-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, P7tezAr/u1vn9BFeX4XUtNu90MzNNhmR0RByDTlOAC0hDuNaeVje+WcWPhtIYphb Q/Hqpd4sIEY1fBENH1JlWQ== 0001021408-98-000501.txt : 19980727 0001021408-98-000501.hdr.sgml : 19980727 ACCESSION NUMBER: 0001021408-98-000501 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980724 EFFECTIVENESS DATE: 19980724 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: OPTA FOOD INGREDIENTS INC /DE CENTRAL INDEX KEY: 0000883326 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS FOOD PREPARATIONS & KINDRED PRODUCTS [2090] IRS NUMBER: 043117634 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-59867 FILM NUMBER: 98671238 BUSINESS ADDRESS: STREET 1: 25 WIGGINS AVE CITY: BEDFORD STATE: MA ZIP: 01730 BUSINESS PHONE: 6172765100 MAIL ADDRESS: STREET 1: 25 WIGGINS AVENUE CITY: BEDFORD STATE: MA ZIP: 01730 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on July 24, 1998 Registration No. 333- ___________ ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 Registration Statement Under The Securities Act Of 1933 OPTA FOOD INGREDIENTS, INC. --------------------------- (Exact name of Registrant as specified in its charter) Delaware 04-3117634 ------------------------------------- ----------------------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 25 Wiggins Avenue, Bedford, Massachusetts 01730 ----------------------------------------------- (Address of Principal Executive Offices) OPTA FOOD INGREDIENTS, INC. 1992 Employee, Director and Consultant Stock Option Plan -------------------------------------------------------- (Full title of the plan) Scott A. Kumf, Chief Financial Officer and Treasurer Opta Food Ingredients, Inc. 25 Wiggins Avenue Bedford, MA 01730 ---------------------- (Name and address of agent for service) (781) 276-5100 ---------------------- (Telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed Maximum Securities to be Amount to be Maximum Offering Aggregate Amount of Registered Registered (1) Price Per Share (2) Offering Price (2) Registration Fee - -------------------- -------------------- ------------------------- ------------------ --------------------- Common Stock, $.01 par value 250,000 $5.31 $1,327,500 $391.61
------------------------------------------------------------------------------- (1) Subject to adjustment in accordance with certain anti-dilution and other provisions of the 1992 Employee, Director and Consultant Stock Option Plan (the "Plan"). Accordingly, pursuant to Rule 416 under the Securities Act of 1933, as amended (the "Securities Act"), this Registration Statement covers, in addition to the number of shares stated above, an indeterminable number of shares which may be subject to grant or otherwise issuable after the operation of any such anti-dilution and other provisions. (2) This calculation is made solely for the purpose of determining the registration fee pursuant to the provisions of Rule 457(h) under the Securities Act on the basis of the average high and low sale prices per share on the Nasdaq National Market System as of a date (July 17, 1998) within 5 business days prior to filing this Registration Statement. PART I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS In accordance with the instructional Note to Part I of Form S-8 as promulgated by the Securities and Exchange Commission (the "Commission"), the information specified by Part I of Form S-8 has been omitted from this Registration Statement on Form S-8 for offers of Common Stock of Opta Food Ingredients, Inc. (the "Registrant") pursuant to the Plan. PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. - ------------------------------------------------- The following documents filed by the Registrant with the Commission are incorporated herein by reference: (a) The Registrant's Annual Report on Form 10-K for the year ended December 31, 1997 (Commission File Number 0-19811). (b) The Registrant's quarterly report on Form 10-Q for the quarter ended March 31, 1998 (Commission File Number 0-19811). (c) The description of the Common Stock filed with the Commission included in the Registrant's Registration Statement on Form 8-A under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), filed with the Commission on January 23, 1992, including any amendment or report filed for the purpose of updating such description. All reports and other documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities covered by this Registration Statement have been sold or which deregisters all such securities then remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such reports and documents. ITEM 4. DESCRIPTION OF SECURITIES. - ----------------------------------- Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. - ------------------------------------------------ The validity of the issuance of the shares of common stock registered under this registration statement has been passed upon for the Company by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. Members of Mintz, Levin, Glovsky and Popeo, P.C. owned an aggregate of 500 shares of common stock of the Company. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. - --------------------------------------------------- Incorporated herein by reference from Registration Statement on Form S-1, No. 33-45700. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. - --------------------------------------------- Not applicable. -2- Item 8. Exhibits. - ------------------ Exhibit No. Description - ----------- ----------- (4.1) Form of Common Stock Certificate (previously filed as Exhibit 4.2 to the Registrant's Registration Statement on Form S-1, Registration No. 33-45700, as amended, and incorporated herein by reference). (4.2) Amended and Restated Certificate of Incorporation of the Registrant (filed as Exhibit 4.2 to Registrant's Registration Statement on Form S-8, Registration No. 33-93518, and incorporated herein by reference). (4.3) Restated By-Laws of the Registrant (previously filed as Exhibit 3.4 to the Registrant's Registration Statement on Form S-1, Registration No. 33-45700, as amended, and incorporated herein by reference). (5) Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. with respect to the legality of the original issuance of securities being registered (filed herewith). (23.1) Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in opinion of counsel filed as Exhibit 5). (23.2) Consent of PricewaterhouseCoopers LLP (filed herewith). (24) Power of Attorney to file future amendments (included in the signature page of this Registration Statement). 