AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 5, 1997
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
ATLANTIC PREMIUM BRANDS, LTD.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
36-3761400
(I.R.S. Employer Identification No.)
650 Dundee Road, Suite 370
Northbrook, Illinois 60062
(847) 480-4000
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
------------------------
Atlantic Premium Brands, Ltd. Employee Stock Purchase Plan
(Full title of the Plan)
------------------------
Tom D. Wippman
General Counsel and Secretary
Atlantic Premium Brands, Ltd.
650 Dundee Road, Suite 370
Northbrook, Illinois 60062
(847) 480-4000
(Name, address and telephone number, including area code, of agent for service)
Copy to:
Michael J. Silver., Esq.
Hogan & Hartson L.L.P.
111 South Calvert Street
Baltimore Maryland 21202
(410) 659-2700
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------- ----------------- ---------------------- ---------------------- --------------
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE PRICE FEE (1)
- --------------------------------------- ----------------- ---------------------- ---------------------- --------------
<S> <C>
Common Stock, par value $.01 per share 250,000 $3.75 $937,500 $284.09
- --------------------------------------- ----------------- ---------------------- ---------------------- --------------
</TABLE>
(1) Estimated pursuant to Rule 457(c) and (h) of the Securities Act of 1933, as
amended solely for the purpose of calculating the amount of the Registration
fee, based on the average of the high and low prices per share of Atlantic
Premium Brands, Ltd. common stock, par value $.01 per shares, on October 31,
1997, as reported on the New York Stock Exchange.
Exhibit Index Appears on page 7.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I
will be sent or given to employees as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). In accordance with
the instructions to Part I of Form S-8, such documents will not be filed with
the Securities and Exchange Commission (the "Commission") either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424 of the Securities Act. These documents and the documents incorporated
by reference pursuant to Item 3 of Part II of this registration statement, taken
together, constitute the prospectus as required by Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Atlantic Premium Brands, Ltd. (the "Company") hereby
incorporates by reference into this registration statement the following
documents filed by it with the Commission:
(a) The Registrant's Form 10-K for the fiscal year ended
December 31, 1996;
(b) All reports filed with the Commission pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), since
December 31, 1996; and
(c) The description of the Company's Common Stock
("Common Stock"), contained in the Company's
Registration Statement on Form 8-A filed with the
Commission on October 14, 1993 and registering shares
of Common Stock pursuant to Section 12(g) of the
Exchange Act.
In addition, all documents and reports filed by the Company
subsequent to the date hereof pursuant to Sections 13(a), 13(c), 14, and 15(d)
of the Exchange Act, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference in
this registration statement and to be part hereof from the date of filing of
such documents or reports. 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 subsequent 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable (the Common Stock is registered under Section
12 of the Exchange Act).
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law (the
"Delaware Law"), a corporation may indemnify its directors, officers, employees
and agents and its former directors, officers, employees and agents and those
who serve, at the corporation's request, in such capacities with another
enterprise, against expenses (including attorneys' fees), as well as judgments,
fines and settlements in nonderivative lawsuits, actually and reasonably
incurred in connection with the defense of any action, suit or proceeding in
which they or any of them were or are made parties or are threatened to be made
parties by reason of their serving or having served in such capacity. The
Delaware Law provides, however, that such person must have acted in good faith
and in a manner he or she reasonably believed to be in (or not opposed to) the
best interests of the corporation and, in the case of a criminal action, such
person must have had no reasonable cause to believe his or her conduct was
unlawful. In addition, the Delaware Law does not permit indemnification in an
action or suit by or in the right of the corporation, where such person has been
adjudged liable to the corporation, unless, and only to the extent that, a court
determines that such person fairly and reasonably is entitled to indemnity for
costs the court deems proper in light of liability adjudication. Indemnity is
mandatory to the extent a claim, issue or matter has been successfully defended.
The Company's Restated Certificate of Incorporation and Bylaws
provide for mandatory indemnification of directors and officers on generally the
same terms as permitted by the Delaware Law. Under the Restated Certificate of
Incorporation, the Company shall advance expenses incurred by an officer or
director in defending any such action if the director or officer undertakes to
repay such amount if it is determined that he or she is not entitled to
indemnification. The Company has obtained directors and officers liability
insurance.
* * *
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the 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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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 Securities Act and will be governed by the final adjudication
of such issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
2
<PAGE>
ITEM 8. EXHIBITS.
