-----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, WWneut3zvE/XKT2ZOd9+nbqMee3+fTh9AkOcrBAvUN4NK7VAxpKndSDlmoxu1tel YqRx/1/Nr7EVDTk0a6HYcQ== 0000807882-97-000005.txt : 19970512 0000807882-97-000005.hdr.sgml : 19970512 ACCESSION NUMBER: 0000807882-97-000005 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970509 EFFECTIVENESS DATE: 19970509 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: FOODMAKER INC /DE/ CENTRAL INDEX KEY: 0000807882 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 952698708 STATE OF INCORPORATION: DE FISCAL YEAR END: 0929 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-26781 FILM NUMBER: 97599098 BUSINESS ADDRESS: STREET 1: 9330 BALBOA AVE CITY: SAN DIEGO STATE: CA ZIP: 92123-1516 BUSINESS PHONE: 6195712121 MAIL ADDRESS: STREET 1: PO BOX 783 CITY: SAN DIEGO STATE: CA ZIP: 92112-4126 S-8 1 As filed with the Securities and Exchange Commission on May 9, 1997 Registration No. 333- _______________________________________________________________________________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _______________ FORM S-8 Registration Statement Under The Securities Act of 1933 _______________ FOODMAKER, INC. (Exact name of registrant as specified in its charter) DELAWARE 95-2698708 (State or other jurisdiction (I.R.S. Employer of incorporation or Identification organization) Number) 9330 Balboa Avenue San Diego, California 92123 (Address of principal executive offices) (Zip code) _______________ Foodmaker, Inc. Amended and Restated 1992 Employee Stock Incentive Plan (Full title of the Plan) _______________ LAWRENCE E. SCHAUF, Esq. Executive Vice President and Secretary 9330 Balboa Avenue San Diego, California 92123 (Name and address of agent for service) (619)571-2435 (Telephone number, including area code, of agent for service) _______________ Copies to: ANDREW E. BOGEN, Esq. Gibson, Dunn & Crutcher LLP 333 So. Grand Avenue Los Angeles, California 90071-3197 (213) 229-7159 _______________ CALCULATION OF REGISTRATION FEE _______________________________________________________________________________ Title of Proposed maximum Proposed maximum securities to Amount to be offering price aggregate Amount of be registered registered(1) per share(2) offering price(2) registration fee _______________________________________________________________________________ Common Stock, par value $.01 1,9000,000 $11.00 $20,900,000 $6,333.33 per share shares _______________________________________________________________________________ (1) Pursuant to rule 416, there are also being registered hereunder such indeterminate number of shares of Common Stock as may be issued pursuant to the antidilution provisions of the Plan. (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457 under the Securities Act of 1933, based on the average of the high and low prices of the Company's Common Stock on the New York Stock Exchange on May 2, 1997. _______________________________________________________________________________ PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT This Registration Statement relates to the Foodmaker, Inc. 1992 Employee Stock Incentive Plan, which was amended and restated by the Registrant's Board of Directors on October 11 and December 18, 1996 (the "Plan"), subject to stockholder approval. Such approval was obtained at the Registrant's Annual Meeting of Stockholders on February 14, 1997. The Plan was amended and restated to: (i) increase the number of shares available for Awards (as defined in the Plan) under the original plan by 1,900,000 to 3,775,000, and (ii) include technical changes, primarily to conform the Plan to the deductibility requirements of Section 162(m) of the Internal Revenue Code of 1986, as amended. Registrant's Registration Statement (Registration No. 33-51490) filed with the Securities and Exchange Commission on August 31, 1992 relates to the initial 1,875,000 shares issuable under the plan. Item 3. Incorporation of Documents by Reference The following documents which have been filed by Foodmaker, Inc., a Delaware corporation ("Foodmaker" or the "Company"), with the Securities and Exchange Commission (the "Commission") are incorporated by reference in this Registration Statement: (1) The Company's Annual Report on Form 10-K for the fiscal year ended September 29, 1996. (2) The Company's Quarterly Report on Form 10-Q for the quarter ended January 19, 1997. (3) The description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A (File No. 1-9390) filed February 11, 1992. In addition, all documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended ("the Exchange Act") subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereunder have been sold or which deregisters all such securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the respective dates of filing of such documents. Any statement contained herein or in a document all or part of which is incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed documents which also is or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. -2- Item 6. Indemnification of Directors and Officers. Section 145 of the Delaware General Corporation Law makes provision for the indemnification of officers and directors in terms sufficiently broad to indemnify officers and directors of the Company under certain circumstances from liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933. The Certificate of Incorporation and Bylaws of the Company provide for indemnification of officers and directors against costs and expenses incurred in connection with any action or suit to which such person is a party to the full extent permitted by the Delaware General Corporation Law. Item 8. Exhibits. Number Description ------ ----------- 4.1 Foodmaker, Inc. Amended and Restated 1992 Employee Stock Incentive Plan 4.2 Restated Certificate of Incorporation(1) 4.3 Restated Bylaws(2) 5 Opinion of Gibson, Dunn & Crutcher LLP 23.1 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5) 23.2 Consent of KPMG Peat Marwick LLP 24 Power of Attorney(3) - ------------------ (1) Previously filed and incorporated herein by reference from Registrant's Annual Report of Form 10-K for the fiscal year ended September 29, 1996. (2) Previously filed and incorporated herein by reference from Registrant's Current Report on Form 8-K as of July 26, 1996. (3) Included in this Registration Statement at page 5. 