SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
REGISTRATION STATEMENT
ON
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
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MANHATTAN BAGEL COMPANY, INC.
(Exact name of issuer as specified in its charter)
New Jersey 22-2981539
- ---------- ----------
(state or other jurisdiction of incorporation) (I.R.S. Employer
Identification Number)
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246 Industrial Way
Eatontown, New Jersey 07724
(Address of Principal Executive Offices)
Stock Option Agreement made as of April 1, 1996 between Manhattan
Bagel Company, Inc., and CRC, Inc., as amended
(Full title of plans)
--------
Jack Grumet
Chairman of the Board
Manhattan Bagel Company, Inc.
246 Industrial Way
Eatontown, New Jersey 07724
(908) 544-0155
(Name, address and telephone number of agent for service)
Approximate date of commencement of proposed sales:
From time to time after the effective date
of the Registration Statement
Copies to: Morrison Cohen Singer & Weinstein, LLP
750 Lexington Avenue
New York, New York 10022
Attention: Jack Levy
(212) 735-8600
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CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Offering Registration
be Registered Registered Per Share(1) Price(1) Fee
- ------------------------------------------------------------------------------
Common Stock, 220,000 $10.50 $2,310,000 $796.56
no par value
- ------------------------------------------------------------------------------
(1) Estimated solely for the purpose of determining the amount of the
registration fee. Pursuant to Rule 457, these estimates are based upon the
average of the high and low prices of the Common Stock, as quoted on The
NASDAQ National Market on October 29, 1996.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS*
Item 1. Plan Information
Item 2. Registrant Information and Employee Plan Annual Information
*This information is not required to be included in, and is not
incorporated by reference in, this Registration Statement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by Manhattan Bagel Company,
Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended
(the "1934 Act"), are incorporated by reference herein and shall be deemed
to be part thereof:
1. The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1995.
2. The Company's Quarterly Report on Form 10-QSB for the three months
ended March 31, 1996.
3. The Company's Quarterly Report on Form 10-QSB for the three months
ended June 30, 1996.
4. The Company's Current Report on Form 8-K dated January 9, 1996, as
amended.
5. The Company's Current Report on Form 8-K dated January 17, 1996, as
amended.
6. The Company's Current Report on Form 8-K dated May 23, 1996, as
amended.
7. The Company's Current Report on Form 8-K dated June 21, 1996.
8. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, File No. 0-24388.
9. All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act prior
to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities then remaining offered
have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this
Registration Statement and made part hereof from their respective
dates of filing such documents.
<PAGE>
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The valid issuance of the Common Stock registered in this registration
statement is being passed upon for the Company by its counsel Morrison Cohen
Singer & Weinstein, LLP New York, New York. Jack Levy, a director of the
Company, is a member of that firm. Mr. Levy owns options issued under the
Company's 1994 Stock Option Plan to purchase 9,000 shares of the Company's
Common Stock of which 3,000 are currently exercisable or exercisable within 60
days of the date of this registration statement, and options issued under the
Company's 1996 Stock Option Plan to purchase 10,000 shares of the Company's
Common Stock, none of which are exercisable or exercisable within 60 days of the
date of this registration statement.
Item 6. Indemnification of Directors and Officers
The Company's Restated Certificate of Incorporation provides that the Company
shall indemnify, to the fullest extent permitted under New Jersey law, its
directors and officers against certain liabilities incurred with their service
in such capacities. In addition, the Restated Certificate of Incorporation
provides that the personal liability of directors and officers to the Company
and its stockholders for monetary damages will be limited.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
Exhibit
Number Description
- ------ -----------
4(a).1 Stock Option Agreement made as of April 1, 1996 between CRC, Inc.
and the Registrant and Amendment No.1 dated as of August 14, 1996
thereto
5 Opinion of Morrison Cohen Singer & Weinstein, LLP
23(a) Consent of Amper, Politziner & Mattia
23(b) Consent of Singer Lewak Greenbaum & Goldstein LLP
23(c) Consent of Ernst & Young LLP
23(d) Consent of Rainer & Company
23(e) Consent of Morrison Cohen Singer & Weinstein, LLP
(included in Exhibit 5)
Item 9. Undertakings
(1) 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:
2
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(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 event arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in
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, that paragraphs (1) (a) (i) and (1) (a) (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 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 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; and
(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.
