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Registration No.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FRESH CHOICE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 77-0130849
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
2901 TASMAN DRIVE, SUITE 109
SANTA CLARA, CALIFORNIA 95054
(Address of principal executive offices) (Zip code)
INDIVIDUAL STOCK OPTION AGREEMENTS
FRESH CHOICE, INC. SECOND AMENDED AND RESTATED 1988 STOCK OPTION PLAN
(Full title of the plan)
DAVID E. PERTL
VICE PRESIDENT, CHIEF FINANCIAL OFFICER
FRESH CHOICE, INC.
2901 TASMAN DRIVE, SUITE 109
SANTA CLARA, CALIFORNIA 95054
(Name and address of agent for service)
Telephone number, including area code, of agent for service: 408/986-8661.
This registration statement, including all exhibits and attachments, contains 10
pages. The exhibit index may be found on page 7 of the consecutively numbered
pages of the registration statement.
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered(1) registered share(2) price(2) fee
- ---------------------------------------------------------------------------------------------------
Fresh Choice, Inc. Second Amended and Restated 1988 Stock Option Plan
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<S> <C> <C> <C> <C>
Common Stock 700,000 $ 4.50 $3,150,000.00 $ 954.55
Par Value $.001
Individual Stock Options
- ------------------------
Common Stock 65,000 $6.875 $ 446,875.00 $ 135.42
Par Value $.001 55,000 $6.875 $ 378,125.00 $ 114.58
------- ------------- ---------
TOTAL 820,000 $3,975,000.00 $1,204.55
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Fresh Choice, Inc. (the "Company") hereby incorporates by reference in
this registration statement the following documents:
(a) The Company's latest annual report on Form 10-K filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), containing audited financial statements for the Company as
filed with the Commission.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the registrant document
referred to in (a) above.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (No. 0-20792, effective October 29,
1992) filed under the Exchange Act, including any amendment or report filed for
the purpose of updating such description.
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(1) Including options to acquire such Common Stock.
(2) Estimated pursuant to Rule 457 solely for purposes of calculating
the registration fee. As to shares subject to outstanding but unexercised
options, the price is computed on the basis of the weighted average exercise
price. As to the remaining shares the price is based upon the average of the
high and low prices of the Common Stock on January 10, 1997, as reported on the
National Association of Securities Dealers Automated Quotations System.
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All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
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
The class of securities to be offered is registered under Section 12
of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
The validity of the shares of Common Stock to be offered hereunder has
been passed upon for the Company by Gray Cary Ware & Freidenrich, A Professional
Corporation. As of January 6, 1997 certain attorneys of Gray Cary Ware &
Freidenrich, A Professional Corporation, owned 2,000 shares of the Common Stock
of the Company.
Item 6. Indemnification of Directors and Officers
Delaware law authorizes corporations to eliminate the personal
liability of directors to corporations and their stockholders for monetary
damages for breach or alleged breach of the directors' "duty of care." While the
relevant statute does not change directors' duty of care, it enables
corporations to limit available relief to equitable remedies such as injunction
or rescission. The statute has no effect on directors' duty of loyalty, acts or
omissions not in good faith or involving intentional misconduct or knowing
violations of law, illegal payment of dividends and approval of any transaction
from which a director derives an improper personal benefit.
The Company has adopted provisions in its Certificate of Incorporation
which eliminate the personal liability of its directors to the Company and its
stockholders for monetary damages for breach or alleged breach of their duty of
care. The Bylaws of the Company provide for indemnification of its directors,
officers, employees and agents to the full extent permitted by the General
Corporation Law of the State of Delaware, the Company's state of incorporation,
including those circumstances in which indemnification would otherwise be
discretionary under Delaware Law. Section 145 of the General Corporation Law of
the State of Delaware provides for indemnification in terms sufficiently broad
to indemnify such individuals, under certain circumstances, for liabilities
(including reimbursement of expenses incurred) arising under the Securities Act.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
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Item 9. Undertakings
(a) Rule 415 Offering
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)(l)(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 Exchange Act that are incorporated by reference 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.
(b) Filing incorporating subsequent Exchange Act documents by reference
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 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.
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(h) Request for acceleration of effective date or filing of
registration statement on Form S-8
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.
SIGNATURE AND POWER OF ATTORNEY
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 Santa Clara, State of California, on January 13,
1997.
Fresh Choice, Inc.
/s/ David E. Pertl
By:
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David E. Pertl, Vice President, Chief
Financial Officer
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POWER OF ATTORNEY
The officers and directors of Fresh Choice, Inc. whose signatures
appear below, hereby constitute and appoint Charles A. Lynch and David A.
Anderson, and each of them, their true and lawful attorneys and agents, with
full power of substitution, each with power to act alone, to sign and execute on
behalf of the undersigned any amendment or amendments to this registration
statement on Form S-8, and each of the undersigned does hereby ratify and
confirm all that each of said attorney and agent, or their or his substitutes,
shall 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 by the
following persons in the capacities indicated on January 13, 1997.
