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Filed with the Securities and Exchange Commission on April 23, 1999
Registration No.______________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Monterey Pasta Company
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(Exact name of registrant as specified in its charter)
Delaware 77-0227341
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
1528 Moffett Street
Salinas, CA 93905
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(Address of principal executive offices) (Zip code)
MONTEREY PASTA COMPANY
INDIVIDUAL STOCK OPTION AGREEMENTS
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(Full title of the plan)
R. Lance Hewitt
President and Chief Executive Officer
1528 Moffett Street
Salinas, CA 93905
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (831) 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
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Proposed Proposed
Title of maximum maximum
Securities to be Amount to be offering price aggregate Amount of
registered(1) registered(2) per share(3) offering price(3) registration fee
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<S> <C> <C> <C> <C>
INDIVIDUAL STOCK OPTION AGREEMENTS
WITH STEVEN A. NESS, EDWARD P.
GISTARO AND ALBERT MIJANGOS
Common Stock 300,000 $ 2.33 $ 699,000.00 $ 194.32
Par Value $0.001
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1 The securities to be registered include options to acquire Common Stock.
2 Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any stock
split, stock dividend or similar transaction.
3 The price is computed on the basis of the actual exercise price of the
options.
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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
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 27, 1998 as filed with the Securities and
Exchange Commission on March 17, 1999.
(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 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
Section 102(b) of the Delaware General Corporation Law authorizes a
corporation to provide in its Certificate of Incorporation that a director of
the corporation shall not be personally liable to corporation or its
stockholders for monetary damages for breach or alleged breach of the director's
"duty of care." While this 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 a director's duty of
loyalty or liability for acts or omissions not in good faith or involving
intentional misconduct or knowing violations of law,
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illegal payment of dividends or stock redemptions or repurchases, or for any
transaction from which the director derives an improper personal benefit.
As permitted by the statute, the Company has adopted provisions in its
Certificate of Incorporation which eliminate to the fullest extent permissible
under Delaware law 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.
Section 145 of the General Corporation Law of the State of Delaware
provides for the indemnification of officers, directors, employees and agents of
a corporation. The Bylaws of the Company provide for indemnification of its
directors, officers, employees and agents to the full extent permitted by under
Delaware law, including those circumstances in which indemnification would
otherwise be discretionary under Delaware law. The Company's Bylaws also
empower it to enter into indemnification agreements with its directors and
officers and to purchase insurance on behalf of any person whom it is required
or permitted to indemnify. The Company has entered into agreements with its
directors and certain of its executive officers that require the Company to
indemnify such persons to the fullest extent permitted under Delaware law
against expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred (including expenses of a derivative action) in connection
with any proceeding, whether actual or threatened, to which any such person may
be made a party by reason of the fact that such person is or was a director or
an executive officer of the Company or any of its affiliated enterprises. The
indemnification agreements also set forth certain procedures that will apply in
the event of a claim for indemnification thereunder.
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
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;
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(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 (1)(i) and (l)(ii) do not apply if 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, 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.
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.
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.
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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 Salinas, State of California, on April 16, 1999.
MONTEREY PASTA COMPANY
By: /s/ R. Lance Hewitt
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R. Lance Hewitt
President and Chief Executive Officer
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SIGNATURES AND 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 and on the dates indicated.
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Signature Title Date
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/s/ R. Lance Hewitt President, Chief Executive April 16, 1999
- ----------------------------- Officer and Director
R. Lance Hewitt (Principal Executive Officer)
/s/ Stephen L. Brinkman Chief Financial Officer April 16, 1999
- ----------------------------- (Principal Financial and
Stephen L. Brinkman Accounting Officer)
/s/ Charles B. Bonner Director April 16, 1999
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Charles B. Bonner
- ----------------------------- Director April ____, 1999
Floyd R. Hill
/s/ Thomas E. Kees Director April 16, 1999
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Thomas E. Kees
/s/ Van Tunstall Director April 20, 1999
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Van Tunstall
Director April ____, 1999
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James Wong
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EXHIBIT INDEX
4.1 Certificate of Incorporation of the Company 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
( No. 001-11777) ("1996 Proxy")
4.2 Bylaws of the Company are incorporated by reference to Exhibit C to the
1996 Proxy
4.3 Stockholders Rights Agreement dated 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 (No. 000-22534)
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of BDO Seidman LLP
24 Power of Attorney (included in signature pages to this registration
statement)
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EXHIBIT 5
[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP]
400 Hamilton Avenue, Palo Alto, CA 94301-1825
Phone: 650-328-6561 Fax: 650-327-3699 www.gcwf.com
April 22, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
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 300,000 shares of the
Common Stock, $0.001 par value, of the Company which may be issued pursuant to
certain individual stock option agreements between the Company and Steven A.
Ness, Edward P. Gistaro and Albert Mijangos (collectively, 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 300,000 shares of
Common Stock which may be issued pursuant to 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.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich LLP
GRAY CARY WARE & FREIDENRICH LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
Monterey Pasta Company
Salinas California
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated January
29, 1999, except for Notes 4 and 17, which are as of March 12, 1999, relating to
the consolidated financial statements of Monterey Pasta Company appearing in the
Company's Annual Report on Form 10-K for the year ended December 27, 1998.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/ BDO Seidman LLP
BDO Seidman LLP
San Francisco, California
April 22, 1999
