Lynch & Co., Inc. may be deemed to be the
beneficial owners of these shares. Merrill Lynch & Co., Inc. disclaims
beneficial ownership of these shares.
(3) Stephen M. Soileau, an executive vice president of the Executive Director of
The Texas Growth Fund-1991 Trust ("Texas Growth Fund"), served as a member
of the Company's Board of Directors until February 1996.
(4) TGF Management Corp. is the Executive Director of Texas Growth Fund.
However, sole investment and voting power with respect to these shares is
exercised by the Board of Trustees of Texas Growth Fund which is comprised
of nine individuals who are selected in accordance with certain statutorily
defined procedures.
(5) In connection with the Company's acquisition of substantially all of the
assets of Nonni's, Inc. ("Nonni's") in December 1993, the Company entered
into a seven-year employment agreement with each of the three shareholders
of Nonni's, Stephen J. Sirianni ("Sirianni"), Richard Martin ("Martin") and
Timothy Soldati ("Soldati"). In addition, Sirianni served as a vice
president of the Company until May 1996.
(6) In connection with the Company's acquisition of substantially all of the
assets of The Marveloaf Corp. ("Marveloaf") in January 1996, David J.
McElroy ("McElroy"), who was the president and sole stockholder of
Marveloaf, entered into a two-year employment agreement with the Company.
(7) In connection with the Company's acquisition of substantially all of the
assets of Mom's Best Cookies, Inc. ("Mom's") in July 1994, J. Wayne Jones
("Jones"), who was the president and majority stockholder of Mom's, entered
into a two-year employment agreement with the Company.
(8) Mr. Warner served as a member of the Company's Board of Directors until
August 1994.
In connection with the acquisition by the Company of substantially all of
the assets of Nonni's, the Company agreed to pay certain royalties with respect
to the product lines acquired from Nonni's. Pursuant to a Royalty Termination
Agreement dated November 8, 1996, effective July 22, 1996, the Company agreed to
issue shares of Common Stock to Sirianni, Martin and Soldati in exchange for
termination of such royalty obligations. Under a Registration Rights Agreement
dated November 8, 1996, between the Company and Sirianni, Martin and Soldati,
the Company agreed to prepare and file, within 60 days following the date of
such Royalty Termination Agreement, a registration statement on Form S-3 with
respect to certain shares of Common Stock acquired by Sirianni, Martin and
Soldati from the Company pursuant to the Royalty Termination Agreement and to
use its best efforts to cause such registration statement to become effective,
and to keep such registration statement effective until the earlier of (i) the
date on which restrictions on sales of the shares covered by such registration
statement would otherwise terminate pursuant to Rule 144(k) under the Securities
Act, (ii) the sale of all of the shares covered by such registration statement,
or (iii) in the opinion of counsel to the Company, the shares covered by such
registration statement may be sold without registration or restriction.
In connection with the acquisition by the Company of substantially all of
the assets of Marveloaf, the Company and McElroy entered into a Registration
Rights Agreement dated January 5, 1996, pursuant to which the Company agreed,
upon the request of McElroy, to prepare and file a registration statement on
Form S-3 or other available form with respect to the shares of Common Stock
acquired by McElroy from the Company pursuant to such purchase and sale of
assets, to use its best efforts to cause such registration statement to become
effective, and to keep such registration statement effective for a period of 24
months from the date it becomes effective or, if earlier, until (i) all the
shares are sold in accordance with the registration, or (ii) in the opinion of
counsel to the Company, satisfactory to McElroy, registration of McElroy's
shares of Common Stock is no longer required under
-8-
<PAGE>
the Securities Act and McElroy may sell all remaining shares in the open market
without limitation as to volume and without being required to file any forms or
reports with the Commission under the Securities Act or the regulations
thereunder.
In connection with the Company's acquisition of substantially all of the
assets of Mom's, the Company and Mom's entered into a Registration Rights
Agreement dated July 29, 1994, pursuant to which the Company agreed, upon the
request of Mom's, to prepare and file a registration statement with respect to
the shares of Common Stock acquired by Mom's from the Company pursuant to such
purchase and sale of assets, to use its best efforts to cause such registration
statement to become effective, and to keep such registration statement effective
for a period of not less than three months. Subsequent to the sale of assets by
Mom's to the Company, all rights of Mom's were transferred to Jones, as Trustee
of the Mom's Best Cookies, Inc. Liquidating Trust (the "Mom's Trustee").
Additionally, the Company and the Selling Shareholders other than Sirianni,
Martin, Soldati, McElroy and the Mom's Trustee are parties to an Amended and
Restated Registration Rights Agreement dated August 18, 1993, as amended,
pursuant to which the Company agreed, under certain circumstances upon the
request of such Selling Shareholders, to file a registration with respect to the
shares of Common Stock owned by such Selling Shareholders. In addition, such
Amended and Restated Registration Rights Agreement provided that if the Company
proposes to register any Common Stock under the Securities Act pursuant to a
form which may be utilized for the registration of Common Stock held by parties
to such agreement, such parties have the right to request the Company to include
in such registration the Common Stock held by such parties. The Selling
Shareholders other than Sirianni, Martin, Soldati, McElroy and the Mom's Trustee
have exercised such "piggyback" registration rights in connection with this
registration.
