AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 15, 1997
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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SUN CITY INDUSTRIES, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 59-0950777
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
5545 N.W. 35TH AVENUE
FORT LAUDERDALE, FLORIDA 33309
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(Address of Principal Executive Offices)
SUN CITY INDUSTRIES, INC. 1997 STOCK OPTION PLAN
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(Full title of the Plan)
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MALVIN AVCHEN
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
5545 N.W. 35TH AVENUE
FORT LAUDERDALE, FLORIDA 33309
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(Name and address of agent for service)
(954) 730-3333
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(Telephone number, including area code, of agent for service)
Copy to:
JONATHAN H. WARNER ESQ
BAKER & MCKENZIE
701 BRICKELL AVE
MIAMI FL 33131
(305) 789-8900
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED OFFERING PRICE(1) REGISTRATION FEE
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<S> <C> <C> <C>
COMMON STOCK,
$.10 PAR VALUE....... 2,500,000 SHARES $1,959,297 $578.00
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee which
was computed in accordance with Rule 457(h) on the basis of (i) the actual
exercise prices of options previously granted under the Registrant's 1997
Stock Option Plan of (A) 700,000 shares at $1 per share and (B) 429,750
shares at $.9375 per share and (ii) for 1,370,250 shares an assumed price
of $.625 per share (based on the Registrant's closing stock price on
the American Stock Exchange on December 11, 1997) for each of the
remaining shares eligible for options to be granted under said Stock
Option Plan.
<PAGE>
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this Registration
Statement the following documents or portions thereof as indicated:
(a) the Registrant's Annual Report on Form 10-K for the fiscal
year ended February 1, 1997, as amended;
(b) all other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of
1934 (the "Exchange Act") since February 1, 1997; and
(c) the descriptions of the Registrant's Common Stock and
related matters set forth under the captions "Price Range
of Common Stock" and "Description of Sun City Capital
Stock" in the Registrant's definitive Proxy Statement,
dated November 7, 1997, filed under the Exchange Act.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant has authority under Section 145 of the Delaware General
Corporation Law to indemnify its directors and officers to the extent provided
in such statute. Section 145 of the Delaware General Corporation Law provides
that a corporation may indemnify officers and directors, subject to certain
conditions and limitations, against certain liabilities and expenses in
connection with claims against them in their capacity as officers and directors,
if such person acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation, and with respect to
criminal proceedings if he had no reasonable cause to believe his conduct was
unlawful.
The Registrant's Certificate of Incorporation provides that the
Registrant shall under certain circumstances indemnify its directors and
officers against expenses (including attorneys' fees) judgments, fines, and
amounts paid in settlement incurred by such persons in connection with an
action, suit, or proceeding to which he or she has been or is threatened to be
made a party by reason of the fact that he or she is or was a director or
officer of the Registrant. The Registrant's Certificate of Incorporation also
permits the Registrant to purchase insurance on behalf of directors and officers
against liabilities asserted or expense incurred in his or her capacity as such
regardless of whether the Registrant would have the power to indemnify him or
her against such liability or expense.
The Registrant's Board of Directors has adopted a resolution proposing
an amendment, subject to stockholders' approval, of the Registrant's Certificate
of Incorporation to add a new Article thereto which would eliminate directors'
liability to the full extent permitted by applicable law, including Section
102(b)(7) of the Delaware General Corporation Law. The proposed amendment, if
approved at the Registrant's 1997 Annual Meeting of Stockholders, will read as
follows:
To the full extent permitted by the General Corporation Law of the
State of Delaware or any other applicable laws presently or hereafter
in effect, no director of the corporation shall be personally liable to
the corporation or its stockholders for or with respect to any acts or
omissions or breach of fiduciary duty in the performance of his or her
duties as a director of the corporation. Any repeal or modification of
this Article shall not adversely affect any right or protection of a
director of the corporation existing hereunder prior to such repeal or
modification.
The Registrant anticipates it will enter into indemnification
agreements with its directors and officers to generally indemnify them to the
fullest extent permitted by law.
II - 1
<PAGE>
At present, there is no pending litigation or proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought, nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
See "Exhibit Index" on page II-4 below.
ITEM 9. UNDERTAKINGS
(a) 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 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;
(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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) shall 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 registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 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.
(c) Insofar as indemnification for liabilities arising under the Act
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 - 2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Act, 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 Ft.
Lauderdale, State of Florida on December 12, 1997.
SUN CITY INDUSTRIES, INC.