(2) The undersigned registrant hereby undertakes that, for the purpose 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.
(3) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the 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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has responsible 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 Eatontown, New Jersey on October 31, 1996.
MANHATTAN BAGEL COMPANY, INC.
By:/s/ JACK GRUMET
----------------------------------
Jack Grumet, Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities
indicated.
Signature and Title Date
- ------------------- ----
/s/ ANDREW GENNUSA October 31, 1996
- ------------------------------------
Andrew Gennusa
Vice President and Director
/s/ JASON GENNUSA October 31, 1996
- ------------------------------------
Jason Gennusa
President and Chief Operating
Officer and Director
/s/ DAVID GOLDSMITH October 31, 1996
- ------------------------------------
David Goldsmith
Vice Chairman of the Board
/s/ JACK GRUMET October 31, 1996
- ------------------------------------
Jack Grumet
Chairman of the Board and
Chief Executive Officer
(Principal Executive Officer)
/s/ LEONARD R. JOHNSON October 31, 1996
- ------------------------------------
Leonard R. Johnson
Chief Financial Officer
(Principal Financial Officer)
/s/ WALTER CRUICKSHANK October 31, 1996
- ------------------------------------
Walter Cruickshank
(Principal Accounting Officer)
/s/ JACK LEVY October 31, 1996
- ------------------------------------
Jack Levy
Director
October 31, 1996
- ------------------------------------
Julia Heckman
Director
4
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Exhibit Index
Exhibit
Number Description Page
- ------ ----------- ----
4(a) Stock Option Agreement made as of April 1,
1996 between CRC, Inc. and the Registrant,
and Amendment No. 1, dated as of August 14,
1996 thereto
5 Opinion of Morrison Cohen Singer & Weinstein, LLP
23(a) Consent of Amper, Politziner & Mattia
23(b) Consent of Singer Lewak Greenbaum & Goldstein LLP
23(c) Consent of Ernst & Young LLP
23(d) Consent of Rainer & Company
23(e) Consent of Morrison Cohen Singer & Weinstein, LLP
(included in Exhibit 5)
5
EXHIBIT 4(a)
STOCK OPTION AGREEMENT
Manhattan Bagel Company, Inc.
THIS AGREEMENT, made as of April 1, 1995, by Manhattan Bagel Company, Inc.
a New Jersey corporation (hereinafter called the "Company"), with CRC, Inc.
(hereinafter called the "Optionee"):
The Company's Board of Directors (the "Board") on March 28, 1996 authorized
and approved the grant to the Optionee of this option (the "Option") to purchase
all or any part of an aggregate of 220,000 shares of Common Stock of the
Company, no par value (not designated as an Incentive Stock Option pursuant to
Section 422A of the Internal Revenue Code (the "Code")), at a price of $20.75
per share, upon the following terms and conditions:
1. (a) The Option shall be exercisable on and after July 1, 1996 and all
rights of the Optionee to purchase shares of Common Stock hereunder shall
terminate on March 31, 2003 (hereinafter referred to as the "Expiration Date").
(b) The Optionee may exercise the Option with respect to all or any part of
the shares then exercisable by giving the Company written notice, as provided in
paragraph 2 hereof, of such exercise. Such notice shall specify the number of
shares as to which the Option is being exercised and shall be accompanied by
payment in cash of an amount equal to the option price of such shares multiplied
by the number of shares as to which the Option is being exercised. Such purchase
price shall be paid in full upon exercise of the Option.
(c) As soon as practicable after receipt of the notice and payment referred
to in paragraph (b) above, the Company shall deliver to the Optionee at the
office of the Secretary of the Company, 246 Industrial Way West, Eatontown, New
Jersey 077245 or at such other place as may be mutually acceptable to the
Company and the Optionee, a certificate or certificates for such shares;
provided, however, that the time of such delivery may be postponed by the
Company for such period of time as the Company may require to comply with any
applicable registration requirements of any national securities exchange and any
other law or regulation applicable to the issuance or transfer of shares.
