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Registration No. 333-________
Filed May 29, 1998
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FREDERICK BREWING CO.
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(Exact Name of Registrant as specified in its Articles of Incorporation)
Maryland 52-1769647
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(State of incorporation) (IRS Employer Identification No.)
4607 Wedgewood Boulevard
Frederick, Maryland 21703
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(Address of principal executive offices, including zip code)
1995 STOCK OPTION PLAN
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(Full Title of the Plan)
Copies to:
Kevin E. Brannon Jeffrey A. Koeppel, Esq.
Chief Executive Officer Elias, Matz, Tiernan & Herrick L.L.P.
Frederick Brewing Co. 734 15th Street, N.W.
4607 Wedgewood Boulevard Washington, D.C. 20005
Frederick, Maryland 21703 (202) 347-0300
(301) 694-7899
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(Name, address, and telephone number
of agent for service)
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Page 1 of 16 pages
Index to Exhibits is located on page 12.
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Proposed
Securities Maximum Maximum Amount of
to be Amount to be Offering Price Aggregate Registration
Registered Registered(1) Per Share Offering Price Fee
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------
Common Stock, par
value $0.00004 per share 29,129 $0.875(3) $ 25,488(3) $ 8.00
Common Stock, par
value $0.00004 per share 127,261 $1.500(4) $190,892(4) $57.00
------- -------- ------
Total 156,390(2) $216,380 $65.00
======= ======== ======
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the Frederick Brewing Co.'s ("Company" or "Registrant") 1995 Stock Option
Plan (the "Plan") as a result of a stock split, stock dividend or similar
adjustment of the outstanding common stock, par value $0.00004 per share
("Common Stock"), of the Company.
(2) Represents shares currently reserved for issuance pursuant to the Plan.
(3) Estimated solely for the purpose of calculating the registration fee, which
has been calculated pursuant to Rule 457(h) promulgated under the Securities
Act of 1933, as amended ("Securities Act"). The Proposed Maximum Offering
Price Per Share is equal to the weighted average exercise price for the
options to purchase 29,129 shares of Common Stock which are outstanding
under the Plan as of the date hereof.
(4) Estimated solely for the purposes of calculating the registration fee in
accordance with Rule 457(c) promulgated under the Securities Act. The
Proposed Maximum Offering Price Per Share for the 127,261 shares for which
stock options have not been granted under the Plan is equal to the closing
sales price of the Common Stock of the Company on May 15, 1998 on the
National Association of Securities Dealers Automated Quotation ("NASDAQ")
SmallCap Market.
--------------------------
This Registration Statement shall become effective automatically upon the
date of filing in accordance with Section 8(a) of the Securities Act and 17
C.F.R. ss. 230.462.
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<PAGE>
PART I
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
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* Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from the Registration Statement in accordance with Rule 428 under
the Securities Act of 1933, as amended ("Securities Act"), and the Note to
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed or to be filed with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-KSB, as amended,
for the year ended December 31, 1997;
(b) All reports filed by the Company pursuant to Sections
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by the
financial statements in the Annual Report referred to in clause (a)
above;
(c) The description of the Common Stock of the Company
contained in the Company's Registration Statement on Form 8-A (File No.
0-27800) filed with the Commission on February 20, 1996, as amended on
February 29, 1996;
(d) All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof 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.
Any statement contained in this Registration Statement, or in a
document incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein, or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein, modifies or supersedes such statement. Any
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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 since the Company's Common Stock is registered under
Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
The validity of the Company Stock offered hereby will be passed upon
for the Company by Elias, Matz, Tiernan & Herrick L.L.P., Washington, D.C.
Certain partners in such firm own shares of the Common Stock of the Company.
Item 6. Indemnification of Directors and Officers.
The Company is a Maryland corporation. Section 2-405.1(c) of the
Maryland General Corporation Law (the "MGCL") states:
"(c) A person who performs his duties in accordance with the
standard provided in this section shall have the immunity from
liability described under Section 5-417 of the Courts and
Judicial Proceedings Article."
