SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PEABODYS COFFEE, INC.
(Exact name of registrant as specified in its charter)
NEVADA 98-0209293
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3845 ATHERTON ROAD, SUITE 9
ROCKLIN, CA 95765
(Address of Principal Executive Office) (Zip Code)
CONSULTING AGREEMENTS
(Full title of the plans)
TODD TKACHUK
3845 ATHERTON ROAD, SUITE 9
ROCKLIN, CA 95765
(916) 632-6090
(Name, address and telephone number, including area code, of agent for service)
Copy to:
WILLIAM F. WEBSTER, ESQ.
801 K STREET, SUITE 900
SACRAMENTO, CA 95814
(916) 321-4427
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to to be Offering Price Aggregate Registration
Be Registered Registered Per Share Offering Price Fee
- ------------- ---------- ---------- -------------- ---
<S> <C> <C> <C> <C>
Consulting Agreement--Heeres 50,000 Shares $ 0.50 (1) $ 25,000.00 $ 6.60
Common Stock, $0.001 par value
Consulting Agreement--Lyman 75,000 Shares $ 0.50 (1) $ 37,500.00 $ 9.90
Common Stock, $0.001 par value
Consulting Agreement--Omielan 40,000 Shares $ 0.50 (1) $ 20,000.00 $ 5.28
Common Stock, $0.001 par value
Consulting Agreement--Ward 100,000 Shares $ 0.50 (1) $ 50,000.00 $ 13.20
Common Stock, $0.001 par value
Consulting Agreement--Ogrim 150,000 Shares $ 1.51 (2) $ 226,500.00 $ 59.80
Common Stock, $0.001 par value
TOTAL REGISTRATION FEE $ 94.78
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) by taking the exercise price per share
as to outstanding but unexercised options under the agreement.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c), based on the average of the bid and
asked price, as reported by the OTC Bulletin Board, on April 25, 2000.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), by Peabodys Coffee, Inc. (the "Company"), are hereby
incorporated by reference in this Registration Statement except as superseded or
modified herein:
the Company's effective Registration Statement on Form 10-SB, originally
filed with the Commission under the Exchange Act on December 21, 1999,
including any amendments thereto ("Form 10-SB"); and
the description of the Company's capital stock which is contained in the
Form 10-SB.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the time a post-effective amendment which
indicates that the securities offered hereby 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.
Any statement contained in any document incorporated or deemed to be
incorporated by reference herein 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. Any such statement so modified or superseded shall not be deemed,
except as modified or superseded, to constitute a part of this Registration
Statement.
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 78.751 of the Nevada General Corporation Law allows a corporation
to indemnify any person who was or is threatened to be made a party to any
threatened, pending, or completed action, suit, or proceeding, by reason of the
fact that he or she is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee, or agent of any corporation, partnership, joint
venture, trust, or other enterprise. The Company's bylaws contain no provisions
regarding indemnification of directors.
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<PAGE>
Nevada law permits the corporation to advance expenses in connection with
defending any such proceedings, provided that the indemnitee undertakes to repay
any such advances if it is later determined that such person was not entitled to
be indemnified by the corporation. The Company's bylaws contain no provisions
regarding the advance of such funds.
Insofar as indemnification for liabilities arising under the Securities Act
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 such act, and is
therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable
ITEM 8. EXHIBITS.
3.1 Articles of Incorporation of the Company, as amended*
5.1 Opinion re legality of Webster Law Firm
23.1 Consent of Nicholson & Olson LLP, Independent Auditor
23.2 Consent of Webster Law Firm (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
*Incorporated by reference to the Company's Registration Statement on Form
10-SB, as amended, originally filed with the Commission under the Exchange Act
on December 21, 1999.
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 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, 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 hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section
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<PAGE>
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to 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 Securities
Act 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 pubic 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 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 the Securities Act and will be governed by the final
adjudication of such issue.
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<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 Rocklin, State of California, on April 30, 2000.
PEABODYS COFFEE, INC.
