As Filed with the Securities and Exchange Commission
on February 22, 2000
================================================================================
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENTUNDERTHE SECURITIES ACT OF 1933
LINCOLN SNACKS COMPANY
(Exact name of registrant as specified in its charter)
Delaware 47-0758569
-------- ----------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
4 High Ridge Park
Stamford, Connecticut 06905
--------------------- -----
(Address of Principal Executive Offices) (Zip Code)
Lincoln Snacks Company 1993 Stock Option Plan
(Full title of the plan)
Kristine A. Crabs
Vice President and Chief Financial Officer
Lincoln Snacks Company
4 High Ridge Park
Stamford, Connecticut 06905
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(Name and address of agent for service)
(203) 329-4545
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(Telephone number, including area code of agent for service)
Copy to:
Paul G. Hughes
Cummings & Lockwood
P. O. Box 120
Four Stamford Plaza
Stamford, Connecticut 06904-0120
<PAGE>
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered registered share(2) price(2) registration fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Common Stock, par
value $.01 per share 500,000 (1) $1.50 $750,000 $198.00
</TABLE>
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(1) Pursuant to Rule 429 under the Securities Act of 1933, this Registration
Statement may relate to 550,000 shares of Common Stock and 200,000 shares
of Common Stock of Lincoln Snacks Company previously registered by Lincoln
Snacks Company on its Registration Statement on Form S-8 (No. 33-99404)
which may be offered pursuant to the Lincoln Snacks Company 1993 Stock
Option Plan or the Lincoln Snacks Company Non-Employee Directors' Stock
Option Plan, respectively. Such shares of Common Stock are being carried
forward in connection with this Registration Statement. In the event any
such previously registered and unsold shares of Common Stock are offered
and sold prior to the effective date of this Registration Statement, the
number of shares of such Common Stock will not be included hereunder. The
amount of the filing fee paid with Lincoln Snacks Company's Registration
Statement on Form S-8 (No. 33-99404) was $753.
(2) Calculated pursuant to Rule 457(h) of the rules and regulations under the
Securities Act of 1933 solely for the purpose of calculating the
registration fee, based upon the average of the bid and asked prices for
the Common Stock as reported on the over-the-counter market on February 18,
2000.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
This Registration Statement relates to the offer and sale by Lincoln Snacks
Company, a Delaware corporation (the "Company"), of up to 500,000 shares of its
of Common Stock, $.01 par value (the "Common Stock"), pursuant to the Lincoln
Snacks Company 1993 Stock Option Plan, as amended (as so amended, the "Employee
Plan"). Pursuant to Rule 429 under the Securities Act of 1933, as amended (the
"1933 Act"), the prospectus relating to the Employee Plan and the Lincoln Snacks
Company Non-Employee Directors' Stock Option Plan (the "Director Plan") relates
to an additional 550,000 and 200,000 shares of Common Stock, respectively, which
were included in the Company's Registration Statement on Form S-8 (No. 33-99404)
but which remained unsold as of the date of this Registration Statement. The
documents containing the information concerning the Employee Plan and the
Director Plan specified in Item 1 of the Form S-8 registration statement under
the 1933 Act are not being filed as part of this Registration Statement in
accordance with the Note to Part I of the Form S-8 registration statement but
will be sent or given to persons receiving options under the Employee Plan or
the Director Plan in accordance with Rule 428(b)(1) under the 1933 Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated into this Registration
Statement by reference:
1. The Company's Annual Report on Form 10-K for the year ended June
30, 1999;
2. The Company's Quarterly Reports on Form 10-Q for the quarters
ended September 30, 1999 and December 31, 1999;
3. The Company's Current Report on Form 8-K dated December 22, 1999;
and
4. The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A dated December 10, 1993,
including any amendments or reports filed for the purpose of
updating such description..
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the "1934
Act") after the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference into this Registration Statement and to be a
part hereof from the date of filing of such documents.
To the extent that independent public accountants audit and report on
financial statements of the Company issued at future dates, and consent to the
use of their reports thereon, such financial statements shall also be
incorporated by reference in this Registration Statement in reliance upon their
reports and their authority as experts in accounting and auditing.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL") grants
each corporation organized thereunder the power to indemnify its officers,
directors, employees and agents on certain conditions against liabilities
arising out of any action or proceeding to which any of them is a party by
reason of being such officer, director, employee or agent. Section 102(b)(7) of
the DGCL permits a Delaware corporation, with the approval of its stockholders,
to include in its certificate of incorporation a provision eliminating or
limiting the personal liability of its directors to that corporation or its
stockholders for monetary damages resulting from certain breaches of the
directors' fiduciary duty of care, both in suits by or on behalf of the
corporation and in actions by stockholders of the corporation.
