<PAGE>
As filed with the Securities and Exchange Commission on August 9, 1996
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
CENTRAL GARDEN & PET COMPANY
(Exact name of issuer as specified in its charter)
Delaware 68-0275553
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
3697 Mt. Diablo Boulevard, Lafayette, California 94549
(Address of principal executive offices) (Zip Code)
CENTRAL GARDEN & PET COMPANY
NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
William E. Brown
Central Garden & Pet Company
3697 Mt. Diablo Boulevard, Lafayette, California 94549
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (510) 283-4573
Copy to:
John F. Seegal, Esq.
Orrick, Herrington & Sutcliffe
400 Sansome Street
San Francisco, California 94111
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share* Price* Fee*
- ---------------- -------------- ---------- ---------- ------------
<S> <C> <C> <C> <C>
Common Stock, 100,000 shares $23.4375 $2,343,750 $809.00
and Options to
Purchase Common
Stock
=======================================================================
</TABLE>
* Estimated solely for the purpose of calculating the registration fee on
the basis of $23.4375 per share, the average of the high and low prices
for the Common Stock on August 6, 1996 as reported by NASDAQ.
1
<PAGE>
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated by reference in this registration
statement: (i) the latest annual report of Central Garden & Pet Company (the
"Company") filed pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"); (ii) all reports filed by the
Company pursuant to Sections 13(a) or 15(d) of the Exchange Act since the end of
the fiscal year covered by the Company's latest annual report; and (iii) the
description of the Company's common stock set forth in the Company's
Registration Statement on Form 8-A relating thereto, including any amendment or
report filed for the purpose of updating such description. All documents filed
by the Company after the date of this registration statement pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment (that indicates all securities offered have been sold
or 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 filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation provides that its directors will not
be liable to the Company or its stockholders for monetary damages for breaches
of fiduciary duty, to the fullest extent permitted by law. This provision is
intended to allow the Company's directors the benefit of the Delaware General
Corporation law which provides that directors of Delaware corporations may be
relieved of monetary liability for breaches of their fiduciary duty of care
except under certain circumstances, including breach of the duty of loyalty,
acts or omissions not in good faith or involving intentional misconduct or known
violation of law or any transaction from which the director derived an improper
personal benefit.
The Company has entered into separate indemnification agreements with each of
the directors and executive officers, whereby the Company agrees, among other
things, to indemnify them against certain liabilities that may arise by reason
of their status or service as directors or officers, to advance their expenses
2
<PAGE>
incurred as a result of any proceeding against them as to which they could be
indemnified, and to obtain directors' and officers' insurance if available at
reasonable terms.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
4.1 Central Garden & Pet Company Nonemployee Director Stock Option Plan.
4.2 Form of Nonqualified Stock Option Agreement.
5.1 Opinion of Orrick, Herrington & Sutcliffe.
23.1 Independent Auditors' Consent.
23.2 Consent of Orrick, Herrington & Sutcliffe is included in Exhibit 5.1.
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 Securities Act of 1933;
(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) do not
apply if the registration statement is on Form S-3 or Form S-8 and 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 Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
3
<PAGE>
(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.
(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 the
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, 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.
4
<PAGE>
Signatures
THE REGISTRANT
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 Lafayette, State of California on the 2nd of August,
1996.
Central Garden & Pet Company
(Registrant)
/s/ William E. Brown
----------------------------
William E. Brown
Chairman of the Board
and Chief Executive Officer
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
dated indicated.
Signature Title Date
Principal Executive Officer:
/s/ William E. Brown
----------------------------
William E. Brown Chairman of the August 2, 1996
Board and Chief
Executive Officer
Principal Financial Officer and
Accounting Officer:
/s/ Robert B. Jones
----------------------------
Robert B. Jones Vice President and August 2, 1996
Chief Financial
Officer
5
<PAGE>
Directors:
/s/ William E. Brown
---------------------------- Director August 2, 1996
William E. Brown
/s/ Lee D. Hines, Jr.
---------------------------- Director August 2, 1996
Lee D. Hines, Jr.
