<PAGE>
As filed with the Securities and Exchange Commission on September 26, 1997
Registration No. 333-______
------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
------------
BEV-TYME, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3769323
(State or other juris- (I.R.S. Employer
diction of organization) Identification No.)
800 Sheffield Avenue, Brooklyn, NY 11207
(Address of Principal Executive Offices) (Zip Code)
CONSULTING AGREEMENT DATED SEPTEMBER 25, 1997 TO PURCHASE
450,000 SHARES OF SERIES C CONVERTIBLE PREFERRED STOCK AND
THE SHARES OF COMMON STOCK ISSUABLE UPON THE CONVERSION THEROF.
(Full title of the plan)
Alfred Sipper
President
Bev-Tyme, Inc.
800 Sheffield Avenue
Brooklyn, NY 11207
(Name and address of agent for service)
(718) 485-9222
(Telephone number, including area code,
of agent for service)
continued overleaf
<PAGE>
CALCULATION OF REGISTRATION FEE
Proposed
Title of Proposed maximum
securities Amount maximum aggregate Amount of
to be to be offering price offering registration
registered registered(1) per Share(2) price(2) fee
- ---------- ------------- -------------- --------- ------------
Series C Convertible 450,000 $.25 $112,500 $34.09
Preferred Stock, par
value $.0001 per share
TOTAL 450,000 $.25 $112,500 $34.09
- ------------
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended ("Securities Act"), this registration statement also covers an
indeterminate number of shares as may be required by reason of any stock
dividend, recapitalization, stock split, reorganization, merger,
consolidation, combination or exchange of shares or other similar change
affecting the stock.
(2) The proposed maximum offering price per share is based upon the designated
exercise prices as stated in the Consulting Agreement under which the
options were granted.
2
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
Item 2. Registrant Information and Employee Plan Annual Information
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents or portions thereof, as filed with the Securities
and Exchange Commission by Bev-Tyme, Inc., a Delaware corporation (the
"Corporation"), are incorporated herein by reference:
(1) Quarterly Report on Form 10-QSB for the period ended June 30, 1997.
(2) Quarterly Report on Form 10-QSB for the period ended March 31, 1997.
(3) Annual Report on Form 10-KSB for the year ended December 31, 1996.
(4) The description of the Series C Convertible Preferred Stock, par value
$.0001 per share ("Series C Preferred Stock"), of the Corporation
contained in the Corporation's registration statement filed under
Section 12 of the Exchange Act, including any amendment or report filed
for the purpose of updating such description.
All documents filed by the Corporation pursuant to Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended ("Exchange Act"),
subsequent to the effective date of this Registration Statement and prior to the
filing of a post-effective amendment which indicate that all securities offered
have been sold or which registers all securities then remaining unsold, shall be
deemed to be incorporated by reference in the Registration Statement and to be
part thereof from the date of filing such documents. Any statement contained in
a document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this registration
statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the request of any such person, a copy of any or all
of the foregoing documents incorporated herein by reference (other than exhibits
to such documents). Written or telephone requests should be directed to Alfred
Sipper, President and Chief Executive Officer, Bev-Tyme, Inc., 800 Sheffield
Avenue, Brooklyn, NY 11207, telephone (718) 485-9222.
3
<PAGE>
Item 4. Description of Securities
Not Applicable
Item 5. Interests of Names Experts and Counsel
Not Applicable
Item 6. Indemnification of Directors and Officers
Article Ninth of the Restated Certificate of Incorporation of the Company
as filed with the office of Secretary of State of the State of Delaware on May
11, 1995 ("Certificate of Incorporation") provides for indemnification of
personal liability of the Directors of the Corporation to the fullest extent
permitted by paragraph "7" of Subsection (b) of Section 102 of the General
Corporation Law of the State of Delaware.
Article X of the By-Laws of the Company ("By-Laws"), which is set forth
below in its entirety, provides for indemnification of officers, directors,
employees and agents substantially to the extent permitted under the Delaware
General Corporation Law.
Article X of the By-Laws provides as follows:
"ARTICLE X"
Section 10.1. Indemnification. The Corporation shall (a) 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 or officer 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 or such action or suit, (b) 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 an action by or in the
right of the Corporation), by reason of the fact that he is or was a director or
officer of the Corporation, or served at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with any such action, suit or proceeding, in each case to
the fullest extent permissible under subsections (a) through (f) of Section 145
of General Corporation Law of the State of Delaware of the indemnification
provisions of any successor statute and (c) advance reasonable and necessary
expenses in connection with such actions or suits, and not seek reimbursement of
such expenses unless there is a specific determination that the officer or
director is not entitled to such indemnification. The foregoing right of
indemnification shall in no way be exclusive of any other rights of
indemnification to which any such persons may be entitled, under any by-law,
agreement, vote of shareholders or disinterest directors or otherwise, and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
4
<PAGE>
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The following is a complete list of exhibits filed as a part of this
registration statement:
Exhibit No. Document
- ----------- --------
4.1 Restated Certificate of Incorporation of the Corporation
(Incorporated by reference to Corporation's Registration Statement
on Form SB-2 Registration No. 33-87458).