Exhibit
Number Description
------- -----------
5.1 Opinion of Hogan & Hartson L.L.P. regarding
the legality of the shares being registered.
10.1 Atlantic Premium Brands, Ltd. Employee Stock
Purchase Plan, dated November 1, 1997.
23.1 Consent of Hogan & Hartson L.L.P. (included
in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP Independent
Auditors.
24.1 Power of Attorney (included on signature
pages).
99.1 Section 145 of the Delaware General
Corporation Law.
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;
(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 the
effective registration statement;
(iii) To include any material information
with respect to the plan of distribution not
previously disclosed in the registration statement or
any material change to such information in the
registration statement.
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is on
Form S-3, or Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
3
<PAGE>
(2) That, for the purpose of determining any
liability under the Securities 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) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) The undertaking concerning indemnification is set
forth under the response to Item 6.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the undersigned 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 Village of Northbrook, State of Illinois, on
the 5th day of November, 1997.
ATLANTIC PREMIUM BRANDS, LTD.
By: /s/ Alan F. Sussna
_________________________
Alan F. Sussna
President
<PAGE>
POWER OF ATTORNEY
Know all men by these presents, that each individual whose
signature appears below constitutes and appoints Alan F. Sussna, Merrick E.
Elfman and Tom D. Wippman, and each of them, his or her true and lawful
attorney-in-fact and agent, with power of substitution and resubstitution, for
him or her and in his or her name, place and stead, in any and all capacities,
to sign a registration statement (the "Registration Statement") relating to a
registration of shares of common stock on Form S-8 and to sign any and all
amendments (including post-effective amendments) to the Registration Statement,
and to file the same, with all exhibits and other 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 or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their, his or her substitutes
or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the following persons in
the capacities indicated as of the 5th day of Nobember, 1997:
/s/ Alan F. Sussna Director, President and Chief Executive
______________________________ Officer
Alan F. Sussna
/s/ Merrick M. Elfman Director and Chairman of the Board
______________________________
Merrick M. Elfman
______________________________
Rick Inatome Director
______________________________
John A. Miller Director
______________________________
G. Cook Jordan, Jr. Director
/s/ Steven M. Taslitz
______________________________
Steven M. Taslitz Director
/s/ Eric D. Becker
______________________________
Eric D. Becker Director
6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description Page
- ------- ----------- ----
<S> <C>
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the shares being registered.
10.1 Atlantic Premium Brands, Ltd. Employee Stock Purchase Plan, dated November 1, 1997.
23.1 Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP Independent Auditors.
24.1 Power of Attorney (included on signature pages).
99.1 Section 145 of the Delaware General Corporation Law.
</TABLE>
Exhibit 5
November 5, 1997
Board of Directors
Atlantic Premium Brands, Ltd.
650 Dundee Road, Suite 370
Northbrook, Illinois 60062
Ladies & Gentlemen:
This firm has acted as counsel to Atlantic Premium Brands,
Ltd. (the "Company"), a Delaware corporation, in connection with its
registration, pursuant to a registration statement on Form S-8 filed on or about
the date hereof (the "Registration Statement"), of 250,000 shares (the "Shares")
of Common Stock, par value $.01 per share, of the Company ("Common Stock"),
issued or issuable under the Atlantic Premium Brands, Ltd. Employee Stock
Purchase Plan (the "Plan"). This letter is furnished to you pursuant to the
requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. ss. 229.601(b)(5),
in connection with such registration.
For purposes of this opinion, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. A copy of the Plan, as certified by the Secretary of
the Company on the date hereof as being complete,
accurate and in effect.
3. The Certificate of Incorporation of the Company, as
amended, as certified on October 24, 1997 by the
Secretary of State of the State of Delaware and as
certified by the Secretary of the Company on the date
hereof as being complete, accurate and in effect.
4. The Amended and Restated Bylaws of the Company as
certified by the Secretary of the Company on the date
hereof as being complete, accurate and in effect.
5. Resolutions of the Board of Directors of the Company
adopted on October 8, 1997, as certified by the
Secretary of the Company on the
<PAGE>
date hereof as being complete, accurate and in
effect, relating to, among other things, approval of
the Plans.
6. A certificate of the Secretary of the Company, dated
November 5, 1997, as to certain facts relating to
the Company.