(d) Prior to or concurrently with delivery by the Company to the Optionee
of a certificate(s) representing such shares, the Optionee shall (i) upon
notification of the amount due, pay to the Company promptly any amount necessary
to satisfy applicable federal, state or local tax withholding requirements
imposed on the Company, and (ii) if such shares are not then registered under
the Securities Act of 1933, give assurance satisfactory to the Company that such
shares are being purchased for investment and not with a view to the
distribution thereof, and the Optionee shall give such other assurance and take
such other action as the Company shall require to secure
1
<PAGE>
compliance with any federal or state securities law applicable to the issuance
of shares; provided that the out-of-pocket expense of such registration or
compliance shall be borne by the Company.
(e) This Option may be exercised as to any or all shares as to which this
Option is then exercisable; provided that this Option may not be exercised as to
fewer than 100 shares (or less than all the shares as to which this Option is
then exercisable, if fewer than 100 shares).
2. Any notice to the Company provided for in this Option shall be addressed
to the Company in care of its Secretary, 246 Industrial Way West, Eatontown, New
Jersey 07724, and any notice to the Optionee shall be addressed to him at his
address now on file with the Company, or such other address as either may last
have designated to the other by notice as provided herein, with a copy to Gary
A. David, Blanc, Williams, Johnston & Kronstadt, 1900 Avenue of the Stars, Suite
1700, Los Angeles, California 90067. Any notice so addressed shall be deemed to
be given on the fourth business day after mailing, by registered or certified
mail, return receipt requested, at a post office or branch post office within
the United States.
3. If the Optionee shall die or become permanently and totally disabled
within the meaning of Section 22(e)(3) of the Code, this Option may be exercised
as set forth herein by the guardian or legal representative of the Optionee, or
by the Optionee, at any time, but not later than the date on which this Option,
by its terms, otherwise would have expired.
4. (a) Subject to paragraph 4(b), In the event of any change in the
Company's Common Stock subject to the Option, by reason of any stock dividend,
split-up, recapitalization, merger, consolidation, combination or exchange of
shares, spin-off, reorganization, liquidation or the like, such adjustment shall
be made in the number of shares subject to this Option and the price per share
as shall give proper effect to such event.
(b) In the event that a (i) merger or consolidation of the Company in a
transaction where the Company's shareholders are not the majority shareholders
of the surviving entity, (ii) sale by Jack Grumet, Jason Gennusa and Andrew
Gennusa of all of their then shareholdings in the Company, or (iii) sale of all
or substantially all of the assets of the Company, then, if the Board shall so
determine, this Option shall be terminated upon the occurrence of such event,
and the Company shall pay the Optionee in lieu thereof an amount equal to (i)
the excess of the fair market value of one share at the close of business on the
day next preceding occurrence of such event over the option price per share,
multiplied by (ii) the full number of shares subject to this Option, without
regard to whether any installment is then otherwise exercisable. The foregoing
to the contrary notwithstanding, the rights of the Board to terminate the option
and make payment to the Optionee as provided in this Section 4(b) shall only be
exercisable if the fair market value of one share of common stock to be used for
the purposes of the calculation of the amount due to Optionee is not less than
$31.00.
For purposes of this Option, the term "change in control" means an event or
series of events that would be required to be described as a change in control
of the Company in a
2
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proxy or information statement pursuant to Schedule 14A or 14C promulgated under
the Exchange Act. The determination whether and when a change in control has
occurred or is about to occur shall be made by vote of a majority of the persons
who shall have constituted the Board immediately prior to the occurrence of the
event or series of events constituting such change in control.
MANHATTAN BAGEL COMPANY, INC.
By: /s/ Jason Gennusa
----------------------------
Name: Jason Gennusa
Title: President
ACCEPTED and AGREED:
By: /s/ Eric Cano
------------------------------
Eric Cano, Optionee
3
<PAGE>
AMENDMENT NO. 1 TO STOCK OPTION AGREEMENT
AMENDMENT NO. 1 made as of August 14, 1996, by MANHATTAN BAGEL COMPANY,
INC., a New Jersey corporation (hereinafter called the "Company"), with CRC,
INC. (hereinafter called the "Optionee").
WHEREAS, the Company and Optionee are parties to a Stock Option Agreement
made as of April 1, 1996 (the "Agreement"); and
WHEREAS, the Company has agreed to extend the term of the option as set
forth in paragraph 1 thereof;
NOW, THEREFORE, the Company agrees as follows:
1. Paragraph 1(a) of the Agreement is hereby amended to read in its
entirety as follows:
The Option shall be exercisable on and after November 1, 1996 and
all rights of the Optionee to purchase shares of Common Stock hereunder
shall terminate on October 31, 2003 (hereinafter referred to as the
"Expiration Date").
