As filed with the Securities and Exchange Commission on May 4, 2001.
Registration No. 333-_______
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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SUPREMA SPECIALTIES, INC.
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(Exact name of registrant as specified in its charter)
New York 11-2662625
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State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
510 East 35th Street, P.O. Box 280, Paterson, New Jersey 07543-0280
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(Address of principal executive offices) (Zip Code)
1998 Stock Option Plan and 1999 Stock Incentive Plan
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(Full title of the plan)
Mr. Mark Cocchiola, President and Chief Executive Officer
Suprema Specialties, Inc.
510 East 35th Street, P.O. Box 280, Paterson, New Jersey 07543-0280
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(Name and address of agent for service)
(973) 684-2900
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(Telephone number, including area code, of agent for service)
Copy to:
Ethan Seer, Esq.
Blank Rome Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
Telephone: (212) 885-5000
Facsimile: (212) 885-5001
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities Amount to be Price Per Offering Registration
to be Registered Registered Share(1) Price(1) Fee
---------------- ---------- -------- -------- ---
<S> <C> <C> <C> <C>
Common Stock, 1,000,000 $7.50 7,500,000 $1,875.00
par value $.01 shares
per share (2)(3)
</TABLE>
(1) Estimated solely for the purposes of calculating the registration fee
and based (a) as to the 499,500 shares of Common Stock that may be issued upon
the exercise of options previously granted under the registrant's 1998 Stock
Option Plan ("98 Plan") and the 352,000 shares of Common Stock that may be
issued upon the exercise of options already granted under the registrant's 1999
Stock Incentive Plan ("99 Plan"), upon the average price at which such options
may be exercised and (b) as to the remaining 500 shares of Common Stock that may
be issued upon exercise of options reserved for issuance under the 98 Plan and
the 148,000 shares of Common Stock that may be issued upon exercise of options
or the grant of other stock-based awards under the 99 Plan, on the basis of the
average of the high and low prices for the Common Stock as quoted on NASDAQ on
April 26, 2001.
(2) Pursuant to Rule 416, there are also being registered additional shares
of Common Stock as may become issuable pursuant to the anti-dilution provisions
of the 98 Plan and the 99 Plan.
(3) Represents 500,000 and 500,000 shares, respectively, that may be issued
under the 98 Plan and the 99 Plan, respectively.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee
Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 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 previously filed by the registrant with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement:
(1) The registrant's Annual Report on Form 10-K for the fiscal year ended
June 30, 2000;
(2) Form 10-K/A, Amendment No. 1 to the registrant's Annual Report on Form
10-K for the fiscal year ended June 30, 2000;
(3) The registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2000;
(4) The registrant's Quarterly Report on Form 10-Q for the quarter ended
December 31, 2000;
(5) The description of the registrant's common stock, par value $.001 per
share (the "Common Stock"), contained in the registrant's Registration
Statements on Form 8-A dated May 3, 1991 as filed with the Commission, and any
amendments thereto; and
(6) All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 respective date of filing of such documents. Any
statement contained in a document incorporated by reference herein is modified
or superseded for all purposes to the extent that a statement contained in this
Registration Statement or in any
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other subsequently filed document which is incorporated by reference modifies or
replaces such statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the Common Stock offered hereby will be passed upon for the
registrant by the law firm of Blank Rome Tenzer Greenblatt LLP.
Item 6. Indemnification of Directors and Officers.
Section 722 of the New York Business Corporation Law which governs the
indemnification of directors, officers, employees and agents of a corporation is
hereby incorporated herein by reference. Section 402 of the New York Business
Corporation Law which provides that a corporation's certificate of incorporation
may provide that a director or officer shall have limited liability to the
corporation or to its shareholders, with certain exceptions, is hereby
incorporated herein by reference. Reference is made to Articles 7 and 8 of the
registrant's Certificate of Incorporation, as amended, which provides for
indemnification and limitations on liability in the manner and to the fullest
extent permitted by New York law. The general effect of these provisions may
make it more difficult for shareholders to obtain monetary damages in connection
with suits that seek redress for actions taken by directors.
The employment agreements between the registrant and its Chief Executive
Officer and its Executive Vice President provide for the registrant to indemnify
such officers to the fullest extent permitted by the laws of the State of New
York.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling Suprema pursuant
to the foregoing provisions, the registrant has been informed that in the
opinion of the Securities and Exchange Commission, such indemnification
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is against public policy as expressed in the Securities Act and is therefore
unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
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5.1 Opinion of Blank Rome Tenzer
Greenblatt LLP
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Blank Rome Tenzer
Greenblatt LLP (included in
Exhibit 5.1)
24.1 Powers of Attorney (included
on the signature page of this
Registration Statement)
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:
(2) 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.