By: /S/ TODD N. TKACHUK
----------------------------
Todd N. Tkachuk, President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Todd N. Tkachuk his attorney-in-fact and agent, with
full power of substitution, for him and in his name, place and stead, in any and
all capacities, to sign any or all 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 and 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 date indicated:
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/S/ TODD N. TKACHUK President, Chief Financial Officer, April 30, 2000
- ------------------------ and Director (Principal Executive
Todd N. Tkachuk Officer and Principal Financial Officer)
/S/ ROLF MANDICH Controller April 30, 2000
- ------------------------
Rolf Mandich
/S/ ROMAN KUJATH Director April 30, 2000
- ------------------------
Roman Kujath
/S/ BARRY GIBBONS Director April 30, 2000
- ------------------------
Barry Gibbons
</TABLE>
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
3.1 Articles of Incorporation of the Company, as amended*
5.1 Opinion re legality of Webster Law Firm
23.1 Consent of Nicholson & Olson LLP, Independent Auditor
23.2 Consent of Webster Law Firm (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
*Incorporated by reference to the Company's Registration Statement on Form
10-SB, as amended, originally filed with the Commission under the Exchange Act
on December 21, 1999.
WEBSTER LAW FIRM
- --------------------------------------------------------------------------------
801 K Street, Suite 900
WILLIAM F. WEBSTER Sacramento, California 95814
Tel: (916) 321-4427
Fax: (916) 321-4428
Email: [email protected]
May 1, 2000
Peabodys Coffee, Inc.
3845 Atherton Road, Suite 9
Rocklin, CA 95765
Re: Registration Statement on Form S-8
Dear Sirs:
You have requested our opinion with respect to certain matters in
connection with the filing by Peabodys Coffee, Inc. (the "Company") of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission, covering the registration of 415,000 shares
of the Company's Common Stock, par value .001 per share (the "Shares"), for
issuance pursuant to the following consulting agreements:
Consulting Agreement--Heeres 50,000 Shares
Consulting Agreement--Lyman 75,000 Shares
Consulting Agreement--Omielan 40,000 Shares
Consulting Agreement--Ward 100,000 Shares
Consulting Agreement--Ogrim 150,000 Shares
--------------
TOTAL 415,000 Shares
In connection with this opinion, we have examined and relied upon the
Registration Statement, the Company's Amended and Restated Articles of
Incorporation and Amended and Restated Bylaws, the Consulting Agreements, and
the originals or copies certified to our satisfaction of such records,
documents, certificates, memoranda and other instruments as in our judgment are
necessary or appropriate to enable us to render the opinion expressed below. We
have assumed the genuineness and authenticity of all documents submitted to us
as originals, the conformity to originals of all documents submitted to us as
copies thereof and the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness thereof. Further,
as legal counsel for the Company, we have examined the proceedings taken and are
familiar with the proceedings proposed to be taken by you in connection with the
issuance and sale of the Shares pursuant to the Stock Option Plans and the
Consulting Agreement.
<PAGE>
WEBSTER LAW FIRM
- --------------------------------------------------------------------------------
Peabodys Coffee, Inc.
May 1, 2000
Page 2
On the basis of the foregoing, and in reliance thereon, we are of the
opinion that the Shares, when sold and issued in accordance with the
Registration Statement and the Consulting Agreements, will be validly issued,
fully paid, and nonassessable shares of Common Stock of the Company.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
WEBSTER LAW FIRM
/S/ WILLIAM F. WEBSTER
- -------------------------
William F. Webster
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
on Form S-8 of Peabodys Coffee, Inc. (the "Company") of our report, dated
December 19, 1999, relating to the financial statements which appear in the Form
10-SB, as amended, originally filed by the Company on December 21, 1999.
We consent to the incorporation by reference in the Registration Statement
of the aforementioned report and to the use of our name as it appears therein.
/S/ NICHOLSON & OLSON LLP
- -----------------------------------
Nicholson & Olson LLP
Roseville, California
May 1, 2000
