<PAGE>
To Become Effective Upon Filing Pursuant to Rule 462
As filed with the Securities and Exchange Commission on November 18, 1996
Registration No. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
WILLIAM GREENBERG JR. DESSERTS AND CAFES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
New York 13-3832215
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
533 W. 47th Street
New York, New York 10036
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
-----------------
ANTHONY PISANO CONSULTING AGREEMENT
(FULL TITLE OF THE PLAN)
-----------------
MARILYN WASBOTTEN SERVICES AGREEMENT
(FULL TITLE OF THE PLAN)
-----------------
DEBORAH MACMILLAN SERVICES AGREEMENT
(FULL TITLE OF THE PLAN)
-----------------
GERALD A. ADLER LEGAL SERVICES AGREEMENT
(FULL TITLE OF THE PLAN)
-----------------
Stephen Fass, President
533 W. 47th Street
New York, New York 10036
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(212) 586-7600
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copies to: Samuel F. Ottensoser, Esq.
Baer Marks & Upham LLP
805 Third Avenue
New York, New York 10022
(212) 702-5700
If any of the Securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities being offered only in connection with
Dividend or Interest Reinvestment Plans, check the following line: X
---
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE(5) PRICE(5) REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock, par value $0.001 per
share 25,000 shares(1) $2.88 $72,000 $25
Common Stock, par value $0.001 per
share 10,000 shares(2) $2.88 28,800 $10
Common Stock, par value $0.001 per
share 1,000 shares(3) $2.88 2,880 $ 1
Common Stock, par value $0.001 per
share 10,500 shares(4) $2.88 30,240 $10
</TABLE>
(1) Represents 25,000 shares underlying Option granted to Anthony Pisano
pursuant to the Anthony Pisano Consulting Agreement.
(2) Represents 10,000 shares to be issued to Marilyn Wasbotten pursuant to
the Marilyn Wasbotten Services Agreement.
(3) Represents 1,000 shares issued to Deborah MacMillan pursuant to the
Deborah MacMillan Services Agreement.
(4) Represents 10,500 shares issued to Gerald A. Adler pursuant to the
Gerald A. Adler Legal Services Agreement.
(5) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) on the basis of the average of the bid ask
price as of the November 13, 1996.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In connection with the Registration Statement on Form S-8 (the
"Registration Statement") filed by William Greenberg Jr. Desserts and Cafes,
Inc. (the "Company") with the Securities and Exchange Commission on
November 18, 1996, the following shall constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act of 1933:
ITEM 1. PLAN INFORMATION.
(a) General Plan Information
William Greenberg Jr. Desserts and Cafes, Inc. (the "Registrant" and
sometimes referred to herein as the "Company") and Anthony Pisano ("Pisano")
have entered into the Anthony Pisano Consulting Agreement, (the "Pisano Plan").
Pursuant to the Pisano Plan, Pisano has been engaged to render financial,
marketing, management and administrative advice to the Company to assist the
Company in locating and structuring business combinations, strategic partners
or other business agreements favorable to the Company and its shareholders.
As compensation for the services rendered, the Company has granted Pisano an
Option to purchase 25,000 shares of the Company's common stock, par value
$0.001 per share, (the "Common Stock") at the exercise price of $2.00 per
share. The Option was granted as of July 5, 1996 and expires January 5, 1998.
The Company and Marilyn Wasbotten ("Wasbotten") have entered into the
Marilyn Wasbotten Services Agreement (the "Wasbotten Plan") pursuant to which
the Company issued 10,000 shares of Common Stock to Wasbotten in consideration
for certain consulting and advisory services.
The Company and Deborah MacMillan ("MacMillan") have entered into the
Deborah MacMillan Services Agreement (the "MacMillan Plan") pursuant to which
the Company issued 1,000 shares of Common Stock to MacMillan in consideration
for services rendered to the Company.