2. Except as set forth in this Amendment No. 1, the terms of the Agreement
shall remain in full force and effect.
IN WITNESS WHEREOF, the Company has executed this Amendment No. 1 as of the
day and year first above written.
MANHATTAN BAGEL COMPANY, INC.
By: /s/ Jack Grumet
----------------------------------
Jack Grumet, Chairman and Chief
Executive Officer
Accepted and Agreed:
CRC, INC.
By: /s/ Eric Cano
---------------------------
Eric Cano
EXHIBIT 5
October 30, 1996
Manhattan Bagel Company, Inc.
246 Industrial Way West
Eatontown, NJ 07724
Dear Sirs:
We have acted as counsel for Manhattan Bagel Company, Inc., a New Jersey
corporation (the "Corporation"), in connection with the 220,000 shares (the
"Shares") of common stock, no par value per share, upon the exercise of options
("Options") granted under the Stock Option Agreement made as of April 1, 1996
between the Company and CRC, Inc.
In so acting, we have participated in the preparation of the Registration
Statement. We have also made such investigation and have examined and relied
upon originals or copies, certified or otherwise identified to our satisfaction,
of such records, documents, certificates and other instruments and such factual
information otherwise supplied to us by the Company as in our judgment are
necessary or appropriate to enable us to render the opinion expressed below.
We are of the opinion that the Shares will, upon issuance in accordance
with the terms of the Options, be legally issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference to us under the "Item 5. Interests
of Named Experts and Counsel." therein.
Very truly yours,
EXHIBIT 23(a)
[Letterhead of Amper, Politziner & Mattia]
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Manhattan Bagel Company, Inc.
and Subsidiaries
We hereby consent to the use in this Form S-3 of our report dated September 8,
1995, except for Note 1 as to which the date is October 31, 1996 relating to the
consolidated financial statements of Manhattan Bagel Company, Inc. and
Subsidiaries for the year ended December 31, 1994.
/s/ Amper, Politziner & Mattia
AMPER, POLITZINER & MATTIA
October 31, 1996
Edison, New Jersey
EXHIBIT 23(b)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated June 16, 1995 accompanying the financial
statements of DAB Industries, Inc. included in the current Report of Manhattan
Bagel Company, Inc. on Form 8-K dated May 23, 1996, as amended. We hereby
consent to the incorporation by reference of said report in this Registration
Statement on Form S-8.
/s/ SINGER LEWAK GREENBAUM & GOLDSTEIN LLP
SINGER LEWAK GREENBAUM & GOLDSTEIN LLP
Los Angeles, California
October 30, 1996
EXHIBIT 23(c)
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333- 0000) pertaining to the Stock Option Agreement made as of April 1,
1996 between Manhattan Bagel Company, Inc. And CRC, Inc. as amended of our
reports (a) dated February 14, 1996 with respect to the consolidated financial
statements for the year ended December 31, 1995 of Manhattan Bagel Company, Inc.
included in its Annual Report (Form 10-KSB) and (b) dated December 31, 1995 of
Manhattan Bagel Company, Inc. which reflects the pooling-of-interest transaction
with Specialty Bakeries, Inc. included in its Current Report on Form 8-K dated
May 23, 1996, as amended, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG
Princeton, New Jersey
October 30, 1996
EXHIBIT 23(d)
[Letterhead of Rainer & Company]
Manhattan Bagel Company, Inc.
246 Industrial Way West
Batontown, NJ 07724
Gentlemen:
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 333-0000) pertaining to the Stock Option Agreement made as of
April 1, 1996, between Manhattan Bagel Company, Inc. and CBC, Inc., as amended
of our report dated February 2, 1996 with respect to the financial statements
for the year ended December 31, 1995 of Specialty Bakeries, Inc., included in
the Current Report on Form 8-K dated May 23, 1996, as amended, of Manhattan
Bagel Company, Inc., filed with the Securities and Exchange Commission.
/s/ Rainer & Company
Rainer & Company
Newtown Square, Pennsylvania
October 31, 1996