---------------------------- Director August , 1996
Daniel Hogan
/s/ Glenn W. Novotny
----------------------------- Director August 2, 1996
Glenn W. Novotny
A majority of the members of the Board of Directors.
6
<PAGE>
EXHIBIT INDEX
4.1 Central Garden & Pet Company Nonemployee Director Stock Option Plan.
4.2 Form of Nonqualified Stock Option Agreement.
5.1 Opinion of Orrick, Herrington & Sutcliffe.
23.1 Independent Auditors' Consent.
23.2 Consent of Orrick, Herrington & Sutcliffe is included in Exhibit 5.1.
<PAGE>
EXHIBIT 4.1
CENTRAL GARDEN & PET COMPANY
NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
(Effective February 20, 1996)
-----------------------------
SECTION 1
ESTABLISHMENT, PURPOSE AND DURATION
-----------------------------------
1.1 Establishment. Central Garden & Pet Company, a Delaware corporation
-------------
(the "Company"), hereby establishes the "Central Garden & Pet Company
Nonemployee Director Stock Option Plan" (the "Plan"), for the benefit of
nonemployee members of the Board of Directors of the Company ("Nonemployee
Directors"), in order to compensate such Nonemployee Directors for their past
services by awarding them stock options under the Plan ("Options").
1.2 Purpose of the Plan. The purpose of the Plan is to promote the
-------------------
success, and enhance the value, of the Company, by attracting, retaining and
motivating Nonemployee Directors of outstanding competence. The Plan also is
designed to align the interests of Nonemployee Directors with the interests of
the stockholders of the Company.
1.3 Effective Date. The Plan is effective as of February 20, 1996,
--------------
subject to the approval by an affirmative vote, at the next meeting of the
stockholders of the Company, or any adjournment thereof, of the holders of a
majority of the outstanding shares of the common stock of the Company
("Shares"), present in person or by proxy and entitled to vote at such meeting.
As provided in the Plan, Options will be granted prior to the receipt of such
vote, but such grants shall be null and void if such vote is not in fact
received.
1.4 Duration of the Plan. The Plan shall commence on the date specified
--------------------
in Section 1.3, and subject to the right of the Board of Directors of the
Company to terminate the Plan at any time and for any reason pursuant to Section
7, shall remain in effect thereafter. In the event that on any date of grant the
number of Shares to be subject to Options granted to all Nonemployee Directors
exceeds the number of Shares then available for grant under the Plan, each
Nonemployee Director shall share pro rata in the number of Shares that remain
available for grant on such date.
<PAGE>
SECTION 2
DEFINITIONS
-----------
For purposes of this Plan, the following terms shall have the meanings
indicated unless a different meaning is plainly required by the context:
2.1 "Affiliate" means any corporation or any other entity (including, but
---------
not limited to, partnerships and joint ventures) controlling, controlled by, or
under common control with the Company.
2.2 "Board" means the Board of Directors of the Company.
-----
2.3 "Code" means the Internal Revenue Code of 1986, as amended.
----
Reference to a specific section of the Code shall include such section, any
valid regulation promulgated thereunder, and any comparable provision of any
future legislation amending, supplementing or superseding such section.
2.4 "Company" means Central Garden & Pet Company, a Delaware corporation,
-------
or any successor thereto.
2.5 "Director" means an individual who is a member of the Board.
--------
2.6 "Disability" means a permanent and total disability within the
----------
meaning of section 22(e)(3) of the Code.
2.7 "Exchange Act" means the Securities Exchange Act of 1934, as amended
------------
from time to time, or any successor Act thereto. Reference to a specific
section of the Exchange Act shall include such section, any valid regulation
promulgated thereunder, and any comparable provision of any future legislation
amending, supplementing or superseding such section.
2.8 "Exercise Price" means the price at which a Share may be purchased
--------------
pursuant to an Option.
2.9 "Fair Market Value" means the average of the highest and lowest
-----------------
quoted selling prices for Shares on the relevant date, or if there were no sales
on such date, the arithmetic mean of the highest and lowest quoted selling
prices on the nearest day after the relevant date, as determined by the Board.
2.10 "Nonemployee Director" means a Director who is an employee of
--------------------
neither the Company nor of any Affiliate.