The Company and Gerald A. Adler ("Adler" and collectively with Pisano,
Wasbotten and MacMillan, the "Participants") have entered into the Gerald A.
Adler Legal Services Agreement (the "Adler Plan" and collectively with the
Pisano Plan, the Wasbotten Plan and the MacMillan Plan, the "Plans") pursuant to
which the Company issued 10,500 shares of Common Stock to Gerald A. Adler in
consideration for certain legal advisory services rendered to the Company.
The Plans are not subject to any provisions of the Employee Retirement
Income Security Act of 1974.
The name, address and telephone number of the Registrant are as set forth
on the facing page of this Registration Statement. Additional information about
the Plans may be obtained from the Registrant by each respective participant
thereto.
(b) Securities to be Offered
(1) Shares of Common Stock.
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<PAGE>
(2) The common stock of the Registrant is registered under Section 12
of the Exchange Act.
(c) Employees Who May Participate in the Plans
Anthony Pisano, a consultant and financial advisor (an "Employee,
defined by General Instruction A.1(a) of Form S-8) to the Registrant
is the only eligible participant in the Pisano Plan.
Marilyn Wasbotten, a consultant and advisor (an "Employee" defined by
General Instruction A.1(a) of Form S-8) to the Registrant is the only
eligible participant in the Wasbotten Plan.
Deborah MacMillan, a consultant and advisor (an "Employee" defined by
General Instruction A.1(a) of Form S-8) to the Registrant is the only
eligible participant in the MacMillan Plan.
Gerald A. Adler, a consultant and advisor (an "Employee" defined by
General Instruction" A.1(a) of Form S-8) to the Registrant is the only
eligible participant in the Adler Plan.
(d) Purchase of Securities Pursuant to the Plans and Payment for
Securities Offered.
(1)&(2) The Participants under the Plans will be issued shares of
Common Stock for consulting, financial or legal advisory services
rendered.
(3) Contributions by the Participants are not applicable.
(4) No contribution by the Registrant other than the issuance of
shares is applicable.
(5) Reports to the Participants as to the amount and status of their
respective accounts under the Plan will not be made.
(6) The shares issuable pursuant to the Plan will be newly issued
shares of the Registrant.
(e) There are no resale restrictions on the securities offered.
(f) The Plans are not qualified under Section 401(a) of the Internal
Revenue Code and the Participants will recognize ordinary income at the time of
the issuance of their respective number of shares measured by the fair market
value of the Registrant's common stock which is acquired by the Participants.
Additionally, the Participants will have income in the form of capital gains if
their respective number of shares are sold at a price in excess of the exercise
price.
(g) Investment of Funds
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<PAGE>
Not Applicable
(h) Withdrawal from the Plans; Assignment of Interest
(1) The Participants may withdraw from the Plans at any time upon
written notice to the Registrant.
(2) The Participants' interests in the Plans may not be assigned.
(i) Forfeitures and Penalties
There are no provisions for forfeiture or penalties under the Plans
except that termination of the Plans terminates the ability to receive
shares thereunder.
(j) Charges and Deductions and Liens Therefor
There are no charges and deductions that may be made against the
Participants' interest in the Plans.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Registrant shall provide to Participants, without charge, upon written
or oral requests, the documents incorporated herein by reference in Item 3
of Part II of this Registration Statement. The Registrant also shall provide
to Participants, without charge, upon written or oral request, all other
documents required to be delivered to the Participants pursuant to
Rule 428(b). Any and all such requests shall be directed to the Registrant
at 533 W. 47th Street, New York, New York 10036, telephone number 212-586-7600.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by William Greenberg Jr.
Desserts and Cafes, Inc., a New York corporation (the "Registrant"), with the
Securities and Exchange Commission (the "Commission"), are incorporated
herein by reference:
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1995.
(b) The Registrant's Quarterly Reports on Form 10-QSB for each of the
three-month periods ended, respectively, March 31, 1996 and June 30, 1996.