<TABLE>
<CAPTION>
Signature Title
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<S> <C>
/s/ Robert Ferngren
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Robert Ferngren President, Chief Executive Officer and Directors
(Principal Executive Officer)
/s/ David E. Pertl
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David E. Pertl Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
/s/ Joan M. Miller
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Joan M. Miller Vice President, Human Resources and Secretary
/s/ Charles A. Lynch
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Charles A. Lynch Chairman of the Board of Directors and Director
/s/ M. Michael Casey
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M. Michael Casey Director
/s/ Vern O. Curtis
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Vern O. Curtis Director
/s/ Carl R. Hays
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Carl R. Hays Director
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT INDEX
Sequentially
Numbered Page
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<S> <C> <C>
4.1 Restated Certificate of Incorporation of the Company is
incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1 filed with the Securities
and Exchange Commission in December 1992 (File
No. 33-65204) --
4.2 Certificate of Amendment of Restated Certificate
of Incorporation of the Company
8
4.3 Amended Bylaws of the Company is incorporated by reference to
Exhibit 3.2 to the Company's Registration Statement on Form
S-1 filed with the Securities and Exchange Commission in
December 1992 (File No. 33-65204) --
5 Opinion re legality
9
23.1 Consent of Counsel (included in Exhibit 5)
--
23.2 Consent of Deloitte & Touche LLP
10
24 Power of Attorney (included in signature pages to
this registration statement)
--
</TABLE>
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EXHIBIT 4.2
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CERTIFICATE OF AMENDMENT OF
RESTATED CERTIFICATE OF INCORPORATION OF
FRESH CHOICE, INC.
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Fresh Choice, Inc., a Delaware corporation (the "Corporation"), hereby
certifies:
1. That the Corporation's Board of Directors has duly adopted
resolutions that provide that Article FOURTH of the Restated Certificate of
Incorporation be amended to read in full as follows:
FOURTH:
A. The total number of shares of all classes of stock
which the Corporation shall have authority to issue
is Eighteen Million Five Hundred Thousand
(18,500,000), which consists of 15,000,000 shares of
Common Stock with par value of $.001 per share and
3,500,000 shares of Preferred Stock with par value of
$.001 per share.
B. The Board of Directors is authorized, subject to any
limitations prescribed by law, to provide for the
issuance of shares of Preferred Stock in series and,
by filing a certificate pursuant to the applicable
law of the State of Delaware, to establish from time
to time the number of shares to be included in each
such series, and to fix the designation, powers,
preferences and rights of the shares of each such
series and any qualifications, limitations or
restrictions thereon. The number of authorized shares
of Preferred Stock may be increased or decreased (but
not below the number of shares thereof then
outstanding) by the affirmative vote of the holders
of a majority of the Common Stock without a vote of
the holders of the Preferred Stock, or of any series
thereof, unless a vote of any such holders is
required pursuant to the certificate or certificates
establishing the series of Preferred Stock.
2. That the proposed amendment has been duly adopted in accordance with
the provisions of Section 242 of the General Corporation law of the State of
Delaware.
The Corporation has caused this Certificate of Amendment of Restated
Certificate of Incorporation to be signed by David A. Anderson, its Chief
Financial Officer, this 13th day of September 1996.
FRESH CHOICE, INC.
/s/ David A. Anderson
By: David A. Anderson
Chief Financial Officer
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[GRAY CARY WARE FREIDENRICH LETTERHEAD]
EXHIBIT 5
ATTORNEYS AT LAW OUR FILE NO.
400 HAMILTON AVENUE 1060383-900801
PALO ALTO, CA 94301-1825
TEL (415) 328-6561
FAX (415) 327-3699
January 10, 1997
http://www.gcwf.com
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Fresh Choice, Inc., a Delaware corporation (the
"Company"), we are rendering this opinion in connection with the registration
under the Securities Act of 1933, as amended, of up to 820,000 shares of the
Common Stock, $.001 par value, of the Company which may be issued pursuant to
the exercise of options granted under the Fresh Choice, Inc. Second Amended and
Restated 1988 Stock Option Plan (the "Plan") and the individual option
agreements with Mr. Robert Ferngren ("Agreements").
We have examined all 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 genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. We are admitted to
practice only in the State of California and we express no opinion concerning
any law other than the law of the State of California, the corporation laws of
the State of Delaware and the federal law of the United States. As to matters of
Delaware corporation law, we have based our opinion solely upon our examination
of such laws and the rules and regulations of the authorities administering such
laws, all as reported in standard, unofficial compilations. We have not obtained
opinions of counsel licensed to practice in jurisdictions other than the State
of California.
Based on such examination, we are of the opinion that the 820,00 shares
of Common Stock which may be issued upon exercise of options granted under the
Plan and Agreements are duly authorized shares of the Company's Common Stock,
and, when issued against receipt of the consideration therefor in accordance
with the provisions of the Plan and Agreements, will be validly issued, fully
paid and nonassessable. We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement referred to above and the use of our name
wherever it appears in said Registration Statement.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich
GRAY CARY WARE & FREIDENRICH
A Professional Corporation
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Fresh Choice, Inc. on Form S-8 of our report dated February 2, 1996 (February
27, 1996 as to the last three sentences of the first paragraph of Note 9)
appearing in the Annual Report on Form 10-K of Fresh Choice, Inc. for the year
ended December 31, 1995.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
San Jose, California
January 10, 1997
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