As filed with the Securities and Exchange Commission on December , 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Coffee People, Inc.
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(Exact name of registrant as specified in its charter)
Oregon 93-1073218
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
3259 N.W. 29th Avenue
Portland, Oregon 97210
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(Address of principal executive offices) (Zip Code)
Employee Stock Purchase Plan
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(Full title of the plan)
Kenneth B. Ross
Chief Financial Officer
Coffee People, Inc.
3259 N.W. 29th Avenue
Portland, OR 97210
(503) 223-7714
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(Name, address and telephone number of agent for service)
Copies to:
Ronald L. Greenman
Tonkon, Torp, Galen, Marmaduke & Booth
1600 Pioneer Tower
888 S.W. Fifth Avenue
Portland, Oregon 97204
(503) 221-1440
<PAGE>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount to Offering Aggregate Amount of
to be be Regis- Price Per Offering Registra-
Registered tered (1) Share (2) Price (2) tion Fee (2)
- ---------- --------- --------- --------- ------------
Common
Stock, 150,000 $6.42 $963,000 $320
no par shares
value
(1) This filing registers 150,000 shares of the Company's Common Stock reserved
for issuance under the Company's Employee Stock Purchase Plan. There are also
registered an undetermined number of additional shares of Common Stock that may
become available for purchase in accordance with the provisions of the Plans in
the event of a change in the outstanding shares of Common Stock, including a
recapitalization.
(2) Based upon the estimated proposed maximum offering price for the 150,000
shares reserved for issuance under the Employee Stock Purchase Plan, estimated
solely for purposes of calculating the registration fee, based upon the average
of the high and low prices of the Common Stock on December 27, 1996, as reported
by the Nasdaq National Market ($7.56), as adjusted to reflect the requirement
under the Employee Stock Purchase Plan that the shares be purchased at a
purchase price equal to the lesser of 85 percent of the fair market value of
such shares on the date of grant or 85 percent of the fair market value of such
shares on the date of exercise.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Coffee People, Inc., an Oregon
corporation (the "Company"), with the Securities and Exchange Commission (the
"Commission") are incorporated by reference into this registration statement:
(a) The Company's Prospectus dated September 25, 1996, filed pursuant
to Rule 424(b) under the Securities Act of 1933, as amended (the "Securities
Act") (Registration No. 333-5376-LA).
(b) The Company's quarterly report on Form 10-QSB for the quarter ended
September 30, 1996.
(c) The description of the Company's Common Stock, no par value (the
"Common Stock"), set forth in the Company's registration statement on Form SB-2,
as declared effective on September 25, 1996 (Registration No.
333-5376-LA).
All documents filed by the Company subsequent to those listed above
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Oregon Business Corporation Act (the "Act") authorizes the
indemnification of an officer or director made party to a proceeding because the
officer or director is or was an officer or director against liability
(including amounts paid in settlement) incurred in the proceeding and against
expenses with respect to the proceeding (including attorney fees) if: (a) the
conduct of the officer or director was in good faith, (b) the officer or
director reasonably believed that his conduct was in the best interests of the
corporation or at least not opposed to its best interests and (c) in the case of
a criminal proceeding, the officer or director had no reasonable cause to
believe his conduct was unlawful; provided, however, neither a director nor an
officer may be indemnified in connection with (i) a proceeding by or in the
right of the corporation in which the director or officer was adjudged liable or
(ii) any other proceeding charging improper personal benefit to the director or
officer in which the director or officer was adjudged liable on the basis that
personal benefit was improperly received by the director or officer. The
Company's Restated Articles of Incorporation (the "Articles") allow and the
Company's Bylaws require the Company to indemnify officers and directors to the
fullest extent permissible by law.
<PAGE>
The Act further provides that the articles of incorporation of a
corporation may provide that no director shall be personally liable to a
corporation or its stockholders for monetary damages for conduct as a director,
except that such provision does not eliminate the liability of a director (a)
for any breach of the director's duty of loyalty to the corporation or its
stockholders, (b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law, (c) for any unlawful
distribution as defined under the Act or (d) for any transaction from which the
director derived an improper personal benefit. The Company's Articles and Bylaws
provide that, to the fullest extent permissible by law, no director shall be
personally liable to the Company or its stockholders for monetary damages.
