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To Become Effective Upon Filing Pursuant to Rule 462
As filed with the Securities and Exchange Commission on March 31, 1996 Registration No. 333-
</TABLE>
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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 Identification No.)
incorporation or organization)
533 W. 47th Street 10036
New York, New York (Zip Code)
(Address of Principal Executive Offices)
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BAER MARKS & UPHAM LLP SERVICES AGREEMENT
(Full title of the Plan)
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RICKEL & CO. SERVICES AGREEMENT
(Full title of the Plan)
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Stephen Fass, Executive Vice 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
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<CAPTION>
PROPOSED
TITLE OF MAXIMUM PROPOSED MAXIMUM
SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE(3) PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, par
value $0.001 per share 17,000 shares(1) $2.50 $42,500 $12.88
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Common Stock, par
value $0.001 per share 17,000 shares(2) $2.50 $42,500 $12.88
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</TABLE>
(1) Represents 17,000 shares to be issued to Baer Marks & Upham LLP
pursuant to the Baer Marks & Upham LLP Services Agreement.
(2) Represents 17,000 to be issuable to Rickel & Co. pursuant to the
Rickel & Co. Services Agreement.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) on the basis of the average of the high and
low prices as of March 28, 1997.
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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 the date
indicated on the cover page hereof, 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
(1) William Greenberg Jr. Desserts and Cafes, Inc. (the
"Registrant" and sometimes referred to herein as the
"Company") and Baer Marks & Upham LLP have entered into the
Baer Marks & Upham LLP Services Agreement (the "BMU Plan").
The nature and purposes of the Plan is to compensate Baer
Marks & Upham LLP for advice rendered to the registrant.
(2) The Company and Rickel & Co. (Beer Marks & Upham and
Rickel & Co. are collectively referred to as the
"Participants"), have entered into the Rickel & Co. Services
Agreement (the "Rickel Plan" and collectively with the BMU
Plan, the "Plans"). The nature and purpose of the Rickel Plan
is to compensate Rickel & Co. for investment banking
services.
(3) The Plans are not subject to any provisions of the
Employee Retirement Income Security Act of 1974.
(4) 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 Plan may be
obtained from the Registrant by the participant.
(b) Securities to be Offered
(1) Shares of Common Stock.
(2) The common stock of the Registrant is registered under
Section 12 of the Exchange Act.
(c) Employees Who May Participate in the Plan
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Baer Marks & Upham LLP, a consultant or advisor (an
"employee" defined by General Instruction A.l(a) of Form S-8)
to the Registrant is the only eligible participant (the
"Participant") in the Plan.
Rickel & Co., a consultant or advisor (an "employee" defined
by General Instruction A.1(a) OF FORM S-8) to The Registrant
is the only eligible participant in the Rickel Plan.
(d) Purchase of Securities Pursuant to the Plan and Payment for
Securities Offered.
(1)&(2) The Participant under the Plan will be issued shares
of Common Stock for advisory services rendered.
(3) Contributions by the Participant are not applicable.
(4) No contribution by the Registrant other than the issuance
of shares is applicable.
(5) Reports to the Participant as to the amount and
status of its account 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 Participant will recognize
ordinary income at the time of the issuance of their
respective shares measured by the fair market value of the
Registrant's common stock which is acquired by the
participants. Additionally, the Participant's will have
income in the form of capital gains if their respective
shares are sold at a price in excess of the exercise price.
(g) Investment of Funds
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.
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(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 Participant's interest in the Plan.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Registrant shall provide to the 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 the 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.
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, June 30, 1996 and
September 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
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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.
Baer Marks & Upham LLP, counsel to the Registrant, whose opinion is
attached as Exhibit 5.1 hereto is the Participant in the Plan and may receive up
to 17,000 shares thereunder.
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 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
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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.
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).
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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:
(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 SX 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
(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.
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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,
hereunto duly authorized, in the City of New York, State of New York, on the
28th day of March, 1997.
WILLIAM GREENBERG JR. DESSERTS AND CAFES, INC.
By: /s/ PHILIP GRABOW
----------------------------------------------
Philip Grabow
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Philip Grabow 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
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<S> <C> <C>
/s/ Philip Grabow President and Chief Executive Officer, March 28, 1997
- --------------------- Director (Principal Executive Officer)
Philip Grabow
/s/ Stephen Fass Executive Vice President, Chief Operating March 28, 1997
- --------------------- Officer and Director
Stephen Fass
/s/ Maria Marfuggi Chairman of the Board, Executive Vice March 28, 1997
- --------------------- President and Secretary (Principal
Maria Marfuggi Financial Officer)
</TABLE>
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FORM S-8 REGISTRATION STATEMENT
ITEM 8
EXHIBITS
WILLIAM GREENBERG JR. DESSERTS AND CAFES, INC.
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EXHIBIT INDEX
Exhibit
Number
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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>
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[BAER MARKS & UPHAM LLP LETTERHEAD LOGO]
March 28, 1997
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 offering of 17,000 shares (the "Shares") of common stock, $0.001
par value per share (the "Common Stock"), issuable to Baer Marks & Upham LLP
pursuant to the Baer Marks & Upham LLP Services Agreement (the "BMU Plan") and
17,000 Shares issuable to Rickel & Co. pursuant to the Rickel & Co. Services
Agreement (the "Rickel Plan" and collectively with the BMU Plan the "Plan").
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 Plan, 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 Shares of Common Stock.
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
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[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. on Form S-8 filed
March 28, 1997 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.
Yours truly,
/s/ Weinick. Sanders & Co. LLP
------------------------------
WEINICK, SANDERS & CO. LLP
Certified Public Accountants
New York, New York
March 28, 1997