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; (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, represents 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) (Section 230.424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than a 20% 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; -3- Provided, however, that paragraphs (a)(1)(i) and (a)(1)(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 Securities Exchange Act of 1934 that are incorporated by reference in this 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) 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 Securities Exchange Act of 1934 that is incorporated by reference in this 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. (c) 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. -4- SIGNATURES The Registrant. 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 Bedford, Massachusetts, on July 22, 1998. OPTA FOOD INGREDIENTS, INC. By: /s/ Lewis C. Paine, III ----------------------- Lewis C. Paine, III Chairman of the Board, President and Chief Executive Officer Each person whose signature appears below constitutes and appoints Lewis C. Paine, III, and Scott A. Kumf, and each of them, his true and lawful attorneys- in-fact and agents, with full power of substitution and resubstitution in each of them, for him and in his name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8 of Opta Food Ingredients, Inc., 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 or 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 that said attorneys-in- fact and agents or any of them or their or his substitute or substitutes may lawfully do or cause to be done by virtue hereof. 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 dates indicated. /s/ Lewis C. Paine, III Chairman of the Board, President, July 22, 1998 - ----------------------------- Chief Executive Officer and Director Lewis C. Paine, III [Principal Executive Officer] /s/ Scott A. Kumf Chief Financial Officer, Vice President July 22, 1998 - ----------------------------- Administration and Treasurer Scott A. Kumf [Principal Financial and Accounting Officer] /s/ A.S. Clausi Director July 22, 1998 - ----------------------------- A.S. Clausi /s/ Anthony B. Evnin Director July 22, 1998 - ----------------------------- Anthony B. Evnin /s/ Harry Fields Director July 22, 1998 - ----------------------------- Harry Fields /s/ Glynn C. Morris Director July 22, 1998 - ----------------------------- Glynn C. Morris /s/ Charles W. Newhall, III Director July 22, 1998 - ----------------------------- Charles W. Newhall, III /s/ Frederic Stevenin Director July 22, 1998 - ----------------------------- Frederic Stevenin
-5-
Exhibit No. Description - ----------- ----------- (4.1) Form of Common Stock Certificate (previously filed as Exhibit 4.2 to the Registrant's Registration Statement on Form S-1, Registration No. 33-45700, as amended, and incorporated herein by reference). (4.2) Amended and Restated Certificate of Incorporation of the Registrant (filed as Exhibit 4.2 to Registrant's Registration Statement on Form S-8, Registration No. 33-93518, and incorporated herein by reference). (4.3) Restated By-Laws of the Registrant (previously filed as Exhibit 3.4 to the Registrant's Registration Statement on Form S-1, Registration No. 33-45700, as amended, and incorporated herein by reference). (5) Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. with respect to the legality of the original issuance of securities being registered. (23.1) Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in opinion of counsel filed as Exhibit 5). (23.2) Consent of PricewaterhouseCoopers LLP (filed herewith). (24) Power of Attorney to file future amendments (included in the signature page of this Registration Statement).
-6- EX-5 2 OPINION OF MINTZ, LEVIN EXHIBIT 5 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. One Financial Center Boston, Massachusetts 02111 701 Pennsylvania Avenue, N.W. Telephone: 617/542-6000 Washington, D.C. 20004 Telex: 94-0198 Telephone: 202/434-7300 Fax: 617/542-2241 Fax: 202/434-7400 Direct Dial Number July 22, 1998 Opta Food Ingredients, Inc. 25 Wiggins Avenue Bedford, Massachusetts 01730 Gentlemen: We have acted as counsel to Opta Food Ingredients, Inc., a Delaware corporation (the "Company"), in connection with the preparation and filing with the Securities and Exchange Commission of a Registration Statement on Form S-8 (the "Registration Statement"), pursuant to which the Company is registering the issuance under the Securities Act of 1933, as amended, of a total of 250,000 shares (the "Shares") of its common stock, $.01 par value per share (the "Common Stock"). This opinion is being rendered in connection with the filing of the Registration Statement. All capitalized terms used herein and not otherwise defined shall have the respective meanings given to them in the Registration Statement. In connection with this opinion, we have examined the Company's Amended and Restated Certificate of Incorporation and Restated By-laws, both as currently in effect; such other records of the corporate proceedings of the Company and certificates of the Company's officers as we have deemed relevant; and the Registration Statement and the exhibits thereto. In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such copies. Based upon the foregoing, we are of the opinion that (i) the Shares have been duly and validly authorized by the Company and (ii) the Shares, when sold, will have been duly and validly issued, fully paid and non-assessable shares of the Common Stock, free of preemptive rights. Our opinion is limited to the General Corporation Laws of the State of Delaware and we express no opinion with respect to the laws of any other jurisdiction. No opinion is expressed herein with respect to the qualification of the Shares under the securities or blue sky laws of any state or any foreign jurisdiction. We understand that you wish to file this opinion as an exhibit to the Registration Statement, and we hereby consent thereto. Very truly yours, /s/ Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. EX-23.2 3 CONSENT OF PRICEWATERHOUSE EXHIBIT 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 10, 1998 appearing on page 11 of Opta Food Ingredients, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1997. PricewaterhouseCoopers LLP Boston, Massachusetts July 24, 1998 -----END PRIVACY-ENHANCED MESSAGE-----