For purposes of rendering this opinion, we have not, except as
specifically identified above, made any independent review or investigation of
factual or other matters, including the organization, existence, good standing,
assets, business or affairs of the Company. In our examination of the aforesaid
certificates, records and documents, we have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the accuracy and
completeness of all documents submitted to us, the authenticity of all original
documents and the conformity to authentic original documents of all documents
submitted to us as copies (including telecopies). We also have assumed the
accuracy, completeness and authenticity of the foregoing certifications (of
public officials, governmental agencies and departments and corporate officers)
and statements of fact, on which we are relying, and have made no independent
investigations thereof. This opinion is given in the context of the foregoing.
This opinion is based as to matters of law solely on the
General Corporation Law of the State of Delaware, as amended, and we express no
opinion as to any other laws, statutes, regulations, or ordinances, including
without limitation any federal or state tax or securities laws or regulations.
Based upon, subject to, and limited by the foregoing, we are
of the opinion that the Shares, when issued and delivered in the manner and on
the terms contemplated in the Registration Statement and the Plan (with the
Company having received the consideration therefor, the form of which is in
accordance with applicable law), will be validly issued, fully paid and
non-assessable.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion. This opinion has been
prepared solely for your use in connection with the filing of the Registration
Statement on the date of this letter, and should not be quoted in whole or in
part or otherwise be referred to, nor be filed with or furnished to any
governmental agency or other person or entity, without the prior written consent
of this firm.
We hereby consent to the filing of this opinion as Exhibit 5.1
to the Registration Statement. In giving this consent, we do not thereby admit
that we are an "expert" within the meaning of the Securities Act of 1933, as
amended.
Very truly yours,
HOGAN & HARTSON L.L.P.
-2-
Exhibit 10.1
ATLANTIC PREMIUM BRANDS, LTD.
EMPLOYEE STOCK PURCHASE PLAN
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
1. SHARES SUBJECT TO THE PLAN........................................................................1
2. ADMINISTRATION....................................................................................1
3. INTERPRETATION....................................................................................1
4. ELIGIBLE EMPLOYEES................................................................................1
5. PARTICIPATION IN THE PLAN.........................................................................2
6. PAYROLL DEDUCTIONS................................................................................2
7. PAYROLL DEDUCTION PERIODS.........................................................................2
8. RIGHTS TO PURCHASE COMMON STOCK; PURCHASE PRICE...................................................3
9. TIMING OF PURCHASE; PURCHASE LIMITATION...........................................................3
10. ISSUANCE OF STOCK CERTIFICATES...................................................................4
11. WITHHOLDING OF TAXES.............................................................................4
12. ACCOUNT STATEMENTS...............................................................................4
13. PARTICIPATION ADJUSTMENT.........................................................................4
14. CHANGES IN ELECTIONS TO PURCHASE.................................................................5
15. TERMINATION OF EMPLOYMENT........................................................................5
16. LAY-OFF, AUTHORIZED LEAVE OF ABSENCE, DISABILITY.................................................5
17. FAILURE TO MAKE PERIODIC CASH PAYMENTS...........................................................6
18. TERMINATION OF PARTICIPATION.....................................................................6
19. ASSIGNMENT.......................................................................................7
20. APPLICATION OF FUNDS.............................................................................7
21. NO RIGHT TO CONTINUED EMPLOYMENT.................................................................7
22. AMENDMENT OF PLAN................................................................................7
23. EFFECTIVE DATE; TERM AND TERMINATION OF THE PLAN.................................................7
24. EFFECT OF CHANGES IN CAPITALIZATION..............................................................8
(a) Changes in Stock...........................................................................8
(b) Reorganization in Which the Company Is the Surviving Corporation...........................8
(c) Reorganization in Which the Company Is Not the Surviving Corporation or Sale of Assets
or Stock..............................................................................9
(d) Adjustments................................................................................9
(e) No Limitations on Company..................................................................9
25. GOVERNMENTAL REGULATION..........................................................................10
26. STOCKHOLDER RIGHTS...............................................................................10
27. RULE 16b-3.......................................................................................10
28. PAYMENT OF PLAN EXPENSES.........................................................................10
</TABLE>
-i-
<PAGE>
ATLANTIC PREMIUM BRANDS, LTD.
EMPLOYEE STOCK PURCHASE PLAN
The Board of Directors of Atlantic Premium Brands, Ltd. (the "Company")
has adopted this Employee Stock Purchase Plan (the "Plan") to enable eligible
employees of the Company and its participating Affiliates (as defined below),
through payroll deductions, to purchase shares of the Company's common stock,
par value $0.01 per share (the "Common Stock"). The Plan is for the benefit of
the employees of Atlantic Premium Brands, Ltd. and any participating Affiliates.
