As filed with the Securities and Exchange Commission on October 26, 2001
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
BRIAZZ, INC.
(Exact name of Registrant as specified in its charter)
Washington 91-1672311
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or organization)
3901 7/th/ Avenue South, Suite 200
Seattle, Washington 98108
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Address of Principal Executive Offices
(206) 467-0994
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(Registrant's Telephone Number, Including Area Code)
1996 Amended Stock Option Plan, 2001 Employee Stock Purchase Plan and Option
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Agreements with Messrs. Castleman, Fersch, Kourkoumelis and Schultz
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(Full Title of the Plan)
Tracy L. Warner
Vice President and Chief Financial Officer
BRIAZZ, Inc.
3901 7/th/ Avenue South, Suite 200
Seattle, Washington 98108
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(Name and Address of Agent For Service)
(206) 467-0994
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Each Class of Amount to Offering Price Per Aggregate Offering Amount of
Securities to be Registered be Registered/(1)/ Share Price Registration Fee
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Common Shares subject to
outstanding options under the
1996 Amended Stock Option Plan 883,926 shares $5.02/(2)/ $4,437,308.52 $ 1,109
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Common Shares not subject to 110,960 shares $1.09/(3)/ $ 120,946.40 $ 30
outstanding options under the
1996 Amended Stock Option Plan
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Common Shares subject to other 62,422 shares $34.49/(4)/ $2,152,934.78 $ 538
outstanding options
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Common Shares offered under the 200,000 shares $1.09/(3)/ $ 218,000.00 $ 55
2001 Employee Stock Purchase Plan
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Total 1,257,308 shares $1,732.00
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(1) Common Shares, without par value, offered by the Company pursuant to the
1996 Amended Stock Option Plan, option agreements with Messrs. Castleman,
Fersch, Kourkoumelis and Schultz and the 2001 Employee Stock Purchase
Plan.
(2) Based on the average exercise price of options granted under the 1996
Amended Stock Option Plan outstanding as of the date of the filing of this
registration statement.
(3) The proposed maximum offering price per share and the registration fee
were calculated in accordance with rule 457(c) and (h) based on the
average of the high and low prices for shares of the registrant's common
shares on October 23, 2001, as quoted by the Nasdaq National Market, which
was $1.09 per share.
(4) Based on the average exercise price of options granted pursuant to the
option agreements with Messrs. Castleman, Fersch, Kourkoumelis and Schultz
as of the date of this filing.
Page 1 of 7 pages. Exhibit Index begins at page II-6.
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PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with the Commission, are
incorporated herein by reference:
1. Our prospectus filed pursuant to Rule 424(b) under the Securities
Act of 1933 dated May 1, 2001.
2. Our Quarterly Reports on Form 10-Q for the periods ended April 1,
2001 and July 1, 2001.
3. The description of our securities contained in our Registration
Statement on Form 8-A filed with the Commission on April 10, 2001
under Section 12(g) of the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All documents filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date hereof and prior to the filing of a post-effective
amendment which indicates that all securities offered 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.
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act (the "Washington Act") authorize a court to award, or a
corporation's board of directors to grant, indemnification to directors and
officers on terms sufficiently broad to permit indemnification under certain
circumstances for liabilities arising under the Securities Act of 1933, as
amended (the "Securities Act"). Article 6 of our Amended and Restated Articles
of Incorporation and Article IX of our Bylaws together provide for
indemnification of our directors, officers, employees and agents to the maximum
extent permitted by Washington law. Our directors and officers also may be
indemnified against liability they may incur for serving in such capacity
pursuant to a liability insurance policy maintained by us for such purpose.
Section 23B.08.320 of the Washington Act authorizes a corporation to
limit a director's liability to the corporation or its shareholders for monetary
damages for acts or omissions as a director, except in certain circumstances
involving intentional misconduct, self-dealing or illegal corporate loans or
distributions, or any transaction from which the director personally receives a
benefit in money, property or services to which the director is not legally
entitled. Article 6 of our Amended and Restated Articles of Incorporation
contains provisions implementing, to the fullest extent permitted by Washington
law, such limitations on a director's liability to us and our shareholders.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted for directors, officers or persons controlling us pursuant
to the foregoing provisions, we have been informed that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not Applicable.
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Item 8. Exhibits.
Exhibit Number Exhibit
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4.1/(1)/ 1996 Amended Stock Option Plan
4.2/(2)/ 2001 Employee Stock Purchase Plan
4.3 Amended and Restated Stock Option Agreement with Peter Castleman
4.4 Amended and Restated Stock Option Agreement with Richard Fersch
4.5 Amended and Restated Stock Option Agreement with Dan Kourkoumelis
4.6 Amended and Restated Stock Option Agreement with Howard Schultz
5.1 Opinion of Dorsey & Whitney LLP
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants
23.4 Consent of Dorsey & Whitney LLP (Included in Exhibit 5.1)
24.1 Powers of Attorney (included on the signature pages)
____________________
(1) Incorporated by reference to Exhibit 10.1 to our Registration Statement on
Form S-1 (333-54922)
(2) Incorporated by reference to Exhibit 10.4 to our Registration Statement on
Form S-1 (333-54922)
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 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. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the change in volume and price represents no more than a 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 registration statement is on Form S-3, Form S-8, or Form F-3
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
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.
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(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 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) Insofar as indemnification for liabilities arising under the 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 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 of 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.
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Signatures
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
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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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in Seattle, Washington, on September 10,
2001.
BRIAZZ, INC.
(Registrant)
By: /s/ Victor D. Alhadeff
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Victor D. Alhadeff
Chief Executive Officer and Chairman
of the Board of Directors
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Victor D. Alhadeff and Tracy L. Warner, and each
of them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all 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 said attorneys-in-fact and agents and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all said
attorneys-in-fact and agents of them or their substitute or substitutes, may
lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
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Chief Executive Officer and
Chairman of the Board of
/s/ Victor D. Alhadeff Directors September 10, 2001
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Victor D. Alhadeff
President, Chief Operating
/s/ C. William Vivian Officer and Director September 10, 2001
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C. William Vivian
Vice President Finance, Chief
Financial Officer, Treasurer and
/s/ Tracy L. Warner Secretary September 10, 2001
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Tracy L. Warner
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Signature Title Date
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/s/ Richard Fersch Director September 8, 2001
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Richard Fersch
/s/ Dan Kourkoumelis Director September 9, 2001
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Dan Kourkoumelis
/s/ Paul Vigano Director September 12, 2001
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Paul Vigano
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EXHIBIT INDEX
Exhibit Number Exhibit Page
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4.1/(1)/ 1996 Amended Stock Option Plan
4.2/(2)/ 2001 Employee Stock Purchase Plan
4.3 Amended and Restated Stock Option Agreement with Peter Castleman
4.4 Amended and Restated Stock Option Agreement with Richard Fersch
4.5 Amended and Restated Stock Option Agreement with Dan Kourkoumelis
4.6 Amended and Restated Stock Option Agreement with Howard Schultz
5.1 Opinion of Dorsey & Whitney LLP
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants
23.4 Consent of Dorsey & Whitney LLP (Included in Exhibit 5.1)
24.1 Powers of Attorney (included on the signature pages)
______________________
(1) Incorporated by reference to Exhibit 10.1 to our Registration Statement on
Form S-1 (333-54922)
(2) Incorporated by reference to Exhibit 10.4 to our Registration Statement on
Form S-1 (333-54922)
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