================================================================================
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------------
CHESHIRE DISTRIBUTORS, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 84-1209978
-------- ----------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1599 Post Road East
Westport, Connecticut 06880
--------------------- -----
(Address of Principal Executive Offices) (Zip Code)
Cheshire Distributors, Inc. 2000 Omnibus Stock Incentive Plan
-------------------------------------------------------------
(Full title of the plan)
Willem Oost-Lievense
Chief Executive Officer
Cheshire Distributors, Inc.
1599 Post Road East
Westport, Connecticut 06880
---------------------------------------
(Name and address of agent for service)
(203) 255-4116
--------------
(Telephone number, including area code of agent for service)
Copy to:
David E. Fleming, Esq.
Cummings & Lockwood
Four Stamford Plaza
Stamford, Connecticut 06904-0120
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
=====================================================================================================
<CAPTION>
Proposed Proposed
maximum 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>
Common Stock,
par value $.001 per
share 1,000,000(1) $5.00 $5,000,000 $1,320.00
=====================================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of Common
Stock which become issuable under the Plan being registered pursuant to this
Registration Statement by reason of any stock dividend, stock split,
recapitalization or any other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
Registrant's outstanding shares of Common Stock.
(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 May 24, 2000.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
----------------------------------------------------
This Registration Statement relates to the offer and sale by Cheshire
Distributors, Inc., a Delaware corporation (the "Company"), of up to an
aggregate of 1,000,000 shares of its Common Stock, par value $.001 per share
(the "Common Stock"), which may be sold pursuant to the Cheshire Distributors
2000 Omnibus Stock Incentive Plan (the "Plan").
The documents containing the information specified in Part 1 of the
Form S-8 Registration Statement under the Securities Act of 1933 (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 employees receiving options under the 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-KSB for the year ended
December 31, 1999;
2. The Company's Quarterly Reports on Form 10-QSB for the quarters
ended March 31, 2000, September 30, 1999 and June 30, 1999;
3. The Company's Current Report on Form 8-K dated January 24, 2000;
4. The Company's Current Report on Form 8-K dated March 7, 2000;
5. The Company's Current Report on Forms 8-K and 8-K/A dated April
12, 2000;
6. The Company's Current Report on Form 8-K dated April 24, 2000;
7. The Company's Information Statement on Form 14-C dated May 5,
2000; and
8. The Company's S-8 Registration Statement dated February 3, 2000.
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
II-1
<PAGE>
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.
The Company's Certificate of Incorporation, as amended (the "Certificate of
Incorporation"), includes a provision as permitted 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.
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 10SB (Registration No. 000-26186)
and the Company's Current Report on Form 8-K/A dated April 12,
2000).
Exhibit 4(b) The Company's By-laws (incorporated by reference to Exhibit 3(B)
to the Company's Registration Statement on Form 10SB
(Registration No. 000-26186) and the Company's Current Report on
Form 8-K/A dated April 12, 2000).
Exhibit 4(c) Cheshire Distributors, Inc. 2000 Omnibus Stock Incentive Plan
(incorporated herein by reference to Annex A to the Company's
14-C Information Statement dated May 5, 2000).
Exhibit 5 Opinion of Cummings & Lockwood
Exhibit 23(a) Consent of Comiskey & Company, P.C., Certified Public Accountants
Exhibit 23(b) Consent of Cummings & Lockwood (included in Exhibit 5)
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.
(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.
II-2
<PAGE>
(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.
(c) 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 Westport, State of Connecticut, on May 24, 2000.
CHESHIRE DISTRIBUTORS, INC.
By: /s/ Willem Oost-Lievense
---------------------------------
Willem Oost-Lievense
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 shown on the 24th day of May, 2000.
Name Title
- ---- -----
/s/ Lev Greenberg Chairman of the Board Date: May 24, 2000
- -------------------------- and President -------------
Lev Greenberg (Principal Executive
officer)
/s/ Gilad Gat Vice President and Date: May 24, 2000
- -------------------------- Director -------------
Gilad Gat
/s/ Willem Oost-Lievense Chief Executive Officer, Date: May 24, 2000
- -------------------------- Senior Vice President and -------------
Willem Oost-Lievense Director Secretary
/s/ Jerry Kleinberg Chief Financial Officer Date: May 24, 2000
- -------------------------- (Principal financial and -------------
Jerry Kleinberg accounting officer)
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 10SB (Registration No. 000-26186)
and the Company's Current Report on Form 8-K/A dated April 12,
2000).
Exhibit 4(b) The Company's By-laws (incorporated by reference to Exhibit 3(B)
to the Company's Registration Statement on Form 10SB
(Registration No. 000-26186) and the Company's Current Report on
Form 8-K/A dated April 12, 2000).
Exhibit 4(c) Cheshire Distributors, Inc. 2000 Omnibus Stock Incentive Plan
(incorporated herein by reference to Annex A to the Company's
14-C Information Statement dated May 5, 2000).
Exhibit 5 Opinion of Cummings & Lockwood
Exhibit 23(a) Consent of Comiskey & Company, P.C., Certified Public Accountants
Exhibit 23(b) Consent of Cummings & Lockwood (included in Exhibit 5)
EXHIBIT 5
OPINION AND CONSENT OF CUMMINGS & LOCKWOOD
May 25, 2000
Cheshire Distributors, Inc.
1599 Post Road East
Westport, CT 06880
Re: Cheshire Distributors, Inc. - Registration Statement for
Offering of an Aggregate of 1,000,000 Shares of Common Stock
------------------------------------------------------------
Dear Ladies and Gentlemen:
We have acted as counsel to Cheshire Distributors, Inc., a Delaware
corporation (the "Company"), in connection with the registration on Form S-8
(the "Registration Statement") under the Securities Act of 1933, as amended, of
1,000,000 shares of common stock and related stock options for issuance (the
"Shares") under the Company's 2000 Omnibus Stock Incentive Plan (the "Plan").
This opinion is being furnished in accordance with the requirements of
Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Company's charter documents and the corporate
proceedings taken by the Company in connection with the establishment of the
Plan. Based on such review, we are of the opinion that, if, as and when the
Shares have been issued and sold (and the consideration therefor received)
pursuant to the provisions of option agreements duly authorized under the Plan
and in accordance with the Registration Statement, such Shares will be duly
authorized, legally issued, fully paid and nonassessable.
We consent to the filing of this opinion letter as Exhibit 5 to the
Registration Statement.
This opinion letter is rendered as of the date first written above and
we disclaim any obligation to advise you of facts, circumstances, events or
developments which hereafter may be brought to our attention and which may
alter, affect or modify the opinion expressed herein. Our opinion is expressly
limited to the matters set forth above and we render no opinion, whether by
implication or otherwise, as to any other matters relating to the Company, the
Plan or the Shares.
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,
April 14, 2000 included in Cheshire Distributors, Inc.'s Form 10-KSB for the
fiscal year ended December 31, 1999, and to all references to our firm included
in this registration statement and the related prospectus.
/S/
COMISKEY & COMPANY, P.C.
May 25, 2000