The Plan is intended to benefit the Company by increasing the employees'
interest in the Company's growth and success and encouraging employees to remain
in the employ of the Company or its participating Affiliates. The provisions of
the Plan are set forth below:
1. SHARES SUBJECT TO THE PLAN.
Subject to adjustment as provided in Section 26 below, the aggregate
number of shares of Common Stock that may be made available for purchase by
participating employees under the Plan is 250,000. The shares issuable under the
Plan may, in the discretion of the Board of Directors of the Company (the
"Board"), be authorized but unissued shares, treasury shares or shares purchased
in the open market.
2. ADMINISTRATION.
The Plan shall be administered under the direction of the Compensation
Committee of the Board (the "Committee"). No member of the Board or the
Committee shall be liable for any action or determination made in good faith
with respect to the Plan.
3. INTERPRETATION.
It is intended that the Plan will meet the requirements for an
"employee stock purchase plan" under Section 423 of the Internal Revenue Code of
1986 (the "Code"), and it is to be so applied and interpreted. Subject to the
express provisions of the Plan, the Committee shall have authority to interpret
the Plan, to prescribe, amend and rescind rules relating to it, and to make all
other determinations necessary or advisable in administering the Plan, all of
which determinations will be final and binding upon all persons.
4. ELIGIBLE EMPLOYEES.
Any employee of the Company or any of its participating Affiliates may
participate in the Plan, except the following, who are ineligible to
participate: (a) an employee who has been employed by the Company or any of its
participating
-1-
<PAGE>
Affiliates for less than 60 days as of the beginning of a Payroll Deduction
Period (as defined in Section 7 below); (b) an employee whose customary
employment is for less than five months in any calendar year; (c) an employee
whose customary employment is 20 hours or less per week; and (d) an employee
who, after exercising his or her rights to purchase shares under the Plan, would
own shares of Common Stock (including shares that may be acquired under any
outstanding options) representing five percent or more of the total combined
voting power of all classes of stock of the Company. The term "participating
Affiliate" means any company or other trade or business that is a subsidiary of
the Company (determined in accordance with the principles of Sections 424(e) and
(f) of the Code and the regulations thereunder). The Board may at any time in
its sole discretion, if it deems it advisable to do so, terminate the
participation of the employees of a particular participating Affiliate.
5. PARTICIPATION IN THE PLAN.
An eligible employee may become a participating employee in the Plan by
completing an election to participate in the Plan on a form provided by the
Company and submitting that form to the Payroll Department of the Company. The
form will authorize payroll deductions (as provided in Section 6 below) and
authorize the purchase of shares of Common Stock for the employee's account in
accordance with the terms of the Plan. Enrollment will become effective upon the
first day of the first Payroll Deduction Period.
6. PAYROLL DEDUCTIONS.
At the time an eligible employee submits his or her election to
participate in the Plan (as provided in Section 5 above), the employee shall
elect to have deductions made from his or her pay, in any whole percentage up to
a maximum of 10 percent, on each pay day following his or her enrollment in the
Plan, and for as long as he or she shall participate in the Plan. The deductions
will be credited to the participating employee's account under the Plan. An
employee may not during any Payroll Deduction Period change his or her
percentage of payroll deduction for that Payroll Deduction Period, nor may an
employee withdraw any contributed funds, other than in accordance with Sections
14 through 20 below.
7. PAYROLL DEDUCTION PERIODS.
The initial Payroll Deduction Period shall commence on November 1, 1997
and end on October 31, 1998. Subsequent Payroll Deduction Periods shall be one
year periods commencing on following November 1 and end on the following October
31 or shall commence on such dates and for such periods as shall be determined
by the Committee.