Section 5-417 of the Maryland Courts and Judicial Proceedings Article
states:
"A person who performs the duties of that person in accordance
with the standard provided under Section 2-405.1 of the
Corporations and Associations Article has no liability by
reason of being or having been a director of a corporation."
Section 2-418 of the MGCL states:
"(a) In this section the following words have the meaning
indicated.
(1) "Director" means any person who is or was a
director of a corporation and any person who, while a director
of a corporation, is or was serving at the request of the
corporation as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, other enterprise, or
employee benefit plan.
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(2) "Corporation" includes any domestic or foreign
predecessor entity of a corporation in a merger,
consolidation, or other transaction in which the predecessor's
existence ceased upon consummation of the transaction.
(3) "Expenses" include attorney's fees.
(4) "Official capacity" means the following:
(i) When used with respect to a director, the
office of director in the corporation; and
(ii) When used with respect to a person other
than a director as contemplated in subsection (j), the
elective or appointive office in the corporation held by the
officer, or the employment or agency relationship undertaken
by the employee or agent in behalf of the corporation.
(iii) "Official capacity" does not include
service for any other foreign or domestic corporation or any
partnership, joint venture, trust, other enterprise, or
employee benefit plan.
(5) "Party" includes a person who was, is, or is
threatened to be made a named defendant or respondent in a
proceeding.
(6) "Proceeding" means any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative, or investigative.
(b)(1) A corporation may indemnify any director made a party
to any proceeding by reason of service in that capacity unless
it is established that:
(i) The act or omission of the director was
material to the matter giving rise to the proceeding; and
1. Was committed in bad faith; or
2. Was the result of active and deliberate
dishonesty; or
(ii) The director actually received an improper
personal benefit in money, property, or services; or
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(iii) In the case of any criminal proceeding, the
director had reasonable cause to believe that the act or
omission was unlawful.
(2)(i) Indemnification may be against judgments,
penalties, fines, settlements, and reasonable expenses
actually incurred by the director in connection with the
proceeding.
(ii) However, if the proceeding was one by or in
the right of the corporation, indemnification may not be made
in respect of any proceeding in which the director shall have
been adjudged to be liable to the corporation.
(3)(i) The termination of any proceeding by judgment,
order, or settlement does not create a presumption that the
director did not meet the requisite standard of conduct set
forth in this subsection.
(ii) The termination of any proceeding by
conviction, or a plea of nolo contendere or its equivalent, or
an entry of an order of probation prior to judgment, creates a
rebuttable presumption that the director did not meet that
standard of conduct.
(c) A director may not be indemnified under subsection (b) of
this section in respect of any proceeding charging improper
personal benefit to the director, whether or not involving
action in the director's official capacity, in which the
director was adjudged to be liable on the basis that person
benefit was improperly received.
(d) Unless limited by the charter:
(1) A director who has been successful, on the merits
or otherwise, in the defense of any proceeding referred to in
subsection (b) of this section shall be indemnified against
reasonable expenses incurred by the director in connection
with the proceeding.
(2) A court of appropriate jurisdiction, upon
application of a director and such notice as the court shall
require, may order indemnification in the following
circumstances:
(i) If it determines a director is entitled to to
reimbursement under paragraph (1) of this subsection, the
court shall order indemnification, in which case the director
shall be entitled to recover the expenses of securing such
reimbursement; or
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(ii) If it determines that the director is fairly
and reasonably entitled to indemnification in view of all the
relevant circumstances, whether or not the director has met
the standards of conduct set forth in subsection (b) of this
section or has been adjudged liable under the circumstances
described in subsection (c) of this section, the court may
order such indemnification as the court shall deem proper.
However, indemnification with respect to any proceeding by or
in the right of the corporation or in which liability shall
have been adjudged in the circumstances described in
subsection (c) shall be limited to expenses.
(3) A court of appropriate jurisdiction may be the
same court in which the proceeding involving the director's
liability took place.
(e)(1) Indemnification under subsection (b) of this section
may not be made by the corporation unless authorized for a specific
proceeding after a determination has been made that indemnification of
the director is permissible in the circumstances because the director
has met the standard of conduct set forth in subsection (b) of this
section.
