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Registration No.________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MONTEREY PASTA COMPANY
------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 77-0227341
----------------------------- ------------------------------------
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
1528 MOFFETT STREET
SALINAS, CALIFORNIA 93905
----------------------------------------------------
(Address of principal executive offices) (Zip code)
MONTEREY PASTA COMPANY
FIRST AMENDED AND RESTATED 1993 STOCK OPTION PLAN
-------------------------------------------------
(Full title of the plan)
R. LANCE HEWITT
PRESIDENT AND CHIEF EXECUTIVE OFFICER
-------------------------------------
MONTEREY PASTA COMPANY
1528 MOFFETT STREET
SALINAS, CALIFORNIA 93905
--------------------------
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (408) 753-6262
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
<TABLE>
<CAPTION>
Proposed Proposed
maximum maximum
Title of securities to Amount to be offering price per aggregate offering Amount of
be registered registered share(1) price(1) registration fee(11)
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 540,000 $1.28 $691,200 $203.90
($0.001 par value
per share)
</TABLE>
- ---------------
1 Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. The price is based upon the average of the high and low
prices of the Common Stock on January 22, 1998 as reported on the National
Association of Securities Dealers Automated Quotations system.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Monterey Pasta Company (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 Section 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 29, 1996, as amended by Form
10-K/A-4 for the year ended December 29, 1996, as filed on October 14, 1997.
(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 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 pursuant to Section 12
of the Exchange Act, including any amendment or report filed for the purpose of
updating such description.
(d) The description of the Company's Common Stock Purchase
Rights contained in the Company's Registration Statement on Form 8-A, filed
pursuant to Section 12 of 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 breaches 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
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misconduct or knowing violations of law, illegal payment of dividends and
approval of any transaction from which 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 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
of 1933, as amended (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;
(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.
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(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) FILING INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, 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 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
Securities 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 Securities
Act and will be governed by the final adjudication of such issue.
SIGNATURE
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 Salinas, State of California, on January 23, 1998.
MONTEREY PASTA COMPANY
By: /s/ R. Lance Hewitt
------------------------------
R. Lance Hewitt
President and Chief Executive
Officer
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POWER OF ATTORNEY
The officers and directors of Monterey Pasta Company whose signatures
appear below, hereby constitute and appoint R. Lance Hewitt and Stephen L.
Brinkman, 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 January 23, 1998.
Signature Title
--------- -----
/s/ R. Lance Hewitt President, Chief Executive Officer
------------------------- and Director (Principal Executive
R. Lance Hewitt Officer)
/s/ Stephen L. Brinkman Chief Financial Officer (Principal
------------------------- Financial and Accounting Officer)
Stephen L. Brinkman
/s/ Charles Bonner Director
-------------------------
Charles Bonner
/s/ Kenneth A. Steel, Jr. Director
-------------------------
Kenneth A. Steel, Jr.
Director
-------------------------
Timothy J. Ryan
/s/ Daniel J. Gallery Director
-------------------------
Daniel J. Gallery
/s/ Floyd R. Hill Director
-------------------------
Floyd R. Hill
/s/ Robert F. Steel Director
-------------------------
Robert F. Steel
/s/ Van Tunstall Director
-------------------------
Van Tunstall
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/s/ James Wong Director
-------------------------
James Wong
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EXHIBIT INDEX
4.1 Certificate of Incorporation dated August 1, 1996 is incorporated by
reference from Exhibit B to the Company's Proxy Statement for the
Special Meeting of Shareholders held on August 1, 1996, filed with
the Securities and Exchange Commission on June 27, 1996 ("1996
Proxy")
4.2 Restated Bylaws of the Company are incorporated by reference to
Exhibit C to the 1996 Proxy
4.3 Shareholder Rights Agreement dated as of May 15, 1996 between the
Company and Corporate Stock Transfer, as rights agent is
incorporated by reference from Item 2 of Form 8-A filed with the
Securities and Exchange Commission on May 28, 1996
5 Opinion re legality
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Arthur Andersen, LLP
23.3 Consent of Deloitte & Touche, LLP
23.4 Consent of Counsel (included in Exhibit 5)
24 Power of Attorney (included in signature pages to this registration
statement)
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[Letterhead of Gray Cary
Ware & Freidenrich, LLP]
EXHIBIT 5
ATTORNEYS AT LAW
400 HAMILTON AVENUE
PALO ALTO, CA 94301-1825
TEL: (650) 328-6561
FAX: (650) 327-3699
http://www.gcwf.com
January 23, 1998
Securities and Exchange Commission
450 Fifth Street, NW
Washington, DC 20549
RE: MONTEREY PASTA COMPANY FIRST AMENDED AND RESTATED 1993 STOCK OPTION
PLAN REGISTRATION STATEMENT ON FORM S-8
Gentlemen and Ladies:
As legal counsel for Monterey Pasta Company, 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 540,000 shares of the
Company's Common Stock, $0.001 par value, which may be issued pursuant to the
exercise of options granted under the Monterey Pasta Company First Amended and
Restated 1993 Stock Option Plan (the "Option 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 540,000 shares of
Common Stock which may be issued upon the exercise of options granted under the
Option Plan are duly authorized shares of the Company's Common Stock, and, when
issued against payment of the purchase price therefor in accordance with the
provisions of the Option Plan, will be validly
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issued, fully paid and non-assessable. 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, LLP
GRAY CARY WARE & FREIDENRICH, LLP
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EXHIBIT 23.1
CONSENT OF BDO SEIDMAN, LLP
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The consolidated financial statements and schedule incorporated by reference in
this Registration Statement have been audited by BDO Seidman, LLP, independent
certified public accountants, to the extent and for the periods set forth in the
report incorporated herein by reference, and are incorporated herein in reliance
upon such report given upon the authority of said firm as experts in accounting
and auditing.
BDO SEIDMAN, LLP
San Francisco, California
January 22, 1998
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EXHIBIT 23.2
CONSENT OF ARTHUR ANDERSEN, LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
dated March 6, 1995 incorporated by reference in this Registration Statement
on Form S-8 of Monterey Pasta Company. It should be noted that we have
performed no audit procedures subsequent to March 6, 1995, the date of our
report. Furthermore, we have not audited any financial statements of Monterey
Pasta Company as of any date or for any period subsequent to January 1, 1995.
ARTHUR ANDERSEN LLP
Oakland, California
January 22, 1998
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EXHIBIT 23.3
CONSENT OF DELOITTE & TOUCHE, LLP
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of Monterey Pasta Company of our report dated March 29, 1996, September
30, 1997 as to Note 19 (which expresses an unqualified opinion and includes an
explanatory paragraph relating to the restatement described in Note 19),
appearing in the annual report on Form 10-K/A of Monterey Pasta Company for the
year ended December 29, 1996.
DELOITTE & TOUCHE LLP
San Francisco, California
January 22, 1998