-2-
<PAGE>
8. RIGHTS TO PURCHASE COMMON STOCK; PURCHASE PRICE.
Rights to purchase shares of Common Stock will be deemed granted to
participating employees as of the first trading day of each Payroll Deduction
Period. The purchase price of each share of Common Stock (the "Purchase Price")
shall be the lesser of 85 percent of the fair market value of the Common Stock
(i) on the first trading day of the Payroll Deduction Period or (ii) on the last
trading day of such Payroll Deduction Period; or such higher price as determined
by the Committee; provided, further, that in no event shall the Purchase Price
be less than the par value of the Common Stock. For purposes of the Plan, "fair
market value" means the value of each share of Common Stock subject to the Plan
on a given date determined as follows: if on such date the shares of Common
Stock are listed on an established national or regional stock exchange, are
admitted to quotation on The Nasdaq Stock Market, or are publicly traded on an
established securities market, the fair market value of the shares of Common
Stock shall be the closing price of the shares of Common Stock on such exchange
or in such market (the highest such closing price if there is more than one such
exchange or market) on such date or, if such date is not a trading day, on the
trading day immediately preceding such date (or if there is no such reported
closing price, the fair market value shall be the mean between the highest bid
and lowest asked prices or between the high and low sale prices on such trading
day) or, if no sale of the shares of Common Stock is reported for such trading
day, on the next preceding day on which any sale shall have been reported. If
the shares of Common Stock are not listed on such an exchange, quoted on such
System or traded on such a market, fair market value shall be determined by the
Board in good faith.
9. TIMING OF PURCHASE; PURCHASE LIMITATION.
Unless a participating employee has given prior written notice
terminating such employee's participation in the Plan, or the employee's
participation in the Plan has otherwise been terminated as provided in Sections
15 through 18 below, such employee will be deemed to have exercised
automatically his or her right to purchase Common Stock on the last trading day
of the Payroll Deduction Period (except as provided in Section 14 below) for the
number of shares of Common Stock which the accumulated funds in the employee's
account at that time will purchase at the Purchase Price, subject to the
participation adjustment provided for in Section 13 below and subject to
adjustment under Section 24 below. Notwithstanding any other provision of the
Plan, no employee may purchase in any one calendar year under the Plan and all
other "employee stock purchase plans" of the Company and its participating
Affiliates shares of Common Stock having an aggregate fair market value in
excess of $25,000, determined as of the first trading date of the Payroll
Deduction Period as to shares purchased during such period. Effective upon the
last trading day of the Payroll Deduction Period, a participating employee will
become a stockholder with respect to the shares purchased during such period,
and will thereupon have all dividend, voting and other ownership
-3-
<PAGE>
rights incident thereto. Notwithstanding the foregoing, no shares shall be sold
pursuant to the Plan unless the Plan is approved by the Company's stockholders
in accordance with Section 23 below.
10. ISSUANCE OF STOCK CERTIFICATES.
On the last trading day of the Payroll Deduction Period, a
participating employee will be credited with the number of shares of Common
Stock purchased for his or her account under the Plan during such Payroll
Deduction Period. Shares purchased under the Plan will be held in the custody of
an agent (the "Agent") appointed by the Board of Directors. The Agent may hold
the shares purchased under the Plan in stock certificates in nominee names and
may commingle shares held in its custody in a single account or stock
certificate without identification as to individual participating employees. A
participating employee may, at any time following his or her purchase of shares
under the Plan, by written notice instruct the Agent to have all or part of such
shares reissued in the participating employee's own name and have the stock
certificate delivered to the employee.
11. WITHHOLDING OF TAXES.
To the extent that a participating employee realizes ordinary income in
connection with a sale or other transfer of any shares of Common Stock purchased
under the Plan, the Company may withhold amounts needed to cover such taxes from
any payments otherwise due and owing to the participating employee or from
shares that would otherwise be issued to the participating employee hereunder.
Any participating employee who sells or otherwise transfers shares purchased
under the Plan within two years after the beginning of the Payroll Deduction
Period in which the shares were purchased must within 30 days of such transfer
notify the Payroll Department of the Company in writing of such transfer.
12. ACCOUNT STATEMENTS.
The Company will cause the Agent to deliver to each participating
employee a statement for each Payroll Deduction Period during which the employee
purchases Common Stock under the Plan, reflecting the amount of payroll
deductions during the Payroll Deduction Period, the number of shares purchased
for the employee's account, the price per share of the shares purchased for the
employee's account and the number of shares held for the employee's account at
the end of the Payroll Deduction Period.
13. PARTICIPATION ADJUSTMENT.
If in any Payroll Deduction Period the number of unsold shares that may
be made available for purchase under the Plan pursuant to Section 1 above is
insufficient to permit exercise of all rights deemed exercised by all
participating employees pursuant to Section 9 above, a participation adjustment
will be made,
-4-
<PAGE>
and the number of shares purchasable by all participating employees will be
reduced proportionately. Any funds then remaining in a participating employee's
account after such exercise will be refunded to the employee.