<PAGE>
2.11 "Option" means an option to purchase Shares which has been granted
------
under the provisions of the Plan. Options are not intended to be an incentive
stock option under section 422 of the Code.
2.12 "Optionee" means a Nonemployee Director to whom an Option has been
--------
granted under the provisions of the Plan.
2.13 "Plan" means the Central Garden & Pet Company Nonemployee Director
----
Stock Option Plan, as set forth in this instrument and as hereafter amended from
time to time.
2.14 "Shares" means the shares of common stock, $0.01 par value, of the
------
Company.
SECTION 3
ADMINISTRATION OF THE PLAN
--------------------------
3.1 The Board. The Plan shall be administered by the Board. It shall be
---------
the duty of the Board to conduct the general administration of the Plan in
accordance with its provisions.
3.2 Authority of the Board. The Board shall have all powers and
----------------------
discretion necessary or appropriate to administer the Plan and to control its
operation in accordance with its terms, including, but not by way of limitation,
the following powers:
(a) To interpret the provisions of the Plan and to determine, in its
sole discretion, any question arising under, or in connection with the
administration or operation of, the Plan;
(b) To employ such counsel, agents and advisers, and to obtain such
legal, clerical and other services, as it may deem necessary or appropriate
in carrying out the provisions of the Plan; and
(c) To prescribe, amend and rescind rules and regulations relating to
the Plan, and to make all other determinations which may be necessary or
advisable for the administration of the Plan.
3.3 Decisions Binding. All actions, interpretations and decisions of the
-----------------
Board shall be final, conclusive and binding on all persons, and shall be given
the maximum deference permitted by law.
3.4 Administrative Expenses. All expenses incurred in the administration
-----------------------
of the Plan by the Board, or otherwise, including legal fees and expenses, shall
be paid and borne by the Company.
<PAGE>
3.5 Indemnification. Each person who is or shall have been a member
---------------
of the Board shall be indemnified and held harmless by the Company against and
from any loss, cost, liability, or expense that may be imposed upon or
reasonably incurred by him or her in connection with or resulting from any
claim, notion, suit, or proceeding to which he or she may be a party or in which
he or she may be involved by reason of any action taken or failure to act under
the Plan and against and from any and all amounts paid by him or her in
settlement thereof, with the Company's approval, or paid by him or her in
satisfaction of any judgment in any such action, suit, or proceeding against him
or her, provided he or she shall give the Company an opportunity, at its own
expense, to handle and defend the same before he or she undertakes to handle and
defend it on his or her own behalf. The foregoing right of indemnification
shall not be exclusive of any other rights of indemnification to which such
persons may be entitled under the Company's Certificate of Incorporation or
Bylaws, as a matter of law, or otherwise, or any power that the Company may have
to indemnify them or hold them harmless.
SECTION 4
SHARES SUBJECT TO THE PLAN
--------------------------
4.1 Number of Shares. Subject to adjustment as provided in Section 4.3,
----------------
the maximum number of Shares available for grant under the Plan may not exceed
100,000. Such Shares may be either authorized but unissued Shares or treasury
Shares.
4.2 Effect of Lapsed Options. If an Option is cancelled, terminates,
------------------------
expires or lapses for any reason, any Shares subject to such Option again shall
be made available for grant under the Plan (to the same Optionee or to a
different person).
4.3 Adjustments in Authorized Shares. In the event of any merger,
--------------------------------
reorganization, consolidation, recapitalization, separation, liquidation, stock
dividend, split-up, Share combination, or other change in the corporate
structure of the Company affecting the Shares, such adjustment shall be made in
the number and class of Shares which may be delivered under the Plan, and in the
number and class of and/or the Exercise Price of Shares subject to outstanding
Options, as the Board, in its sole discretion, shall determine to be appropriate
to prevent the dilution or diminishment of Options. Notwithstanding the
preceding sentence, the number of Shares subject to any Option always shall be a
whole number.
<PAGE>
SECTION 5
ELIGIBILITY
-----------
5.1 Eligibility. All Nonemployee Directors shall be eligible to
-----------
participate in the Plan.