4.2 By-Laws of the Corporation (Incorporated by reference to
Corporation's Registration Statement on Form SB-2 Registration No.
33-87458).
5.1 Opinion of Bernstein & Wasserman, LLP.
10.1 Consulting Agreement dated September 25, 1997 between the
Corporation and Khosrow Foroughi.
23.1 Consent of Bernstein & Wasserman, LLP (included in Exhibit 5.1)
23.2 Consent of Moore Stephens, P.C.
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 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, the paragraphs (1)(i) and (1)(ii) do not apply if the
information is 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 Exchange Act that are incorporated
by reference in the registration statement;
5
<PAGE>
(2) 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 be deemed to be the initial bona fide
offering thereof; and;
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
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 Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered herein, 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 provisions described in item 6, 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 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.
6
<PAGE>
SIGNATURES
Pursuant to the requirement of the Securities Act of 1933, as amended, the
Registrant, certifies that it has reasonable grounds to believe that it meets
all 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 Brooklyn, New York, on the 26th day of September, 1997.
BEV-TYME, INC.
By: /s/ Alfred Sipper
--------------------
Alfred Sipper
President, Chief Executive Officer,
Chief Financial Officer and Director
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Alfred Sipper his true and lawful
attorney-in-fact and agent, for him and his name, place and stead, in any and
all capacities, to sign any and 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, and to make
any and all state securities law or blue sky filings, granting unto said
attorney-in-fact and agent, to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully for all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his 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 or Amendments thereto has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Alfred Sipper President, Chief Executive September 26, 1997
- ------------------ Officer, Chief Financial
Alfred Sipper Officer and Director
/s/ William Swedelson Director September 26, 1997
- ----------------------
William Swedelson
7
<PAGE>
BEV-TYME, INC.
EXHIBITS
TO
REGISTRATION STATEMENT ON FORM S-8
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Document
- ----------- --------
4.1 Restated Certificate of Incorporation of the Corporation
(Incorporated by reference to Corporation's Registration Statement
on Form SB-2 Registration No. 33-87458).
4.2 By-Laws of the Corporation (Incorporated by reference to
Corporation's Registration Statement on Form SB-2 Registration No.
33-87458).
5.1 Opinion of Bernstein & Wasserman, LLP.
10.1 Consulting Agreement dated September 25, 1997 between the
Corporation and Khosrow Foroughi.
23.1 Consent of Bernstein & Wasserman, LLP (included in Exhibit 5.1)
23.2 Consent of Moore Stephens, P.C.
9
<PAGE>
September 25, 1997
Bev-Tyme, Inc.
800 Sheffield Avenue
Brooklyn, New York 11207
Ladies and Gentlemen:
We have acted as counsel for Bev-Tyme, Inc., a Delaware corporation
("Company"), in connection with a Registration Statement on Form S-8
("Registration Statement") being filed contemporaneously herewith by the Company
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Securities Act"), covering an aggregate of 450,000 shares of the
Company's Series C Convertible Preferred Stock, $.0001 par value ("Preferred
Stock").
In that connection, we have examined the Certificate of Incorporation, as
amended, and the By-Laws of the Company, the Registration Statement, the
Consulting Agreement dated September 25, 1997 between the Company and Khosrow
Foroughi and corporate proceedings of the Company relating to the issuance of
the Preferred Stock, and such other instruments and documents as we have deemed
relevant under the circumstances.
In making the aforesaid examinations, we have assumed the genuineness of
all signatures and the conformity to original documents of all copies furnished
to us as original or photostatic copies. We have also assumed that the corporate
records of the Company include all corporate proceedings taken by the Company to
date.
Based upon and subject to the foregoing, we are of the opinion that the
Preferred Stock when issued in accordance with the terms of the Consulting
Agreement will be duly and validly authorized and issued and fully paid and
non-assessable.
<PAGE>
We hereby consent to the use of this opinion as herein set forth as an
exhibit to the Registration Statement.
Very truly yours,
BERNSTEIN & WASSERMAN, LLP
<PAGE>
BEV-TYME, INC.