(2) Such determination shall be made:
(i) By the board of directors by a majority vote
of a quorum consisting of directors not, at the time, parties
to the proceeding, or, if such a quorum cannot be obtained,
then by a majority vote of a committee of the board consisting
solely of two or more directors not, at the time, parties to
such proceeding and who were duly designated to act in the
matter by a majority vote of the full board in which the
designated directors who are parties may participate;
(ii) By special legal counsel selected by the
board of directors or a committee of the board by vote as set
forth in subparagraph (i) of this paragraph, or, if the
requisite quorum of the full board cannot be obtained therefor
and the committee cannot be established, by a majority vote of
the full board in which director who are parties may
participate; or
(iii) By the stockholders.
(3) Authorization of indemnification and
determination as to reasonableness of expenses shall be made
in the same manner as the determination that indemnification
7
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is permissible. However, if the determination that
indemnification is permissible is made by special legal
counsel, authorization of indemnification and determination as
to reasonableness of expenses shall be made in the manner
specified in subparagraph (ii) of paragraph (2) of this
subsection for selection of such counsel.
(4) Shares held by directors who are parties to the
proceeding may not be voted on the subject matter under this
subsection.
(f)(1) Reasonable expenses incurred by a director who is a
party to a proceeding may be paid or reimbursed by the
corporation in advance of the final disposition of the
proceeding upon receipt by the corporation of:
(i) A written affirmation by the director of the
director's good faith belief that the standard of conduct
necessary for indemnification by the corporation as authorized
in this section has been met; and
(ii) A written undertaking by or on behalf of the
director to repay the amount if it shall ultimately be
determined that the standard of conduct has not been met.
(2) The undertaking required by subparagraph (ii) of
paragraph (1) of this subsection shall be an unlimited general
obligation of the director but need not be secured and may be
accepted without reference to financial ability to make the
repayment.
(3) Payments under this subsection shall be made as
provided by the charter, bylaws, or contract or as specified
in subsection (e) of this section.
(g) The indemnification and advancement of expenses provided
or authorized by this section may not be deemed exclusive of any other
rights, by indemnification or otherwise, to which a director may be
entitled under the charter, the bylaws, a resolution of stockholders or
directors, an agreement or otherwise, both as to action in an official
capacity and as to action in another capacity while holding such
office.
(h) This section does not limit the corporation's power to pay
or reimburse expenses incurred by a director in connection with an
appearance as a witness in a proceeding at a time when the director has
not been made a named defendant or respondent in the proceeding.
(i) For purposes of this section:
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(1) The corporation shall be deemed to have requested
a director to serve an employee benefit plan where the
performance of the director's duties to the corporation also
imposes duties on, or otherwise involves services by, the
director to the plan or participants or beneficiaries of the
plan;
(2) Excise taxes assessed on a director with respect
to an employee benefit plan pursuant to applicable law shall
be deemed fines; and
(3) Action taken or omitted by the director with
respect to an employee benefit plan in the performance of the
director's duties for a purpose reasonably believed by the
director to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a purpose
which is not opposed to the best interests of the corporation.
(j) Unless limited by the charter:
(1) An officer of the corporation shall be
indemnified as and to the extent provided in subsection (d) of
this section for a director and shall be entitled, to the same
extent as a director, to seek indemnification pursuant to the
provisions of subsection (d);
(2) A corporation may indemnify and advance expenses
to an officer, employee, or agent of the corporation to the
same extent that it may indemnify directors under this
section; and
(3) A corporation, in addition, may indemnify and
advance expenses to an officer, employee, or agent who is not
a director to such further extent, consistent with law, as may
be provided by its charter, bylaws, general or specific action
of its board of directors, or contract.
(k)(1) A corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee, or
agent of the corporation, or who, while a director, officer, employee,
or agent of the corporation, is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee, or
agent of another foreign or domestic corporation, partnership, joint
venture, trust, other enterprise, or employee benefit plan against any
liability asserted against and incurred by such person in any such
capacity or arising out of such person's position, whether or not the
corporation would have the power to indemnify against liability under
the provisions of this section.