This Prospectus constitutes a part of the Registration Statement filed by the
Company in accordance with the registration rights agreements described above.
The Company is responsible for and will bear the costs and expenses of preparing
and maintaining such Registration Statement.
PLAN OF DISTRIBUTION
Shares of Common Stock may be sold pursuant to this Prospectus from time to
time by the Selling Shareholders, or by pledgees, donees, transferees or other
successors in interest. Such sales may be made in the over-the-counter market
or on one or more exchanges, at prices and at terms then prevailing or at prices
related to the then current market price, or in negotiated transactions. The
shares may be sold by (i) a block trade in which the broker or dealer so engaged
will attempt to sell the shares as agent but may position and resell a portion
of the block as principal to facilitate the transaction; (ii) purchases by a
broker or dealer as principal and resale by such broker or dealer for its
account; and (iii) ordinary brokerage transactions and transactions in which the
broker solicits purchasers. In effecting sales, brokers or dealers engaged by
the Selling Shareholders may arrange for other brokers or dealers to
participate. Brokers or dealers will receive commissions or discounts from the
Selling Shareholders in amounts to be negotiated immediately prior to the sale.
Such brokers or dealers may be deemed to be "underwriters" within the meaning of
the Securities Act in connection with such sales. In addition, any shares which
qualify for sale under Rule 144 or Rule 144A under the Securities Act may be
sold under Rule 144 or Rule 144A rather than pursuant to this Prospectus.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed upon
for the Company by Conner & Winters, A Professional Corporation, Tulsa,
Oklahoma.
-9-
<PAGE>
EXPERTS
The consolidated financial statements of the Company incorporated in this
Prospectus by reference to the Company's Annual Report on Form 10-K for the year
ended December 31, 1995, have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their report with respect thereto, and have
been so incorporated in reliance upon the authority of said firm as experts in
giving said reports.
Future financial statements of the Company and the reports thereon of Arthur
Andersen LLP also will be incorporated by reference in this prospectus in
reliance upon the authority of that firm as experts in giving those reports to
the extent said firm has audited those financial statements and consented to the
use of their reports thereon.
-10-
<PAGE>
- --------------------------------------------------------------------------------
No person has been authorized to give any information or make any
representations in connection with this offering other than those contained in
this Prospectus and, if given or made, such other information and
representations must not be relied upon as having been authorized. This
Prospectus does not constitute an offer to sell or a solicitation of an offer to
buy any securities other than the registered securities to which it relates or
any offer to sell or the solicitation of an offer to buy such securities in any
circumstances in which such offer or solicitation is unlawful. Neither the
delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of the Company since the date hereof or that the information contained
herein is correct as of any time subsequent to its date.
_______________
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Available Information................................................. 2
Incorporation of Certain Documents by Reference....................... 2
The Company........................................................... 3
Risk Factors.......................................................... 3
Use of Proceeds....................................................... 6
Price Range of Common Stock........................................... 6
Dividend Policy....................................................... 6
Selling Shareholders.................................................. 7
Plan of Distribution.................................................. 9
Legal Matters......................................................... 9
Experts............................................................... 10
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
2,617,969 Shares
SILVERADO FOODS, INC.
Common Stock
-------------------
P R O S P E C T U S
-------------------
December ___, 1996
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
All amounts, which are payable by the Company, except the SEC registration
fee, are estimates.
SEC registration fee........... $ 2,257
Printing and copying expenses.. 1,000
Legal fees and expenses........ 16,000
Accounting fees and expenses... 4,000
Miscellaneous.................. 1,000
-------
Total...................... $24,257
=======
Item 15. Indemnification of Directors and Officers.
Section 1031 of the Oklahoma General Corporation Act provides generally
that a corporation may indemnify any person who was or is a party to or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative in
nature, 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) and, in a proceeding not by or in the right of the
corporation, judgments, fines and amounts paid in settlement, actually and
reasonably incurred by him in connection with such suit or proceeding, if he
acted in good faith and in a manner 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 reason to believe his conduct was unlawful. Oklahoma law
further provides that a corporation may not indemnify any person against
expenses incurred in connection with an action by or in the right of the
corporation if such person shall have been adjudged to be liable in the
performance of his duty to the corporation unless and only to the extent that
the court in which such action or suit was brought shall determine that, despite
the adjudication of liability but in the view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for the
expenses which such court shall deem proper. The By-laws of the Company provide
that the Company shall indemnify an officer or director against liabilities
incurred by such person as authorized under the Oklahoma General Corporation
Act. In addition, the Company has entered into specific agreements with the
directors and officers of the Company providing for indemnification of such
persons under certain circumstances. The Company's Amended Certificate of
Incorporation also eliminates, subject to certain limitations, the liability of
the Company's directors for monetary damages for breach of their fiduciary duty
as directors.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits*:
Exhibit No.