(3) 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
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offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(4) 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 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 (and where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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 Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions referred to in Item 6 of
Part II of this Registration Statement, 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 Securities Act of
1933 ("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, thereunto duly
authorized, in the City of Paterson, State of New Jersey, on this 30th day of
April 2001.
SUPREMA SPECIALTIES, INC.
(Registrant)
By: /s/ Mark Cocchiola
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Mark Cocchiola, Chief Executive
Officer and President
Each person whose individual signature appears below hereby authorizes each
of Mark Cocchiola and Paul Lauriero or either of them as his or her true and
lawful attorney-in-fact with full power of substitution to execute in the name
and on behalf of each person, individually and in each capacity stated below,
and to file, any and all post-effective amendments to this Registration
Statement.
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 date indicated.
Signature Title Date
--------- ----- ----
/s/Mark Cocchiola Chairman of the Board, April 30, 2001
----------------------- Chief Executive Officer
Mark Cocchiola and President
(Principal Executive
Officer)
/s/ Paul Lauriero Executive Vice April 30, 2001
----------------------- President and Director
Paul Lauriero
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/s/ Steven Venechanos Chief Financial Officer April , 2001
----------------------- (Principal Financial
Steven Venechanos and Accounting Officer)
/s/ Marco Cocchiola Director April 30, 2001
-----------------------
Marco Cocchiola
/s/ Rudolph Acosta, Jr. Director April 30, 2001
-----------------------
Dr. Rudolph Acosta, Jr.
/s/ Paul DeSocio Director April 30, 2001
-----------------------
Paul DeSocio
/s/ Barry S. Rutcofsky Director April 30, 2001
-----------------------
Barry S. Rutcofsky
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Exhibit Index
Exhibit No. Description
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Page
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5.1 Opinion of Blank Rome Tenzer
Greenblatt LLP
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Blank Rome Tenzer Greenblatt
LLP (included in Exhibit 5.1)
24.1 Powers of Attorney (included
on the signature page of the
Registration Statement)
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[LETTERHEAD OF BLANK ROME TENZER GREENBLATT LLP]
The Chrysler Building
405 Lexington Avenue
New York, New York 10174-0208
Phone: 212.885.5000
Fax: 212.885.5001
May 2, 2001
Suprema Specialties, Inc.
510 East 35th Street
P.O. Box 280
Paterson, New Jersey 07543-0280
Gentlemen:
You have requested our opinion with respect to the offering by you, Suprema
Specialties, Inc., a New York corporation (the "Company"), of (i) up to 500,000
shares of the Company's common stock, $.01 par value, (the "98 Plan Shares")
issuable upon exercise of options granted or available for grant under the
Company's 1998 Stock Option Plan (the "98 Plan") and (ii) up to 500,000 shares
of the Company's common stock (the "99 Plan Shares") issuable upon exercise of
options granted or available for grant under the Company's 1999 Stock Incentive
Plan (the "99 Plan") pursuant to a registration statement (the "Registration
Statement") on Form S-8 to be filed with the Securities and Exchange Commission.
We have examined and relied upon originals, or copies certified or
otherwise identified to our satisfaction, of such documents and corporate and
public records as we deemed necessary as a basis for the opinion hereinafter
expressed. With respect to such examination, we have assumed the genuineness of
all signatures appearing on all documents presented to us as originals, and the
conformity to the originals of all documents presented to us as conformed or
reproduced copies. Where factual matters relevant to such opinion were not
independently established, we have relied upon representations of executive
officers of the Company.
Based upon the foregoing, it is our opinion that the 98 Plan Shares and the
99 Plan Shares have been duly and validly authorized and, when sold, paid for
and issued as contemplated by the 98 Plan or the 99 Plan, as the case may be,
will be validly issued, fully paid and nonassessable.
BLANK ROME TENZER GREENBLATT LLP
Suprema Specialties, Inc.
May 2, 2001
Page 2
We hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement, and to the use of our name as your counsel in connection
with the Registration Statement and in the Prospectus forming a part thereof. In
giving this consent, we do not thereby concede that we come within the
categories of persons whose consent is required by the Securities Act of 1933 or
the General Rules and Regulations promulgated thereunder.
Very truly yours,
/s/ Blank Rome Tenzer Greenblatt LLP
BLANK ROME TENZER GREENBLATT LLP
Exhibit 23.1
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
Suprema Specialties, Inc.
Paterson, New Jersey
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated September
18, 2000, relating to the consolidated financial statements and schedules of
Suprema Specialties, Inc. appearing in the Company's Annual Report on Form 10-K
for the year ended June 30, 2000.
/s/ BDO Seidman, LLP
BDO Seidman, LLP
Woodbridge, New Jersey
May 2, 2001