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(2) A corporation may provide similar protection,
including a trust fund, letter of credit, or surety bond, not
inconsistent with this section.
(3) The insurance or similar protection may be
provided by a subsidiary or an affiliate of the corporation.
(l) Any indemnification of, or advance of expenses to, a
director in accordance with this section, if arising out of a
proceeding by or in the right of the corporation, shall be reported in
writing to the stockholders with the notice of the next stockholders'
meeting or prior to the meeting."
The Amended and Restated Articles of Incorporation ("Articles") of the
Company also limit the liability of, and provide indemnification to, directors
and officers of the Company. Article VIII of the Company's Articles states:
"A. Limitation of Liability. No director who has performed his or her
duties in accordance with the standard set forth in Section 2-405.1 of the MGCL
(or any successor provision thereto) shall be personally liable to the
Corporation or its stockholders for monetary damages for any act or omission by
such director as a director; provided that a director's liability shall not be
limited or eliminated to the extent that: (i) it is proved that the director
actually received an improper benefit or profit in money, property or services
for the amount of the benefit or profit in money, property or services actually
received; or (ii) a judgment or other final adjudication adverse to the director
is entered in a proceeding based on a finding in the proceeding that the
director's action, or failure to act, was the result of active and deliberate
dishonesty and was material to the cause of action adjudicated in the
proceeding. No amendment to or repeal of this Article VIII.A. shall apply to or
have any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment.
B. Indemnification. The Corporation shall indemnify any person who was
or is a party or is threatened to be a made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative, by reason of the fact that such
person 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 or employee benefit plan, against liability and expenses
(including court costs and attorney's fees), judgments, fines, excise taxes and
amounts paid in satisfaction, settlement or compromise actually and reasonably
incurred by such person in connection with such action, suit or proceeding to
the full extent authorized by Section 2-418 of the MGCL or any successor
provision thereto.
C. Advancement of Expenses. Reasonable expenses incurred by a director,
officer, employee or agent of the Corporation in defending a civil or criminal
action, suit or proceeding described in Article VIII.B. shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors only upon receipt of written
affirmation by or on behalf of such person of his good faith belief that he has
met the standard of conduct necessary for indemnification under relevant law and
a written undertaking to repay such amount if it shall ultimately be determined
that the person has not met that standard.
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D. Other Rights and Remedies. The indemnification provided by this
Article VIII shall not be deemed to exclude any other rights to which those
seeking indemnification or advancement of expenses may be entitled under the
Corporation's Articles of Amendment, any insurance or other agreement, trust
fund, letter of credit, surety bond, vote of stockholders or disinterested
directors or otherwise, both as to actions in their official capacity and as to
actions in another capacity while holding such office, and shall 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 person;
provided that no indemnification shall be made to or on behalf of an individual
if a judgment or other final adjudication establishes that his actions, or
omissions to act, were material to the cause of action as adjudicated and (i)
were committed in bad faith; or (ii) were the result of active and deliberate
dishonesty; or (iii) the director actually received an improper personal benefit
in money, property or services; or (iv) in the case of any criminal proceedings,
the director had reasonable cause to believe that the act or omission was
unlawful; provided, however, that a director who has been successful, on the
merits or otherwise, in the defense of proceedings referred to under clauses (i)
through (iv) above, may still be indemnified as to reasonable expenses actually
incurred by such person in connection with the proceeding as approved by a
disinterested majority of the Board of Directors.
E. Insurance. Upon resolution passed by the Board of Directors, the
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the Corporation, or was serving
at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or another enterprise or
employee benefit plan, against any liability asserted against him or incurred by
him in any such capacity, or arising out of his status, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article or the MGCL.