II-1
<PAGE>
The Company's Certificate of Incorporation, as amended (the "Certificate of
Incorporation"), includes a provision as permited by Section 102(b)(7) of the
DGCL. The Certificate of Incorporation also provides for the indemnification, to
the fullest extent permitted by the DGCL, of directors, officers, employees and
agents of the Company.
The Company's By-laws contain provisions concerning the indemnification of
officers, directors, employees and agents which are substantially identical to
those contained in the Certificate of Incorporation.
The Company has purchased a Directors, Officers and Corporate Liability
Insurance Policy issued by National Union Fire Insurance Company of Pittsburgh,
PA. This policy extends from July 1, 1999 to July 1, 2000.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit 4(a) The Company's Certificate of Incorporation, as amended
(incorporated by reference to Exhibit 3(A) to the Company's
Registration Statement on Form S-1 (Registration No. 33-71432))
Exhibit 4(b) The Company's By-laws (incorporated by reference to
Exhibit 3(B) to the Company's Registration Statement on Form S-1
(Registration No. 33-71432))
Exhibit 5 Opinion of Cummings &Lockwood
Exhibit 23(a) Consent of Arthur Andersen LLP
Exhibit 23(b) Consent of Cummings & Lockwood (included in Exhibit 5)
Exhibit 24 Power of Attorney
Exhibit 99(a) The Lincoln Snacks Company 1993 Stock Option Plan, as
amended (incorporated by reference to Annex A to the Company's
definitive Proxy Statement dated October 27, 1999 (Commission
File No. 0-23048))
Exhibit 99(b) The Lincoln Snacks Company Non-Employee Directors' Stock
Option Plan, as amended (incorporated by reference to Exhibit 4.1
to the Company's Registration Statement on Form S-8 (Registration
No. 33-99404))
Item 9. Undertakings (a) The Company 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 this Registration Statement (or the most
recent post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
Provided, however, that the undertakings set forth in paragraphs (a)(1)(i)
and (a)(1)(ii) above do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in periodic reports
filed by the Company pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this Registration
Statement.
II-2
<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 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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company'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 any employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in this 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.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 Securities and Exchange Commission such
indemnification is against public policy as expressed in that 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 that Act and will be governed by the final adjudication
of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Stamford, State of Connecticut, on February 22, 2000.
LINCOLN SNACKS COMPANY
By: /s/ Kristine A. Crabs
-------------------------------
Kristine A. Crabs
Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities shown on the 22nd day of February, 2000.
HENDRIK J. HARTONG, III Director, President )
and Chief Executive )
Officer (Principal )
executive officer) )
KRISTINE A. CRABS Vice President and )
Chief Financial Officer) By /s/ Hendrik J. Hartong III
) ---------------------------
(Principal financial )
and accounting officer)) Name: Hendrik J. Hartong III
) Attorney-in-fact
HENDRIK J. HARTONG, JR. Director )
JOHN T. GRAY Director )
C. ALAN MACDONALD Director )
IAN B. MACTAGGART Director )
RICHARD ZWARTENDIJK Director )
II-4
<PAGE>
Exhibit Index
Exhibit 4(a) The Company's Certificate of Incorporation, as
amended (incorporated by reference to Exhibit 3(A) to the
Company's Registration Statement on Form S-1 (Registration
No. 33-71432))
Exhibit 4(b) The Company's By-laws (incorporated by reference to
Exhibit 3(B) to the Company's Registration Statement on Form
S-1 (Registration No. 33-71432))
Exhibit 5 Opinion of Cummings &Lockwood
Exhibit 23(a) Consent of Arthur Andersen LLP
Exhibit 23(b) Consent of Cummings & Lockwood (included in Exhibit 5)
Exhibit 24 Power of Attorney
Exhibit 99(a) The Lincoln Snacks Company 1993 Stock Option Plan,
as amended (incorporated by reference to Annex A to the
Company's definitive Proxy Statement dated October 27, 1999
(Commission File No. 0-23048)
Exhibit 99(b) The Lincoln Snacks Company Non-Employee Directors'
Stock Option Plan, as amended (incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on Form
S-8 (Registration No. 33-99404))
A Partnership of
Professional Corporations
Greenwich
Cummings & Lockwood Four Stamford Plaza Hartford
PO Box 120 New Haven
Stamford, CT 06904-0120 Bonita Springs
203-327-1700 Naples
Fax 203-351-4535 Palm Beach
www.cl-law.com Vero Beach
February 22, 2000
The Board of Directors
Lincoln Snacks Company
4 High Ridge Park
Stamford, Connecticut 06905
Re: Lincoln Snacks Company - Registration Statement on Form S-8
Dear Sirs:
We have acted as counsel for Lincoln Snacks Company, a Delaware corporation (the
"Company"), in connection with its registration statement on Form S-8 being
filed on the date hereof (the "Registration Statement") relating to 500,000
shares (the "Shares") of Common Stock, par value $.01 per share (the "Common
Stock"), of the Company which may be issued pursuant to the Lincoln Snacks
Company 1993 Stock Option Plan, as amended (as so amended, the "Plan").