800 SHEFFIELD AVENUE
BROOKLYN, NY 11237
September 25, 1997
Mr. Khosrow Foroughi
Re: Consulting Agreement
Dear Mr. Foroughi:
This Agreement is to confirm our understanding with respect to the
rendering by you (the "Consultant") of certain consulting services to Bev-Tyme,
Inc. ("BTI"), upon the terms and conditions set forth below.
1. Payment by BTI. As full and total consideration for the services
provided by you to BTI hereunder, and in partial consideration of your agreement
to terminate the Employment Agreement between you and BTI dated May 12, 1993 as
well as any and all obligations owed to you by BTI pursuant to the Employment
Agreement, BTI hereby issues to you the option (the"Option") to purchase 450,000
shares of BTI's Series C Preferred Stock for a period of five (5) years at any
time commencing on the date hereof at an exercise price of $.25 per share. In
addition, BTI agrees to register such shares for sale to the public as soon as
practicable. This Agreement may be terminated at any time by providing the other
party hereto with 90 days prior written notice.
2. Term of Agreement. This agreement shall be for a term of one (1) year.
3. Consultant's Obligations. The Consultant agrees to provide BTI with
consulting services in connection with marketing and sales during the term of
this Agreement. The Consultant shall provide such consulting services at such
time and in such manner as the Consultant and BTI may determine.
4. Confidential Information Consultant acknowledges that all information,
documents, customer lists, patents, trademarks, copyrights, materials,
specifications, business strategies or any other ideas which directly relate to
the business of BTI (referred to herein as "Confidential Information") whether
prepared or generated by Consultant, or BTI pursuant to this Agreement or
otherwise in the possession or knowledge of Consultant prior to the date hereof
or coming into possession or knowledge of Consultant during the term of this
Agreement shall be the exclusive, confidential property of BTI, except to the
extent expressly authorized in writing by BTI for dissemination. From the date
of this Agreement through and including the twenty-fourth month following the
termination of this Agreement or any extension thereof (the "Restricted
Period"),
<PAGE>
Consultant shall not disclose any of such Confidential Information to any third
party without the prior written consent of BTI and shall take all reasonable
steps and actions necessary to maintain the confidentiality of such Confidential
Information.
5. Status as Independent Contractor. Consultant's engagement pursuant to
this Agreement shall be as independent contractor and not as an employee,
officer or other agent of BTI. Neither party to this Agreement shall represent
or hold itself out to be the employer or employee of the other. Consultant
further acknowledges that the compensation provided herein is a gross amount of
compensation and that BTI will not withhold from such compensation any amounts
respective income taxes, social security payments or any other payroll taxes.
All such income taxes and payments shall be made or provided for by Consultant
and BTI shall have no responsibility or duties regarding such matters.
6. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without regard to
principles of conflicts of law, and the parties irrevocably agree to submit any
controversy or claim arising out of or relating to this Agreement to binding
arbitration conducted in the State of New York, City of New York, in accordance
with the rules of the American Arbitration Association in New York City. This
Agreement may be executed simultaneously in counterparts, each of which will be
deemed to be an original but all of which together will constitute one and the
same instrument. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect. This Agreement
contains the entire understanding of the parties hereto with respect to its
subject matter. This Agreement may be amended only by a written instrument duly
executed by the parties.
If this Agreement accurately reflects your understanding of our agreement,
kindly sign the enclosed copy of this letter on the space provided below and
return it to me at your earliest convenience.
Very truly yours,
BEV-TYME, INC.
By: /s/ Alfred Sipper
------------------------
Alfred Sipper, President
Agreed to and Accepted as of
the Date First Written Above:
/s/ Khosrow Foroughi
- -----------------------------
Khosrow Foroughi
<PAGE>
Exhibit 23.2
------------
CONSENT OF CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors and Stockholders of
Bev-Tyme, Inc. and Subsidiaries
We hereby consent to incorporation by reference in the Registration
Statement of Form S-8 of Bev-Tyme, Inc. and Subsidiaries of our report dated
March 26, 1997, relating to the consolidated financial statements of Bev-Tyme,
Inc. and Subsidiaries included in the Annual Report (Form 10-KSB) for the year
ended December 31, 1996.
Our report dated March 26, 1997, contains an explanatory paragraph
that states that the Company's recurring losses and use of cash for operations
raise substantial doubt about its ability to continue as a going concern. The
consolidated financial statements do not include any adjustments that might
result from the outcome of this uncertainty.
/s/ Moore Stephens, P.C.
----------------------------
MOORE STEPHENS, P.C.
Certified Public Accountants
Cranford, New Jersey
September 26, 1997