F. Modification. The duties of the Corporation to indemnify and to
advance expenses to a director, officer, employee or agent provided in this
Article VIII shall be in the nature of a contract between the Corporation and
each such director, officer, employee or agent and no amendment or repeal of any
provision of this Article VIII shall alter, to the detriment of such director,
officer, employee or agent, the right of such person to the advance of expenses
or indemnification related to a claim based on an act or failure to act which
took place prior to such amendment or repeal.
G. Proceedings Initiated by Indemnified Persons. Notwithstanding any
other provision of this Article VIII, the Corporation shall not indemnify a
director, officer, employee or agent for any liability incurred in an action,
suit or proceeding initiated by (which shall not be deemed to include
counter-claims or affirmative defenses) or participated in as an intervenor or
amicus curiae by the person seeking indemnification unless such initiation of or
participation in the action, suit or proceeding is authorized, either before or
after its commencement, by the affirmative vote of a disinterested majority of
the directors then in office."
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Article X of the Company's Bylaws states:
"(a) A director of the Corporation shall not be personally
liable for monetary damages for action taken, or any failure to take action, as
a director, to the extent set forth in the Corporation's Amended and Restated
Articles of Incorporation, which provisions are incorporated herein with the
same affect as if they were set forth herein.
(b) The Corporation shall indemnify any person who is a
director, officer, employee or agent of the Corporation to the extent set forth
in the Corporation's Amended and Restated Articles of Incorporation, which
provisions are incorporated herein with the same affect as if they were set
forth herein."
In addition, the Company has obtained a directors and officers
liability insurance policy relating to certain actions or omissions which may be
taken, or omitted to be taken, by the directors and officers of the Company, as
well as a policy which insures against errors and omissions in the offering
documents relating to the initial offer and sale of the Common Stock to the
public.
Item 7. Exemption from Registration Claimed.
Not applicable since no restricted securities will be reoffered or
resold pursuant to this Registration Statement.
Item 8. Exhibits
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds to Exhibit Table
in Item 601 of Regulation S-B):
No. Exhibit
--- -------
4 Common Stock Certificate*
5 Opinion of Elias, Matz, Tiernan & Herrick
L.L.P. as to the legality of the securities
23.1 Consent of Elias, Matz, Tiernan & Herrick
L.L.P. (contained in the opinion included
as Exhibit 5)
23.2 Consent of Coopers & Lybrand L.L.P.
24 Power of attorney for any subsequent
amendments is located in the signature pages
99 1995 Stock Option Plan*
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* Incorporated by reference from the Company's Registration Statement
on Form SB-2 (Commission File No. 33-80355) filed with the Commission
on December 12, 1995, as amended.
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Item 9. Undertakings.
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, and (iii) to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change in such
information in the Registration Statement; provided, however, that clauses (i)
and (ii) do not apply if the information required to be included in a
post-effective amendment by those clauses 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.
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.
4. That, for the 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 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.
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5. 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 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 liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the questions whether such indemnification by it is against public
policy expressed in the Securities 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 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 Frederick, State of Maryland on the 29th day of
May, 1998.
FREDERICK BREWING CO.
By: /s/ Kevin E. Brannon
----------------------------
Kevin E. Brannon
Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
hereby makes, constitutes and appoints Kevin E. Brannon or Marjorie A. McGinnis,
his or her true and lawful attorney, with full power to sign for such person and
in such person's name and capacity indicated below, and with full power of
substitution any and all amendments to this registration statement, hereby
ratifying and confirming such person's signature as it may be signed by said
attorney to any and all amendments.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Kevin E. Brannon Chairman of the Board and Chief Executive May 29, 1998
- ---------------------------- Officer
Kevin E. Brannon
/s/ Marjorie A. McGinnis President and Director May 29, 1998
- ----------------------------
Marjorie A.McGinnis
/s/ Nicholas P. Foris, M.D. Director May 29, 1998
- ----------------------------
Nicholas P. Foris, M.D.
/s/ Carl R. Hildebrand Director May 29, 1998
- ----------------------------
Carl R. Hildebrand
/s/ Jerome M. Pool Director May 29, 1998
- ----------------------------
Jerome M. Pool
<PAGE>
/s/ James Lutz Director May 29, 1998
- ----------------------------
James Lutz
/s/ Maribeth Visco Director May 29, 1998
- ----------------------------
Maribeth Visco
</TABLE>
Exhibit 5
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
734 15th Street, N.W.