14. CHANGES IN ELECTIONS TO PURCHASE.
(a) A participating employee may, at any time prior to the last trading
day of the Payroll Deduction Period, by written notice to the Company, direct
the Company to cease payroll deductions (or, if the payment for shares is being
made through periodic cash payments, notify the Company that such payments will
be terminated), in accordance with the following alternatives:
(i) The employee's option to purchase shall be reduced to the
number of shares which may be purchased, as of the last day of the Payroll
Deduction Period, with the amount then credited to the employee's account; or
(ii) Withdraw the amount in such employee's account and
terminate such employee's option to purchase.
(b) Any participating employee may increase or decrease his or her
payroll deduction or periodic cash payments, to take effect on the first day of
the next Payroll Deduction Period, by delivering to the Company a new form
regarding election to participate in the Plan under Section 5 above.
15. TERMINATION OF EMPLOYMENT.
In the event a participating employee terminates employment, whether
voluntarily or involuntary, due to death, disability or retirement, or
discharged for cause, prior to the last day of the Payroll Deduction Period, the
amount in the employee's account will be distributed and the employee's option
to purchase will terminate.
16. LAY-OFF, AUTHORIZED LEAVE OF ABSENCE, DISABILITY.
Payroll deductions for shares for which a participating employee has an
option to purchase may be suspended during any period of absence of the employee
from work due to lay-off, authorized leave of absence or disability or, if the
employee so elects, periodic payments for such shares may continue to be made in
cash.
If such employee returns to active service prior to the last day of the
Payroll Deduction Period, the employee's payroll deductions will be resumed and
if said employee did not make periodic cash payments during the employee's
period of absence, the employee shall, by written notice to the Company's
Payroll Department within 10 days after the employee's return to active service,
but not later than the last day of the Payroll Deduction Period, elect:
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(a) To make up any deficiency in the employee's account resulting from
a suspension of payroll deductions by an immediate cash payment;
(b) Not to make up such deficiency, in which event the number of shares
to be purchased by the employee shall be reduced to the number of whole shares
which may be purchased with the amount, if any, then credited to the employee's
account plus the aggregate amount, if any, of all payroll deductions to be made
thereafter; or
(c) Withdraw the amount in the employee's account and terminate the
employee's option to purchase.
A participating employee on lay-off, authorized leave of absence or
disability on the last day of the Payroll Deduction Period shall deliver written
notice to his or her employer on or before the last day of the Payroll Deduction
Period, electing one of the alternatives provided in the foregoing clauses (a),
(b) and (c) of this Section 16. If any employee fails to deliver such written
notice within 10 days after the employee's return to active service or by the
last day of the Payroll Deduction Period, whichever is earlier, the employee
shall be deemed to have elected subsection 16(c) above.
If the period of a participating employee's lay-off, authorized leave
of absence or disability shall terminate on or before the last day of the
Payroll Deduction Period, and the employee shall not resume active employment
with the Company or a participating Affiliate, the employee shall receive a
distribution in accordance with the provisions of Section 15 of this Plan.
17. FAILURE TO MAKE PERIODIC CASH PAYMENTS.
Under any of the circumstances contemplated by this Plan, where the
purchase of shares is to be made through periodic cash payments in lieu of
payroll deductions, the failure to make any such payments shall reduce, to the
extent of the deficiency in such payments, the number of shares purchasable
under this Plan.
18. TERMINATION OF PARTICIPATION.
A participating employee will be refunded all moneys in his or her
account, and his or her participation in the Plan will be terminated if either
(a) the Board elects to terminate the Plan as provided in Section 23 below, or
(b) the employee ceases to be eligible to participate in the Plan under Section
4 above. As soon as practicable following termination of an employee's
participation in the Plan, the Company will deliver to the employee a check
representing the amount in the employee's account and a stock certificate
representing the number of whole shares held in the employee's account. Once
terminated, participation may not be
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reinstated for the then current Payroll Deduction Period, but, if otherwise
eligible, the employee may elect to participate in any subsequent Payroll
Deduction Period.
19. ASSIGNMENT.
No participating employee may assign his or her rights to purchase
shares of Common Stock under the Plan, whether voluntarily, by operation of law
or otherwise. Any payment of cash or issuance of shares of Common Stock under
the Plan may be made only to the participating employee (or, in the event of the
employee's death, to the employee's estate). Once a stock certificate has been
issued to the employee or for his or her account, such certificate may be
assigned the same as any other stock certificate.