(c) The description of the Registrant's Common Stock, par value $0.001
per share, which is contained in the Company's Registration Statement on Form
8-A filed on September 28, 1995 under Section 12 of the Securities Exchange
Act of 1934, as amended, including any amendment or report filed for the
purpose of updating such description.
In addition, all documents filed subsequent to the date of this
Registration Statement by the Registrant pursuant to Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended, 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 in this Registration
Statement and to be a part hereof from the date of the filing of such
documents. Any statement contained in a document incorporated or deemed to
be incorporated herein by reference 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.
ITEM 4. DESCRIPTION OF SECURITIES.
The securities offered hereby are registered under Section 12 of the
Securities Exchange Act of 1934.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The New York Business Corporation Law ("NYBCL"), in general, allows
corporations to indemnify their officers and directors against any judgment,
fine, settlement or reasonable expenses
II-1
<PAGE>
incurred in any non-derivative civil or criminal action, or against any
settlement or reasonable expenses in any derivative civil action, if the
officer or director acted in good faith and for a purpose that person
reasonably believed to be in, or not opposed to, the best interests of the
corporation. In the case of a criminal action, the officer or director must
have had no reasonable cause to believe that that person's conduct was
unlawful. Partial indemnification is allowed in cases where the officer or
director was partially successful in defeating the claim. The NYBCL
establishes procedures for determining whether the standard of conduct has
been met in the particular case, for timely notification of shareholders, for
prepayment of expenses and for payment pursuant to a court order or as
authorized by disinterested directors or the shareholders. The NYBCL also
provides that it is not exclusive of any other rights to which an officer or
director may be entitled under the certificate of incorporation or by-laws or
pursuant to an agreement, resolution of shareholders or resolution of
directors which are authorized by the certificate of incorporation or
by-laws; provided that no indemnification may be made if a judgment or other
final adjudication adverse to the officer or director establishes that that
person's acts were committed in bad faith or were the result of active and
deliberate dishonesty and were material to the cause of action so
adjudicated, or that that person personally gained in fact a financial profit
or other advantage to which that person was not legally entitled.
The Registrant's Restated Certificate of Incorporation and Amended and
Restated By-Laws provide that the Registrant shall indemnify its officers and
directors to the fullest extent permitted by New York law.
The Registrant has entered into indemnification agreements with each of
its directors and executive officers that provide the maximum indemnity
allowed to directors and executive officers by the NYBCL and the Registrant's
Restated Certificate of Incorporation, subject to certain exceptions, as well
as certain additional procedural protections. In addition, the
indemnification agreements provide generally that the Registrant will advance
expenses incurred by directors and executive officers in any action or
proceeding as to which they may be entitled to indemnification, subject to
certain exceptions.
The Registrant maintains directors and officers liability and company
reimbursement insurance which, among other things (i) provides for payment on
behalf of its officers and directors against loss as defined in the policy
stemming from acts committed by directors and officers in their capacity as
such, and (ii) provides for payment on behalf of the Registrant against such
loss but only when the Registrant shall be required or permitted to indemnify
directors or officers for such loss pursuant to statutory or common law or
pursuant to duly effective certificate of incorporation or by-law provisions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
II-2
<PAGE>
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER
- -------
5.1 Opinion of Baer Marks & Upham LLP.
23.1 Consent of Weinick, Sanders & Co. LLP.
23.2 Consent of Baer Marks & Upham LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (included on signature page of this Registration
Statement).
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:
(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;
(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;
(4) That, for purposes 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 that is incorporated by reference in this 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;
(5) To deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the prospectus and
furnish pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3
under the Securities Exchange Act of 1934; and where interim financial
information required to be presented by Article 3 of Regulation S-X are not
set forth in the prospectus, to deliver or cause to be delivered to each
person to whom the prospectus is sent or given, the latest quarterly report
that is specifically incorporated by reference in the prospectus to provide
such interim financial information; and
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<PAGE>
(6) 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 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 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.