Washington D.C. 20005
(202) 347-0300
May 29, 1998
Board of Directors
Frederick Brewing Co.
4607 Wedgewood Boulevard
Frederick, Maryland 21703
Re: Registration Statement on Form S-8
156,390 Shares of Common Stock
Ladies and Gentlemen:
We are special counsel to Frederick Brewing Co., a Maryland corporation
(the "Corporation"), in connection with the preparation and filing with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended, of a Registration Statement on Form S-8 (the "Registration Statement"),
relating to the registration of up to 156,390 shares of the Corporation's common
stock, par value $.00004 per share ("Common Stock"), to be issued pursuant to
the Corporation's 1995 Stock Option Plan (the "Plan") upon the exercise of stock
options. The Registration Statement also registers an indeterminate number of
additional shares which may be necessary under the Plan to adjust the number of
shares reserved thereby for issuance as the result of a stock split, stock
dividend or similar adjustment of the outstanding Common Stock of the
Corporation. We have been requested by the Corporation to furnish an opinion to
be included as an exhibit to the Registration Statement.
For this purpose, we have reviewed the Registration Statement and
related Prospectus, the Amended and Restated Articles of Incorporation (as
amended) and the Amended and Restated Bylaws of the Corporation, the Plan, a
specimen stock certificate evidencing the Common Stock of the Corporation and
such other corporate records and documents as we have deemed appropriate. We are
relying upon the originals, or copies certified or otherwise identified to our
satisfaction, of the corporate records of the Corporation and such other
instruments, certificates and representations of public officials, officers and
representatives of the Corporation as we have deemed relevant as a basis for the
opinions expressed herein. In addition, we have assumed, without independent
verification, the genuineness of all signatures and the authenticity of all
documents furnished to us and the conformance in all respects of copies to
originals. Furthermore, we have made such factual inquiries and reviewed such
laws as we determined to be relevant for this opinion.
<PAGE>
Board of Directors
May 29, 1998
Page 2
For purposes of this opinion, we have also assumed that (i) the shares
of Common Stock issuable pursuant to stock options granted under the terms of
the Plan will continue to be validly authorized on the dates the Common Stock is
issued pursuant to the stock options and reserved by the Corporation for the
purpose of issuance under the Plan; (ii) on the dates the stock options are
exercised, the stock options granted under the terms of the Plan will constitute
valid, legal and binding obligations of the Corporation and will (subject to
applicable bankruptcy, moratorium, insolvency, reorganization and other laws and
legal principles affecting the enforceability of creditors' rights generally) be
enforceable as to the Corporation in accordance with their terms; (iii) the
stock options are exercised in accordance with their terms and the exercise
price therefor is paid in accordance with the terms thereof; (iv) no change
occurs in applicable law or the pertinent facts; (v) the provisions of "blue
sky" and other securities laws as may be applicable will have been complied with
to the extent required; and (vi) there is no other legal impediment to the
issuance of the Common Stock pursuant to the Plan.
Based on the foregoing, and subject to the assumptions set forth
herein, we are of the opinion as of the date hereof that the shares of Common
Stock to be issued pursuant to the Plan, when issued and sold pursuant to the
Plan and upon receipt of the consideration required thereby, will be legally
issued, fully paid and non-assessable shares of Common Stock of the Corporation.
We hereby consent to the reference to this firm under the caption
"Legal Opinion" in the Prospectus of the Plan and to the filing of this opinion
as an exhibit to the Registration Statement.
Very truly yours,
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
By: /s/ Jeffrey A. Koeppel
---------------------------------
Jeffrey A. Koeppel, a Partner
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8 (File No. 333- ) of our report dated March 30, 1998,
on our audits of the financial statements of Frederick Brewing Co. as of and for
the years ended December 31, 1997.
/s/ Coopers & Lybrand L.L.P.
McLean, Virginia
May 29, 1998
