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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.
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(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
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(Address of principal executive offices) (Zip code)
Fresh Choice, Inc.
1992 Employee Stock Purchase Plan
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(Full title of the plan)
David E. Pertl
Vice President and Chief Financial Officer
2901 Tasman Drive, Suite 109
Santa Clara, California 95054
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(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.
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<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
Securities to Amount to be offering price per aggregate Amount of
be registered registered share(1) offering price1 registration fee
- ------------------------ ---------------------- ---------------------- ----------------------- ----------------------
<S> <C> <C> <C> <C>
1992 Employee Stock Purchase Plan
Common Stock 200,000 $0.95625 $191,250 $56.42
Par Value $0.001
</TABLE>
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
latest fiscal year ended December 28, 1997, 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.
- --------
(1) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. The Fresh Choice, Inc. 1992 Employee Stock Purchase Plan
establishes a purchase price equal to 85% of the fair market value of the
Company's Common Stock and, therefore, the price for shares issuable under this
plan is based upon 85% of the average of the high and low prices of the Common
Stock on October 13, 1998 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
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.
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
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 October
15, 1998.
FRESH CHOICE, INC.
By: /s/ David E. Pertl
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David E. Pertl, Vice President and Chief
Financial Officer
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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 October 15, 1998.
<TABLE>
<CAPTION>
Signature Title
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<S> <C>
/s/ Everett F. Jefferson
- ---------------------------------------- President, Chief Executive Officer, and
Everett F. Jefferson Director (Principal Executive Officer)
/s/ David E. Pertl
- ---------------------------------------- Vice President and Chief Financial
David E. Pertl Officer (Principal Financial and
Accounting Officer)
/s/ Charles A. Lynch
- ---------------------------------------- Chairman of the Board and Director
Charles A. Lynch
/s/ Carl R. Hays
- ---------------------------------------- Director
Carl R. Hays
/s/ Vern O. Curtis
- ---------------------------------------- Director
Vern O. Curtis
/s/ Charles L. Boppell
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Charles L. Boppell Director
/s/ Barry Krantz
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Barry Krantz Director
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EXHIBIT INDEX
4.1 Restated Certificate of Incorporation of the Company, filed in the
Office of the Secretary 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)
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Gray Cary Ware & Freidenrich LLP
400 Hamilton Avenue, Palo Alto, CA 94301-1825
Phone 650-328-6561 Fax 650-327-3699 www.gcwf.com
EXHIBIT 5
October 15, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Fresh Choice, 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 200,000 shares of the
Common Stock, $0.001 par value, of the Company which may be issued pursuant to
the Company's 1992 Employee Stock Purchase Plan (the "Plan").
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 200,000
shares of Common Stock which may be issued pursuant to the Plan 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, 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
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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 12, 1998 appearing
in the Annual Report on Form 10-K of Fresh Choice, Inc. for the year ended
December 28, 1997.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
San Jose, California
October 15, 1998