5.2 Consideration for Grant of Option. Any Option under the Plan shall
---------------------------------
be granted in consideration of the past services of the Optionee.
SECTION 6
OPTIONS
-------
6.1 Grant of Options.
----------------
6.1.1 Each Nonemployee Director who is a Nonemployee Director on
February 20, 1996 automatically will receive on such date an Option to purchase
10,000 Shares.
6.1.2 Each Optionee who received an Option to purchase 10,000 Shares
pursuant to Section 6.1.1, and each Nonemployee Director who becomes a
Nonemployee Director after February 20, 1996, automatically will receive, on the
date of each subsequent annual meeting of the stockholders of the Company on
which the Nonemployee Director is such, an Option to purchase such number of
Shares as determined by A divided by B, where "A" is $25,000 and "B" is the Fair
Market Value of a Share on the date on which the Option is granted. Any
fractional Share shall be rounded up to the next full Share. Accordingly, for
example, if the Fair Market Value of a Share on the date of grant is $9.00, then
the Optionee or Nonemployee Director (as applicable) would receive an Option to
purchase 2,778 Shares (i.e., $25,000 divided by $9.00, rounded up to the next
----
full Share).
6.2 Terms of Options.
----------------
6.2.1 Option Agreement. Each Option shall be evidenced by a written
----------------
stock option agreement which shall be executed by the Optionee and
the Company.
6.2.2 Exercise Price. The Exercise Price for the Shares subject to
--------------
each Option shall be one hundred percent (100%) of the Fair Market Value of such
Shares on the date of grant.
6.2.3 Exercisability. Each Option shall become exercisable in full
--------------
four (4) years after the date of grant of the Option. Notwithstanding the
preceding sentence, if prior to the date when an Option would become
exercisable, the Optionee terminates service on the Board on account of death or
<PAGE>
Disability, the Option shall become exercisable in full on the date of such
termination of service.
6.2.4 Expiration of Options. Each Option shall terminate upon the
---------------------
expiration of five (5) years from the date of grant of the Option.
6.2.5 Payment. Options shall be exercised by the Optionee's delivery
-------
of a written notice of exercise to the Secretary of the Company, setting forth
the number of Shares with respect to which the Option is to be exercised,
accompanied by full payment for the Shares. The Exercise Price for any such
Shares shall be payable to the Company in full in cash or its equivalent.
As soon as practicable after receipt of a written notification of exercise
and full payment for the Shares purchased, the Company shall deliver to the
Optionee Share certificates (in the Optionee's name) representing such Shares.
6.2.6 Restrictions on Share Transferability. The Board may impose
-------------------------------------
such restrictions on any Shares acquired pursuant to the exercise of an Option,
as it may deem advisable, including, but not limited to, restrictions related to
applicable Federal securities laws, the requirements of any national securities
exchange or system upon which Shares are then listed and/or traded, and/or under
any blue sky or state securities laws.
6.2.7 Nontransferability of Options. No Option granted under the
-----------------------------
Plan may be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will, the laws of descent and distribution, or as
permitted in Section 7.2. All Options granted to an Optionee under the Plan
shall be exercisable during his or her lifetime only by such Optionee.
SECTION 7
MISCELLANEOUS
-------------
7.1 Amendment or Termination of the Plan. The Board, in its sole
------------------------------------
discretion, may amend, alter, modify or terminate the Plan, in whole or in part,
at any time and for any reason. However, only if and to the extent required to
maintain the Plan's qualification under Rule 16b-3 promulgated under the
Exchange Act, any such amendment shall be subject to stockholder approval. In
addition, as required by Rule 16b-3, the provisions regarding the formula for
determining the amount and timing of Options shall in no event be amended more
than once every six months, other than to comport with changes in the Code
and/or the Employee Retirement Income Security Act of 1974, as amended
<PAGE>
("ERISA"). (ERISA is inapplicable to the Plan.) Neither the amendment,
suspension, termination, nor scheduled expiration of the Plan shall, without the
consent of the Optionee, alter or impair any rights or obligations under any
Option theretofore granted. No Option may be granted during any period of
suspension nor after termination of the Plan.