In that connection, we have examined originals, or copies certified or otherwise
identified to our satisfaction, of such documents, corporate records, and other
instruments as we have deemed necessary or appropriate for the purpose of
rendering this opinion, including: (a) the Certificate of Incorporation of the
Company, as amended, in the form filed as Exhibit 3(A) to the Company's
Registration Statement on Form S-1 (Registration No. 33-71432); (b) the By-laws
of the Company in the form filed as Exhibit 3(B) to the Company's Registration
Statement on Form S-1 (Registration No. 33-71432) (c) resolutions adopted by the
Board of Directors of the Company at a meeting held August 4, 1999, certified by
the Secretary of the Company; (d) minutes of the annual meeting of stockholders
of the Company held December 6, 1999; (e) the Registration Statement; and (f)
the Plan.
Based upon the foregoing and assuming that the purchase price of the Shares
issued pursuant to the Plan will not be less than the par value of the Shares,
we are of the opinion that the Shares will, upon issuance in accordance with the
provisions of the Plan subsequent to the exercise of options granted under the
Plan, be validly issued, fully paid, and nonassessable.
The opinion contained herein is qualified as follows. Pursuant to the Plan, the
Company may use currently issued shares of its Common Stock which it owns or may
hereafter acquire to satisfy its obligation to deliver shares under the Plan in
lieu of issuing new shares. As an opinion with respect to any such treasury
shares which might be delivered to satisfy obligations under the Plan would
require a review of all issuances of Common Stock by the Company from the date
of its
<PAGE>
The Board of Directors -2- February 22, 2000
Lincoln Snacks Company
incorporation, the opinion contained herein is intentionally and specifically
limited to such of the Shares which may hereafter be issued by the Company for
delivery pursuant to the Plan. The opinion contained herein is also
intentionally and specifically limited to the Shares and does not relate to the
shares of Common Stock being carried forward in connection with the Registration
Statement.
The opinion contained herein is limited in that no opinion is expressed other
than as to the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as Exhibit 5 to the Registration
Statement.
Very truly yours,
/s/ CUMMINGS & LOCKWOOD
Exhibit 23(a)
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated August 6, 1999,
included in Lincoln Snacks Company's Form 10-K for the fiscal year ended June
30, 1999, and to all references to our firm included in this registration
statement and the related prospectus.
/S/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Stamford, Connecticut
February 18, 2000
Exhibit 24
Power of Attorney
We, the undersigned officers and directors of Lincoln Snacks Company (the
"Company"), hereby severally constitute Hendrik J. Hartong, III and Kristine A.
Crabs, and each of them singly, as our attorneys-in-fact with full power to
them, and each of them singly, to sign for us and in our names and in our
capacities as directors and/or officers of the Company, the Registration
Statement on Form S-8 relating to the offer and sale of shares of the Company's
Common Stock, $.01 par value, pursuant to the Lincoln Snacks Company 1993 Stock
Option Plan, as amended, and, in accordance with Rule 429 under the Securities
Act of 1933, as amended, the Lincoln Snacks Company Non-Employee Directors'
Stock Option Plan, and any and all amendments to such Registration Statement,
which Registration Statement is being filed pursuant to the Securities Act of
1933, as amended, and, in general, to do all such things in our names and behalf
and in our capacities as directors and officers to enable the Company to comply
with the provisions of the Securities Act of 1933, as amended, and all
requirements of the Securities and Exchange Commission, including the filing of
such amendments, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, and all
that our said attorneys may do or cause to be done by virtue hereof.
In witness whereof, each of the undersigned has hereunto set his or her
hand and seal this 22nd day of February, 2000.
/s/ Hendrik J. Hartong, Jr. /s/ John T. Gray
- ----------------------------- ---------------------------
Hendrik J. Hartong, Jr. John T. Gray
/s/ C. Alan MacDonald /s/ Ian B. MacTaggart
- ----------------------------- ---------------------------
C. Alan MacDonald Ian B. MacTaggart
/s/ Hendrik J. Hartong III /s/ Robert Zwartendijk
- ----------------------------- ---------------------------
Hendrik J. Hartong III Robert Zwartendijk
/s/ Kristine A. Crabs
---------------------------
Kristine A. Crabs