-----------
5.1 Opinion of Conner & Winters, A Professional Corporation.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Conner & Winters, A Professional Corporation (included
in Exhibit 5.1).
II-1
<PAGE>
24.1 Power of Attorney (included on the signature page to this
Registration Statement).
____________________
* Filed herewith.
Item 17. Undertakings.
1. 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 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.
2. Insofar as indemnification of 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 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.
3. The undersigned Registrant hereby undertakes:
(a) 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 fundamental
change in the information set forth in the Registration
Statement; notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table
in this effective Registration Statement; and
(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 (a)(i) and (a)(ii) 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
II-2
<PAGE>
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(b) That, for the purpose 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.
(c) 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.
II-3
<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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tulsa, State of Oklahoma, on the 2nd day of
December, 1996.
SILVERADO FOODS, INC.
By: /s/ Lawrence D. Field
-------------------------
Lawrence D. Field
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Lawrence D. Field, Gerald E. Milton and
Dorvin D. Lively, and each of them, his true and lawful attorneys-in-fact and
agents with full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and any subsequent
registration statement filed by the Registrant pursuant to Rule 462(b) of the
Securities Act of 1933, which relates to this Registration Statement, and to
file the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, 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 his or their 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 below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Name Title Date
- ---- ----- ----
<S> <C> <C>
/s/ Lawrence D. Field Director, Chairman of the Board December 2, 1996
- --------------------------- and Chief Executive Officer
Lawrence D. Field (Principal Executive Officer)
/s/ Gerald E. Milton Director and President December 2, 1996
- ---------------------------
Gerald E. Milton
Director
- ---------------------------
James Bankard
Director
- ---------------------------
Milton D. McKenzie
/s/ Sam L. Susser Director December 2, 1996
- ---------------------------
Sam L. Susser
/s/ Joe D. Tippens Director December 2, 1996
- ---------------------------
Joe D. Tippens
/s/ James K. Tolbert Director December 2, 1996
- ---------------------------
James K. Tolbert
/s/ Dorvin D. Lively Vice President, Chief Financial December 2, 1996
- --------------------------- Officer and Secretary
Dorvin D. Lively (Principal Financial Officer and
Principal Accounting Officer)
</TABLE>
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description Page
--------------- ------------------------------------- ------------
<S> <C> <C>
5.1* Opinion of Conner & Winters, A
Professional Corporation.
23.1* Consent of Arthur Andersen LLP.
23.2* Consent of Conner & Winters, A
Professional Corporation (included
in Exhibit 5.1).
24.1* Power of Attorney (included on the
signature page to this Registration
Statement).
</TABLE>
______________________
* Filed herewith.
<PAGE>
[LETTERHEAD OF CONNER & WINTERS APPEARS HERE]
December 2, 1996
Silverado Foods, Inc.
6846 South Canton, Suite 110
Tulsa, Oklahoma 74136
Re: Silverado Foods, Inc.
Registration Statement on Form S-3 (the "Registration Statement")
Gentlemen:
We have acted as counsel for Silverado Foods, Inc., an Oklahoma corporation
(the "Company"), in connection with the proposed offer and sale by certain
shareholders of the Company (the "Selling Shareholders") of up to 2,617,969
shares (the "Shares") of the Company's Common Stock, par value $0.01 per share.
As described in the Registration Statement, sales of the Shares by the Selling
Shareholders may be effected from time to time in one or more transactions,
including block trades, in negotiated transactions or in a combination of such
methods of sale.
In reaching the conclusions expressed in this opinion, we have (a) examined
such certificates of public officials and of corporate officers and directors
and such other documents and matters as we have deemed necessary or appropriate,
(b) relied upon the accuracy of facts and information set forth in all such
documents, and (c) assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as copies, and the authenticity of
the originals from which all such copies were made.
Based on the foregoing, we are of the opinion that the Shares to be sold by
the Selling Shareholders have been duly authorized and are validly issued, fully
paid and nonassessable shares of Common Stock of the Company.
<PAGE>
CONNER & WINTERS
Silverado Foods, Inc.
December 2, 1996
Page 2
We consent to the use of this opinion as an exhibit to the Registration
Statement and to the reference to our firm in the Registration Statement and the
Prospectus constituting a part thereof under the caption "Legal Matters."
Very truly yours,
CONNER & WINTERS,
A Professional Corporation
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 15, 1996
included in Silverado Foods, Inc.'s Form 10-K for the year ended December 31,
1995 and to all references to our firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
Tulsa, Oklahoma
December 2, 1996