II-4
<PAGE>
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 New York, State of New York, on the
11th day of November, 1996.
WILLIAM GREENBERG JR. DESSERTS
AND CAFES, INC.
By: /s/ STEPHEN FASS
------------------------------------
Stephen Fass
President and Chief Operating Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Stephen Fass his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this registration statement,
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Stephen Fass President, Chief Operating November 11, 1996
- ------------------------- Officer and Director (Principal
Stephen Fass Executive Officer)
/s/ Maria Marfuggi Chairman of the Board, November 11, 1996
- ------------------------- Chief Executive Officer and
Maria Marfuggi Secretary (Principal Financial
Officer)
Director November , 1996
- -------------------------
Richard Fechtor
/s/ Raymond J. McKinstry Director November 8, 1996
- -------------------------
Raymond J. McKinstry
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER
- -------
5.1 Opinion of Baer Marks & Upham LLP.
23.1 Consent of Weinick, Sanders & Co. LLP.
23.2 Consent of Baer Marks & Upham LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (included on signature page of this
Registration Statement).
<PAGE>
Exhibit 5.1
[BAER MARKS & UPHAM LLP LETTERHEAD LOGO]
November 13, 1996
William Greenberg Jr. Desserts
and Cafes, Inc.
533 W. 47th Street
New York, New York 10036
Ladies and Gentlemen:
We have acted as counsel to William Greenberg Jr. Desserts and Cafes,
Inc., a New York corporation (the "Company"), in connection with a
Registration Statement on Form S-8 (the "Registration Statement") being filed
with the Securities and Exchange Commission under the Securities Act of 1933,
as amended, relating to the registration of an aggregate 46,500 shares (the
"Shares") of Common Stock, $0.001 par value per share, issuable to Anthony
Pisano, Marilyn Wasbotten, Deborah MacMillan and Gerald A. Adler, pursuant to
agreements with the Company (the "Agreements").
In connection with the foregoing, we have examined originals or copies,
satisfactory to us, of all such corporate records and of all such agreements,
certificates and other documents as we have deemed relevant and necessary as
a basis for the opinion hereinafter expressed. In such examination, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals and the conformity with the original documents
of all documents submitted to us as copies. As to any facts material to such
opinion, we have, to the extent that relevant facts were not independently
established by us, relied on certificates of public officials and
certificates of officers or other representatives of the Company.
Based upon and subject to the foregoing, we are of the opinion that,
when issued and paid for in accordance with the Agreements, the Shares will
be validly issued, fully paid and, except as otherwise provided in Section
630 of New York's Business Corporation Law, non-assessable.
<PAGE>
November 13, 1996
Page 2
We are members of the bar of the State of New York and are not licensed
or admitted to practice law in any other jurisdiction. Accordingly, we
express no opinion with respect to the laws of any jurisdiction other than
the State of New York and the federal laws of the United States.
We hereby consent to the use of our opinion as herein set forth as an
exhibit to the Registration Statement. In giving such consent, we do not
thereby concede that we are in the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the
rules and regulations thereunder.
Very truly yours,
/s/ Baer Marks & Upham LLP
<PAGE>
Exhibit 23.1
[WEINICK, SANDERS & CO. LLP LETTERHEAD LOGO]
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the registration
statement of William Greenberg Jr. Desserts and Cafes, Inc. of our report
dated March 9, 1996 (except as to a portion of Note 9, as to which the date
is April 15, 1996) appearing in The Annual Report on Form 10-KSB of William
Greenberg Jr. Desserts and Cafes, Inc. for the fiscal year ended December 31,
1995.
/s/ WEINICK, SANDERS & CO. LLP
------------------------------
WEINICK, SANDERS & Co. LLP
Certified Public Accountants
New York, New York
November 14, 1996