7.2 Beneficiary Designation. If permitted by the Board, an Optionee may
-----------------------
name a beneficiary or beneficiaries to whom any benefit under the Plan is to be
paid in case of the Optionee's death before he or she receives any or all of
such benefit. Each such designation shall revoke all prior designations by the
same Optionee and must be in a form and manner acceptable to the Board. In the
absence of any such designation, or if no beneficiary survives the Optionee,
benefits remaining unpaid at the Optionee's death shall be paid to the person or
persons entitled to such benefits under the Optionee's will or, if the Optionee
shall fail to make testamentary disposition of such benefits, his or her legal
representative. Any transferee must furnish the Company with (a) written notice
of his or her status as a transferee, and (b) evidence satisfactory to the
Company to establish the validity of the transfer and compliance with any laws
or regulations pertaining to said transfer.
7.3 Captions. The captions contained herein and in the table of contents
--------
are provided as a matter of convenience only, and in no way define, limit,
enlarge or describe the scope or intent of the Plan. Such captions shall not
affect in any way the construction of any provision of the Plan.
7.4 Applicable Law; Severability. The Plan hereby created shall be
----------------------------
construed, administered and governed in all respects in accordance with the laws
of the State of California (with the exception of its conflict of laws
provisions). If any provision of this instrument shall be held invalid or
unenforceable by a court of competent jurisdiction, the remaining provisions
hereof shall continue to be fully effective.
7.5 No Effect Upon Other Compensation Plans. The adoption of this Plan
---------------------------------------
shall not affect any other stock option, compensation or incentive plans in
effect for the Company or any Affiliate, and this Plan shall not preclude the
Board from establishing any other forms of incentive or compensation for
Nonemployee Directors.
7.6 No Effect on Service. Nothing in the Plan shall interfere with or
--------------------
limit in any way the right of the Company to terminate any Optionee's service on
the Board at any time, with or without cause.
<PAGE>
7.7 Requirements of Law. The granting of Options and the issuance of
-------------------
Shares under the Plan shall be subject to all applicable laws, rules, and
regulations, and to such approvals by any governmental agencies or national
securities exchanges as may be required.
7.8 Rule 16b-3 Compliance. Transactions under this Plan are intended to
---------------------
comply with all applicable conditions of Rule 16b-3 or its successors under the
Exchange Act. To the extent any provision of the Plan, an Option or any action
by the Board fails to so comply, it shall be deemed null and void, to the extent
permitted by law and deemed advisable by the Board. Notwithstanding any
contrary provision of the Plan, if the Board specifically determines that
compliance with Rule 16b-3 no longer is required, all references in the Plan to
Rule 16b-3 shall be of no force or effect.
EXECUTION
---------
IN WITNESS WHEREOF, the Company, by its duly authorized officer, has
executed this Plan on the date indicated below.
CENTRAL GARDEN & PET COMPANY
Dated: _____________, 1996 By ______________________________
Title:
<PAGE>
EXHIBIT 4.2
CENTRAL GARDEN & PET COMPANY
NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
1. Grant of Option. Central Garden & Pet Company (the "Company") hereby
---------------
grants to ____________________ (the "Director") under the Central Garden & Pet
Company Nonemployee Director Stock Option Plan (the "Plan"), as a separate
incentive in connection with his or her service on the Board and not in lieu of
any fees or other compensation for his or her services, a nonqualified stock
option to purchase, on the terms and conditions set forth in this Agreement and
the Plan, all or any part of an aggregate of 10,000 shares of authorized but
unissued or treasury shares of common stock, $0.01 par value, of the Company
("Shares"). The option granted hereby is not intended to be an incentive stock
option within the meaning of section 422 of the Code.
2. Exercise Price. The purchase price per Share for this option (the
--------------
"Exercise Price") shall be $9.00, which is the Fair Market Value per Share on
February 20, 1996, the effective date of this Agreement (the "Grant Date").