20. APPLICATION OF FUNDS.
All funds received or held by the Company under the Plan may be used
for any corporate purpose until applied to the purchase of Common Stock and/or
refunded to participating employees. Participating employees' accounts will not
be segregated.
21. NO RIGHT TO CONTINUED EMPLOYMENT.
Neither the Plan nor any right to purchase Common Stock under the Plan
confers upon any employee any right to continued employment with the Company or
any of its participating Affiliates, nor will an employee's participation in the
Plan restrict or interfere in any way with the right of the Company or any of
its participating Affiliates to terminate the employee's employment at any time.
22. AMENDMENT OF PLAN.
The Board may, at any time, amend the Plan in any respect (including an
increase in the percentage specified in Section 8 above used in calculating the
Purchase Price); provided, however, that without approval of the stockholders of
the Company no amendment shall be made (a) increasing the number of shares
specified in Section 1 above that may be made available for purchase under the
Plan (except as provided in Section 24 below), (b) changing the eligibility
requirements for participating in the Plan, or (c) impairing the vested rights
of participating employees.
23. EFFECTIVE DATE; TERM AND TERMINATION OF THE PLAN.
The Plan shall be effective as of the date of adoption by the Board,
which date is set forth below, subject to approval of the Plan by a majority of
the votes present and entitled to vote at a duly held meeting of the
shareholders of the Company at which a quorum representing a majority of all
outstanding voting stock is present, either in person or by proxy; provided,
however, that upon approval of the Plan by
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the shareholders of the Company as set forth above, all rights to purchase
shares granted under the Plan on or after the effective date shall be fully
effective as if the shareholders of the Company had approved the Plan on the
effective date. If the shareholders fail to approve the Plan on or before one
year after the effective date, the Plan shall terminate, any rights to purchase
shares granted hereunder shall be null and void and of no effect, and all
contributed funds shall be refunded to participating employees. The Board may
terminate the Plan at any time and for any reason or for no reason, provided
that such termination shall not impair any rights of participating employees
that have vested at the time of termination. In any event, the Plan shall,
without further action of the Board, terminate ten (10) years after the date of
adoption of the Plan by the Board or, if earlier, at such time as all shares of
Common Stock that may be made available for purchase under the Plan pursuant to
Section 1 above have been issued.
24. EFFECT OF CHANGES IN CAPITALIZATION.
(A) CHANGES IN STOCK.
If the number of outstanding shares of Common Stock is increased or
decreased or the shares of Common Stock are changed into or exchanged for a
different number or kind of shares or other securities of the Company by reason
of any recapitalization, reclassification, stock split, reverse split,
combination of shares, exchange of shares, stock dividend, or other distribution
payable in capital stock, or other increase or decrease in such shares effected
without receipt of consideration by the Company occurring after the effective
date of the Plan, the number and kinds of shares that may be purchased under the
Plan shall be adjusted proportionately and accordingly by the Company. In
addition, the number and kind of shares for which rights are outstanding shall
be similarly adjusted so that the proportionate interest of a participating
employee immediately following such event shall, to the extent practicable, be
the same as immediately prior to such event. Any such adjustment in outstanding
rights shall not change the aggregate Purchase Price payable by a participating
employee with respect to shares subject to such rights, but shall include a
corresponding proportionate adjustment in the Purchase Price per share.
(B) REORGANIZATION IN WHICH THE COMPANY IS THE SURVIVING
CORPORATION.
Subject to Subsection (c) of this Section 24, if the Company shall be
the surviving corporation in any reorganization, merger or consolidation of the
Company with one or more other corporations, all outstanding rights under the
Plan shall pertain to and apply to the securities to which a holder of the
number of shares of Common Stock subject to such rights would have been entitled
immediately following such reorganization, merger or consolidation, with a
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corresponding proportionate adjustment of the Purchase Price per share so that
the aggregate Purchase Price thereafter shall be the same as the aggregate
Purchase Price of the shares subject to such rights immediately prior to such
reorganization, merger or consolidation.
(C) REORGANIZATION IN WHICH THE COMPANY IS NOT THE SURVIVING
CORPORATION OR SALE OF ASSETS OR STOCK.