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, represent a fundamental change in the information set forth in the Registration Statement; -3- (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)(l)(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 Securities Exchange Act of 1934 that are incorporated by reference in the 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. (4) If the registrant is a foreign private issuer, to file a post-effective amendment to the Registration Statement to include any financial statements required by Rule 3-19 of Regulation S-X at the start of any delayed offering or throughout a continuous 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 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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. (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 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 San Diego, State of California, on the 9th of May, 1997. FOODMAKER, INC. By: ROBERT J. NUGENT ------------------------- Robert J. Nugent President, Chief Executive Officer and Director POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Lawrence E. Schauf, Robert J. Nugent and Charles W. Duddles, and each or any of them, his true and lawful attorneys-in-fact and agents with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all 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 that said attorneys-in-fact and agents, or any of them, 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 below by the following persons in the capacities and on the dates indicated. Name and Signature Title Date - ------------------ ----- ---- JACK W. GOODALL Chairman of the Board May 9, 1997 - ----------------------- Jack W. Goodall ROBERT J. NUGENT President, Chief Executive Officer May 9, 1997 - ------------------------ and Director Robert J. Nugent -5- CHARLES W. DUDDLES Executive Vice President, May 9, 1997 - ----------------------- Chief Administrative Officer Charles W. Duddles Chief Financial Officer and Director DARWIN J. WEEKS Vice President, Controller May 9, 1997 - ----------------------- and Chief Accounting Officer Darwin J. Weeks MICHAEL E. ALPERT Director May 9, 1997 - ---------------------- Michael E. Alpert JAY W. BROWN Director May 9, 1997 - ---------------------- Jay W. Brown PAUL T. CARTER Director May 9, 1997 - ---------------------- Paul T. Carter Director May _, 1997 - ---------------------- Edward Gibbons L. ROBERT PAYNE Director May 9, 1997 - ---------------------- L. Robert Payne -6- EXHIBIT INDEX Number Description ------ ----------- 4.1 Foodmaker, Inc. Amended and Restated 1992 Employee Stock Incentive Plan 4.2 Restated Certificate of Incorporation(1) 4.3 Restated Bylaws(2) 5 Opinion of Gibson, Dunn & Crutcher LLP 23.1 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5) 23.2 Consent of KPMG Peat Marwick LLP 24 Power of Attorney(3) - ------------------ (1) Previously filed and incorporated herein by reference from Registrant's Annual Report of Form 10-K for the fiscal year ended September 29, 1996. (2) Previously filed and incorporated herein by reference from Registrant's Current Report on Form 8-K as of July 26, 1996. (3) Included in this Registration Statement at page 5. -7- EX-4.1 2 AMENDED AND RESTATED 1992 EMPLOYEE STOCK INCENTIVE PLAN Exhibit 4.1 FOODMAKER INC. AMENDED AND RESTATED 1992 EMPLOYEE STOCK INCENTIVE PLAN ---------------------------------- Section 1. Purpose of Plan. The purpose of this 1992 Employee Stock Incentive Plan ("Plan") of Foodmaker, Inc. (the "Company"), is to enable the Company and its subsidiaries to attract, retain and motivate their employees by providing for or increasing the proprietary interests of such employees in the Company. Section 2. Persons Eligible under Plan. Any person, including any director of the Company, who is an employee of the Company or any of its subsidiaries (an "Employee") shall be eligible to be considered for the grant of Awards (as hereinafter defined) hereunder. Section 3. Awards. (a) The Committee (as hereinafter defined), on behalf of the Company, is authorized under this Plan to enter into any type of arrangement with an Employee that is not inconsistent with the provisions of this Plan and that by its terms, involves or might involve the issuance of (i) shares of common stock of the Company ("Common Shares"), (ii) an option, warrant, convertible security, stock appreciation right or similar right with an exercise or conversion privilege at a price related to the Common Shares, or (iii) any other security or benefit with a value derived from the value of the Common Shares. The entering into of any such arrangement is referred to herein as the "grant" of an "Award." (b) Awards are not restricted to any specified form or structure and may include, without limitation, sales or bonuses of stock, restricted stock, stock options, reload stock options, stock purchase warrants, other rights to acquire stock, securities convertible into or redeemable for stock, stock