3. Number of Shares. The number and class of Shares specified in
----------------
Paragraph 1 above, and/or the Exercise Price, are subject to appropriate
adjustment in the event of any merger, reorganization, consolidation,
recapitalization, separation, liquidation, stock dividend, split-up, Share
combination or other change in the corporate structure of the Company affecting
the Shares; provided, however, that the number of Shares subject to this option
shall always be a whole number. Subject to any required action of the
stockholders of the Company, if the Company is the surviving corporation in any
merger or consolidation, the option granted hereunder (to the extent that it is
still outstanding) shall pertain to and apply to the securities to which a
holder of the same number of Shares that are then subject to the option would
have been entitled.
4. Commencement of Exercisability. The right to exercise this option
------------------------------
shall accrue as to 100% of the Shares subject thereto on the fourth anniversary
date of the Grant Date; provided, however, that, if prior to such date, the
Director terminates his service on the Board on account of death or Disability,
the option shall become exercisable in full on the date of such termination of
service.
<PAGE>
5. Termination of Option. The right to exercise this option shall
---------------------
terminate on the fifth anniversary date of the Grant Date.
6. Persons Eligible to Exercise. This option shall be exercisable
----------------------------
during the Director's lifetime only by the Director. This option is not
transferable, except that the Director may transfer this option (a) by a valid
beneficiary designation made in a form and manner acceptable to the Committee,
or (b) by will or the applicable laws of descent and distribution.
7. Death of the Director. To the extent exercisable after the
---------------------
Director's death, this option shall be exercised only by the Director's
designated beneficiary or beneficiaries, or if no beneficiary survives the
Director, by the person or persons entitled to the option under the Director's
will, or if the Director fails to make a testamentary disposition of the option,
his or her legal representative. Any such transferee must furnish the Company
(a) written notice of his or her status as a transferee, (b) evidence
satisfactory to the Company to establish the validity of the transfer of this
option and compliance with any laws or regulations pertaining to such transfer,
and (c) written acceptance of the terms and conditions of this option as set
forth in this Agreement.
8. Exercise of Option. This option may be exercised by the person then
------------------
entitled to do so as to any Shares which may then be purchased (a) by giving
written notice of exercise to the Secretary of the Company (or his or her
designee), specifying the number of full Shares to be purchased and accompanied
by full payment of the Exercise Price thereof (and the amount of any income tax
the Company is required by law to withhold by reason of such exercise), and (b)
by giving satisfactory assurances in writing if requested by the Company, signed
by the person exercising the option, that the Shares to be purchased upon such
exercise are being purchased for investment and not with a view to the
distribution thereof.
9. Suspension of Exercisability. If at any time the Company shall
----------------------------
determine, in its discretion, that the listing, registration or qualification of
the Shares upon any securities exchange or under any state or federal law, or
the consent or approval of any governmental regulatory authority, is necessary
or desirable as a condition of the purchase of Shares hereunder, this option may
not be exercised, in whole or in part, unless and until such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Company. The Company
shall make reasonable efforts to meet the requirements of any such state or
federal law or securities exchange and to obtain any such consent or approval of
any such governmental authority.
<PAGE>
10. No Rights of Stockholder. Neither the Director nor any person
------------------------
claiming under or through the Director shall be or have any of the rights or
privileges of a stockholder of the Company in respect of any of the Shares
issuable pursuant to the exercise of this option, unless and until certificates
representing such Shares shall have been issued, recorded on the records of the
Company or its transfer agents or registrars, and delivered to the Director (or
such other person).
11. No Effect on Service. Nothing in this Agreement or the Plan shall
--------------------
interfere with or limit in any way the right of the Company to terminate the
Director's service on the Board at any time, with or without cause.
12. Addresses for Notices. Any notice to be given to the Company under
---------------------
the terms of this Agreement shall be addressed to the Company, in care of its
Secretary, 3697 Mt. Diablo Boulevard, Lafayette, CA 94549, or at such other
address as the Company may hereafter designate in writing. Any notice to be
given to the Director shall be addressed to the Director at the address set
forth beneath the Director's signature hereto, or at such other address as the
Director may hereafter designate in writing. Any such notice shall be deemed to
have been duly given if and when enclosed in a properly sealed envelope,
addressed as aforesaid, registered or certified and deposited, postage and
registry fee prepaid, in a United States post office.
