<PAGE> 1
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
of incorporation or organization) identification no.)
2901 Tasman Drive, Suite 109
Santa Clara, California 95054
-----------------------------------------------------
(Address of principal executive offices) (Zip code)
FRESH CHOICE, INC.
INDIVIDUAL STOCK OPTION AGREEMENTS
------------------------------------
(Full title of the plan)
David E. Pertl
Vice President and Chief Financial Officer
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 shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
<PAGE> 2
<TABLE>
<CAPTION>
================================================================================================
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------
Title of Proposed maximum Proposed maximum
Securities to be Amount to be offering price aggregate Amount of
registered(1) registered per share(2) offering price(2) registration fee
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Individual Stock
Option Agreements
- -----------------
Common Stock 120,000 $4.375 $525,000.00 $154.88
Par Value $0.001
================================================================================================
</TABLE>
(1) The securities to be registered include options to acquire such Common
Stock.
(2) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. The price is computed on the basis of the exercise
price of the shares subject to the individual stock option agreements.
2
<PAGE> 3
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's
fiscal year ended December 29, 1996, as filed with the Securities and Exchange
Commission (File No. 0-20792).
(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 filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
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
Inapplicable.
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.
3
<PAGE> 4
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.
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; and
(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.
4
<PAGE> 5
(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.
(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.
5
<PAGE> 6
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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
February 23, 1998.
FRESH CHOICE, INC.
By: /s/ David E. Pertl
-------------------------------------
David E. Pertl, Vice President and
Chief Financial Officer
6
<PAGE> 7
SIGNATURES AND POWER OF ATTORNEY
The officers and directors of Fresh Choice, Inc. whose signatures
appear below, hereby constitute and appoint Charles A. Lynch and David E. Pertl,
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, as amended, this registration statement has been signed by the following
persons in the capacities indicated on February 23, 1998.
<TABLE>
<CAPTION>
Signature Title
- ---------------------------------- ----------------------------------------
<S> <C>
/s/ Everett F. Jefferson President, Chief Executive Officer, and
- ---------------------------------- Director (Principal Executive Officer)
Everett F. Jefferson
/s/ David E. Pertl Vice President and Chief Financial Officer
- ---------------------------------- (Principal Financial and Accounting
David E. Pertl Officer)
/s/ Charles A. Lynch Chairman of the Board and Director
- ----------------------------------
Charles A. Lynch
- ---------------------------------- Director
Carl R. Hays
/s/ M. Michael Casey Director
- ----------------------------------
M. Michael Casey
/s/ Vern O. Curtis Director
- ----------------------------------
Vern O. Curtis
</TABLE>
7
<PAGE> 8
EXHIBIT INDEX
4.1 Restated Certificate of Incorporation of the Company, filed in the
Office of the Seccretary of State of the State of Delaware on June 21,
1993, 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 on June 29, 1993, as amended by Amendment No. 1 to
Form S-1 filed July 7, 1993 (No. 33-65204)
4.2 Certificate of Amendment of Restated Certificate of Incorporation of the
Company is incorporated by reference to Exhibit 4.2 to the Registration
Statement on Form S-8 filed with the Securities and Exchange Commission
on January 17, 1997 (No. 333-19993)
4.3 Amended Bylaws of the Company, dated April 11, 1996, are incorporated by
reference to Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q
for the quarter ended March 24, 1996, filed with the Securities and
Exchange Commission on May 8, 1996 (File No. 0-20792)
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (included in signature pages to this registration
statement)
8
<PAGE> 1
EXHIBIT 5
[GRAY CARY WARE & FREIDENRICH LLP LETTERHEAD]
February 23, 1998
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 120,000 shares of the
Common Stock, $0.001 par value, of the Company which may be issued pursuant to
the exercise of options granted under certain individual stock option agreements
(the "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 120,000 shares
of Common Stock which may be issued upon exercise of options granted under the
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 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.
Very truly yours,
/s/ Gray Cary Ware & Freidenrich LLP
GRAY CARY WARE & FREIDENRICH LLP
SILICON VALLEY SAN DIEGO SAN FRANCISCO AUSTIN
LA JOLLA IMERIAL VALLEY MEXICO
<PAGE> 1
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 7, 1997 appearing in
the Annual Report on Form 10-K of Fresh Choice, Inc. for the year ended December
29, 1996.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
San Jose, California
February 19, 1998