By: /S/ MALVIN AVCHEN
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Malvin Avchen, Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints each of Malvin Avchen, Harvey
Oxenberg and David Fleishman, respectively, his true and lawful
attorney-in-fact, each acting alone, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments, including any post-effective
amendments, to this Registration Statement, and to file the same, with exhibits
thereto, and other documents to be filed in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-fact or his substitute, acting alone, may lawfully do or cause
to be done by virtue hereof.
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<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ MALVIN AVCHEN Chairman of the Board and Chief December 12, 1997
- ------------------------------------- Executive Officer (principal executive
Malvin Avchen officer)
/s/ SYED JAFRI Treasurer and Controller (principal December 12, 1997
- ------------------------------------- financial officer and principal
Syed Jafri accounting officer)
/s/ SAUL ZALKA President, Chief Operating Officer and December 12, 1997
- ------------------------------------- Director
Saul Zalka
/s/ CHARLES OSTROW Director December 12, 1997
- -------------------------------------
Charles Ostrow
</TABLE>
II-3
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1 Registrant's 1997 Stock Option Plan (1)
5.1 Opinion of Baker & McKenzie
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Baker & McKenzie (contained in its opinion filed
as Exhibit 5.1 hereto)
24.1 Power of Attorney is included in the Signatures
section of this Registration Statement
- ----------------------------
(1) Incorporated herein by reference to Exhibit C of the Registrant's Proxy
Statement dated November 7, 1996.
EXHIBIT 5.1
December 12, 1997
Sun City Industries
5545 N.W. 35th Avenue
Ft. Lauderdale, Florida 33309
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
On the date hereof, Sun City Industries, Inc., a Delaware corporation
(the "Company"), sent for filing with the Securities and Exchange Commission a
Registration Statement on Form S-8 (the "Registration Statement"), under the
Securities Act of 1933, as amended (the "Act"). The Registration Statement
relates to the offering and sale by the Company of up to 2,500,000 shares of the
Company's Common Stock, par value $.10 per share (the "Common Stock"), pursuant
to stock options ("Options") granted or to be granted under the Company's 1997
Stock Option Plan, as amended (the "Plan"). Reference is made the Company's
definitive Proxy Statement dated November 7, 1997 (the "Proxy Statement")
relating to certain matters including, among other things, proposed amendments
to the Company's Certificate of Incorporation to increase the number of
authorized shares of Common Stock to 75,000,000 and decrease the par value per
share to $.01 (the "Certificate Amendments"). We are counsel to the Company and
have been requested by the Company to provide this letter in connection with the
filing of the Registration Statement.
In connection therewith, we have examined and relied upon the
original or a copy, certified to our satisfaction, of (i) the Certificate of
Incorporation and Bylaws of the Company; (ii) the Proxy Statement (including the
proposed Certificate Amendments therein), (iii) records of corporate proceedings
of the Company, authorizing the Plan and the Certificate Amendments and related
matters; (iv) the Registration Statement and exhibits thereto; and (v) such
other documents and instruments as we have deemed necessary for the expression
of the opinions herein contained. In making the foregoing examinations, we have
assumed the genuineness of all signatures and the authenticity of all documents
submitted to us as originals, and the conformity to original documents of all
documents submitted to us as certified or photostatic copies. As to various
questions of fact material to this opinion, we have relied, to the extent we
deem reasonably appropriate, upon representations or certificates of officers or
directors of the Company and upon documents, records and instruments furnished
to us by the Company, without independently checking or verifying the accuracy
of such documents, records and instruments.
Based upon the foregoing examination, and assuming that the
Certificate Amendments are approved by the Company's stockholders and thereafter
filed with the State of Delaware and take effect in accordance with applicable
law, and further assuming that the Company maintains an adequate number of
authorized and unissued shares of Common Stock available for issuance to those
persons who exercise Options granted under the Plan and that the consideration
for shares of Common Stock issued pursuant to such Options is actually received
by the Company as provided in the Plan, the shares of Common Stock issued after
the Certificate Amendments take effect pursuant to the exercise of Options
granted under and in accordance with the terms of the Plan will be duly and
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the Act
or the rules and regulations of the Commission thereunder.
Sincerely,
/s/ BAKER & MCKENZIE
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BAKER & MCKENZIE
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement of
Sun City Industries, Inc. on Form S-8 of our report dated May 16, 1997,
appearing in the Annual Report on Form 10-K of Sun City Industries, Inc. for the
year ended February 1, 1997.
DELOITTE & TOUCHE LLP
Fort Lauderdale, Florida
December 12, 1997