Upon any dissolution or liquidation of the Company, or upon a merger,
consolidation or reorganization of the Company with one or more other
corporations in which the Company is not the surviving corporation, or upon a
sale of all or substantially all of the assets of the Company to another
corporation, or upon any transaction (including, without limitation, a merger or
reorganization in which the Company is the surviving corporation) approved by
the Board that results in any person or entity owning more than 80 percent of
the combined voting power of all classes of stock of the Company, the Plan and
all rights outstanding hereunder shall terminate, except to the extent provision
is made in writing in connection with such transaction for the continuation of
the Plan and/or the assumption of the rights theretofore granted, or for the
substitution for such rights of new rights covering the stock of a successor
corporation, or a parent or subsidiary thereof, with appropriate adjustments as
to the number and kinds of shares and exercise prices, in which event the Plan
and rights theretofore granted shall continue in the manner and under the terms
so provided. In the event of any such termination of the Plan, the Payroll
Deduction Period shall be deemed to have ended on the last trading day prior to
such termination, and in accordance with Section 10 above the rights of each
participating employee then outstanding shall be deemed to be automatically
exercised on such last trading day. The Board shall send written notice of an
event that will result in such a termination to all participating employees not
later than the time at which the Company gives notice thereof to its
stockholders.
(D) ADJUSTMENTS.
Adjustments under this Section 24 related to stock or securities of the
Company shall be made by the Committee, whose determination in that respect
shall be final, binding, and conclusive.
(E) NO LIMITATIONS ON COMPANY.
The grant of a right pursuant to the Plan shall not affect or limit in
any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge, consolidate, dissolve or liquidate, or to sell or
transfer all or any part of its business or assets.
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<PAGE>
25. GOVERNMENTAL REGULATION.
The Company's obligation to issue, sell and deliver shares of Common
Stock pursuant to the Plan is subject to such approval of any governmental
authority and any national securities exchange or other market quotation system
as may be required in connection with the authorization, issuance or sale of
such shares.
26. STOCKHOLDER RIGHTS.
Any dividends paid on shares held by the Company for a participating
employee's account will be transmitted to the employee. The Company will deliver
to each participating employee who purchases shares of Common Stock under the
Plan, as promptly as practicable by mail or otherwise, all notices of meetings,
proxy statements, proxies and other materials distributed by the Company to its
stockholders. Any shares of Common Stock held by the Agent for an employee's
account will be voted in accordance with the employee's duly delivered and
signed proxy instructions. There will be no charge to participating employees in
connection with such notices, proxies and other materials.
27. RULE 16B-3.
Transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or any successor provision under the Securities
Exchange Act of 1934, as amended, (the "Exchange Act"). If any provision of the
Plan or action by the Board fails to so comply, it shall be deemed null and void
to the extent permitted by law and deemed advisable by the Board. Moreover, in
the event the Plan does not include a provision required by Rule 16b-3 to be
stated herein, such provision (other than one relating to eligibility
requirements, or the price and amount of awards) shall be deemed automatically
to be incorporated by reference into the Plan.
28. PAYMENT OF PLAN EXPENSES.
The Company will bear all costs of administering and carrying out the
Plan.
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Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
To be provided by Arthur Andersen
As independent public accountants, we hereby consent to the
incorporation by reference in this Form S-8 Registration Statement of Atlantic
Premium Brands, Ltd. (the "Company") pertaining to Atlantic Premium Brands, Ltd.
Employee Stock Purchase Plan, of our report dated February 21,, 1997 with
respect to the consolidated financial statements of the Company incorporated by
reference in its Annual Report (Form 10-K) for the year ended December 31, 1996,
and the related financial schedules included therein, filed with the Securities
and Exchange Commission.
Baltimore, Maryland
November 4, 1997
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Exhibit 99.1
Section 145 of the Delaware General Corporation Law
(a) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer, employee or agent of a corporation
has been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b) of this section, or defense of
any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section (unless
ordered by a court) shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b) of this
section. Such determination shall be made (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (2) if there are no such directors, or if such directors
so direct, by independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director in
defending any civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the corporation as
authorized in this section.
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Such expenses (including attorneys' fees) incurred by other employees and agents
may be so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this section shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under this section.
(h) For purposes of this section, references to "the corporation" shall include,
in addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employee or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence had
continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this section shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
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<PAGE>
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to hear
and determine all actions for advancement of expenses or indemnification brought
under this section or under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees).