13. Option is Not Transferable. Except as otherwise provided herein,
--------------------------
this option and the rights and privileges conferred hereby shall not be
transferred, assigned, pledged or hypothecated in any way (whether by operation
of law or otherwise) and shall not be subject to sale under execution,
attachment or similar process. Upon any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of this option, or of any right or privilege
conferred hereby, or upon any attempted sale under any execution, attachment or
similar process, this option and the rights and privileges conferred hereby
immediately shall become null and void.
14. Binding Agreement. Subject to the limitation on the transferability
-----------------
of this option contained herein, this Agreement shall be binding upon and inure
to the benefit of the heirs, legatees, legal representatives, successors and
assigns of the parties hereto.
15. Conditions to Exercise. The Exercise Price for this option must be
----------------------
paid in the legal tender of the United States. Exercise of this option will not
be permitted until satisfactory arrangements have been made for the payment of
the appropriate amount of withholding taxes (as determined by the Company).
<PAGE>
16. Plan Governs. This Agreement is subject to all of the terms and
------------
provisions of the Plan. In the event of a conflict between one or more
provisions of this Agreement and one or more provisions of the Plan, the
provisions of the Plan shall govern. Capitalized terms and phrases used and not
defined in this Agreement shall have the meaning set forth in the Plan.
17. Board Authority. The Board shall have the power to interpret the
---------------
Plan and this Agreement and to adopt such rules for the administration,
interpretation and application of the Plan as are consistent therewith. All
actions taken and all interpretations and determinations made by the Board in
such connection shall be final and binding upon the Director, the Company and
all other interested persons, and shall be given the maximum deference permitted
by law. No member of the Board shall be personally liable for any action,
determination or interpretation made in good faith with respect to the Plan or
this Agreement.
18. Captions. The captions provided herein are for convenience only and
--------
are not to serve as a basis for interpretation or construction of this
Agreement.
19. Agreement Severable. In the event that any provision in this
-------------------
Agreement shall be held invalid or unenforceable, such provision shall be
severable from, and such invalidity or unenforceability shall not be construed
to have any effect on, the remaining provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, in
duplicate, effective as of the Grant Date.
CENTRAL GARDEN & PET COMPANY
By ______________________________
Title:
____________________________
Director Signature
____________________________
____________________________
Address
____________________________
Social Security Number
<PAGE>
EXHIBIT 5.1
August 9, 1996
Central Garden & Pet Company
3697 Mt. Diablo Boulevard
Lafayette, California 94549
Re: Central Garden & Pet Company/
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
At your request, we are rendering this opinion in connection with the
proposed issuance pursuant to the Central Garden & Pet Company Nonemployee
Director Stock Option Plan (the "Plan"), of up to 100,000 shares of common
stock, $.01 par value ("Common Stock"), of Central Garden & Pet Company, a
Delaware corporation (the "Company").
We have examined instruments, documents, and records which we deemed
relevant and necessary for the basis of our opinion hereinafter expressed. In
such examination, we have assumed the following: (a) the authenticity of
original documents and the genuineness of all signatures; (b) the conformity to
the originals of all documents submitted to us as copies; and (c) the truth,
accuracy and completeness of the information, representations and warranties
contained in the records, documents, instruments and certificates we have
reviewed.
Based on such examination, we are of the opinion that the 100,000
shares of Common Stock to be issued by the Company pursuant to the Plan are
validly authorized shares of Common Stock, and, when issued in accordance with
the provisions of the Plan, will be legally issued, fully paid, and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to this
Registration Statement on Form S-8 and to the use of our name wherever it
appears in said Registration Statement. In giving such consent, we do not
consider that we are "experts" within the meaning of such term as used in the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission issued thereunder with respect to any part of
the Registration Statement, including this opinion, as an exhibit or otherwise.
Very truly yours,
/s/ Orrick, Herrington & Sutcliffe
ORRICK, HERRINGTON & SUTCLIFFE
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Central Garden & Pet Company on Form S-8 of our reports dated October 27, 1995,
appearing in the Annual Report on Form 10-K of Central Garden & Pet Company for
the year ended September 30, 1995.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
San Francisco, California
August 9, 1996