In addition to the indemnification and exculpation provided by the
Company's Articles and Bylaws, the Company intends to enter into an
indemnification agreement with each of its officers and directors providing
indemnification to the fullest extent permitted by law.
The effect of these provisions is to indemnify the directors and
officers of the Company against all costs and expenses of liability incurred by
them in connection with any action, suit or proceeding in which they are
involved by reason of their affiliation with the Company, to the fullest extent
permitted by law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits listed in the Index to Exhibits, which appears on page
II-6 herein, are filed as part of this registration statement.
<PAGE>
Item 9. Undertakings.
A. 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, as amended (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)(1)(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.
B. 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.
<PAGE>
C. 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 above-referenced provisions, or otherwise, the
registrant has been advised that in the opinion of the 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.
SIGNATURES
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 Portland, Oregon, on December 26, 1996.
COFFEE PEOPLE, INC.
By:/s/ Kenneth B. Ross
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Kenneth B. Ross
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below hereby constitutes and appoints Kenneth B. Ross his true and lawful
attorney-in-fact and agent, with full power of substitution for him in any and
all capacities, to sign any and all amendments or post-effective amendments to
this registration statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorney and agent full power and authority to do
any and all acts and things necessary or advisable in connection with such
matters, and hereby ratifying and confirming all that the attorney and agent, or
his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
<PAGE>
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 date(s) indicated:
PRINCIPAL EXECUTIVE OFFICERS: DATE:
/s/ James L. Roberts
- ------------------------------ December 26, 1996
James L. Roberts
Chairman of the Board of
Directors and Chief
Executive Officer
/s/ Taylor H. Devine
- ------------------------------ December 26, 1996
Taylor H. Devine
President, Chief Operating
Officer and Director
Principal Financial Officer:
/s/ Kenneth B. Ross
- ------------------------------ December 26, 1996
Kenneth B. Ross
Chief Financial Officer and
Secretary
Directors:
/s/ Gary G. Talboy
- ------------------------------ December 26, 1996
Gary G. Talboy
- ------------------------------ December 26, 1996
Doug L. Ayer
/s/ Jeffrey M. Ferguson
- ------------------------------ December 26, 1996
Jeffrey M. Ferguson
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Exhibit Page
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4.1 Restated Articles of Incorporation(1)
4.2 Bylaws, as amended(1)
5 Opinion of Tonkon, Torp, Galen,
Marmaduke & Booth
23.1 Consent of Arthur Anderson LLP,
Independent Public Accountants
23.2 Consent of Tonkon, Torp, Galen,
Marmaduke & Booth (included in Exhibit 5)
24 Power of Attorney (See Page II-5)
99 Employee Stock Purchase Plan(1)
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(1) Incorporated by reference to the Company's Registration Statement on Form
SB-2, as declared effective on September 25, 1996 (Registration No. 333-5376-
LA).
EXHIBIT 5.1
Tonkon, Torp, Galen, Marmaduke & Booth
Attorneys at Law
1600 Pioneer Tower
888 S.W. Fifth Avenue
Portland, Oregon 97204
(503) 221-1440
Fax: (503) 274-8779
December 11, 1996
To the Board of Directors
of Coffee People, Inc.
Ladies and Gentlemen:
We have acted as counsel for Coffee People, Inc. (the "Company") in
connection with the preparation and filing of a Registration Statement on Form
S-8 under the Securities Act of 1933, covering a proposed 150,000 shares of the
Company's Common Stock, no par value (the "Shares"). We have reviewed the
corporate action of the Company in connection with this matter and have examined
and relied upon such documents, corporate records and other evidence as we have
deemed necessary for the purpose of this opinion.
Based on the foregoing, it is our opinion that the Shares have been duly
authorized and, when issued and sold pursuant to the governing Stock Option
Agreements, the Shares will be legally issued, fully paid and nonassessable. We
hereby consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Tonkon, Torp, Galen
Marmaduke & Booth
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 registering 150,000 shares
of Coffee People, Inc. common stock of our reports dated March 29, 1996 (except
with respect to the matters discussed in Note 14, as to which the date is July
26, 1996) included in Coffee People, Inc.'s registration statement on Form SB-2,
as declared effective on September 25, 1996 (Registration Statement No.
333-5376-LA) and to all references to our firm included in this registration
statement.
/s/ Arthur Andersen LLP
Portland, Oregon
December 26, 1996