appreciation rights, limited stock appreciation rights, phantom stock, dividend equivalents, performance units or performance shares, and an Award may consist of one such security or benefit, or two or more of them in tandem or in the alternative. (c) Common Shares may be issued pursuant to an Award for any lawful consideration as determined by the Committee, including, without limitation, services rendered by the recipient of such Award. (d) Subject to the provisions of this Plan, the Committee, in its sole and absolute discretion, shall determine all of the terms and conditions of each Award granted under this Plan, which terms and conditions may include, among other things: (i) a provision permitting the recipient of such Award, including any recipient who is a director or officer of the Company, to pay the purchase price of the Common Shares or other property issuable pursuant to such Award, or such recipient's tax withholding obligation with respect to such issuance, in whole or in part, by any one or more of the following: (A) the delivery of previously owned shares of capital stock of the Company (including "pyramiding") or other property; or (B) the delivery of a promissory note, the terms and conditions of which shall be determined by the Committee; (ii) a provision accelerating the receipt of benefits pursuant to such Award upon the occurrence of specified events, including, without limitation, a change of control of the Company, an acquisition of a specified percentage of the voting power of the Company, the dissolution or liquidation of the Company, a sale of substantially all of the property and assets of the Company or an event of the type described in Section 7 hereof; or (iii) any provision required in order for such Award to qualify as an incentive stock option under Section 422 of the Internal Revenue Code (an "Incentive Stock Option"). (iv) any provision required in order for such Award to qualify as "Performance-Based Compensation" as described in Section 162(m) of the Internal Revenue Code (the "Code") and the regulations thereunder. If the amount of compensation an Employee will receive under any Award is not based solely on an increase in the value of Common Stock after the date of grant or award, the Committee, in order to qualify an Award as Performance-Based Compensation, can condition the grant, award, vesting, or exercisability of such an award on the attainment of a pre-established, objective performance goal. For this purpose, a pre-established, objective performance goal may include one or more of the following performance criteria; (i) cash flow, (ii) earnings per share (including earnings before interest, taxes, and amortization), (iii) return on equity, (iv) total stockholder return, (v) return on capital, (vi) return on assets or net assets, (vii) income or net income, (viii) operating income or net operating income, (ix) operating margin, (x) return on operating revenue, and (xi) any other similar performance criteria contemplated by the regulations under Section 162(m) of the Code. Section 4. Stock Subject to Plan. (a) The maximum number of Common Shares that may be issued pursuant to Incentive Stock Options granted under this Plan is 3,775,000, subject to adjustment as provided in Section 7 hereof. (b) The maximum number of Common Shares that may be issued pursuant to all Awards (including Incentive Stock Options) granted under this Plan, other than Common Shares that are issued pursuant to Awards and subsequently reacquired by the Company pursuant to the terms and conditions of such Awards, is 3,775,000, subject to adjustment as provided in Section 7 hereof (such maximum number, as so adjusted, shall be referred to herein as the "Share Limitation"). (c) All outstanding options to purchase shares of common stock, $.01 par value per share, of PDV Holdings, Inc. ("PDV") shall be converted into options to purchase common Shares (with the same rights, privileges and exercise prices as applied to such options pursuant to the terms of any Stock Option Agreements between PDV and the holders of such options) at such time as the proposed merger of PDV with and into the Company (the "Merger") is consummated. All such options, to the extent that they remain unexercised at the effective time of said Merger, shall be deemed Awards that have been granted under this Plan and the maximum number of Common Shares that may be issued pursuant to all Awards granted under this Plan shall include Common Shares issued pursuant to said options, other than Common Shares that are issued pursuant to said options and subsequently reacquired by the Company pursuant to the terms and conditions of said options. (d) No Award may be granted under this Plan unless, on the date of grant, the sum of (i) the maximum number of Common Shares issuable at any time pursuant to such award, plus (ii) the number of Common Shares that have previously been issued pursuant to Awards granted under this Plan (including Common Shares issued pursuant to Awards described in (c), above), other than Common Shares that have been issued pursuant to Awards and subsequently reacquired by the Company pursuant to the terms and conditions of such Awards, plus (iii) the maximum number of Common Shares that may be issued at any time thereafter pursuant to Awards granted under this Plan (including common Shares that may be issued at any time thereafter pursuant to Awards described in (c), above) that are outstanding on such date, does not exceed the Share Limitation. (e) Notwithstanding any other provision of this Plan, no Employee shall be granted Awards with respect to more than 400,000 shares of Common Stock in any one calendar year; provided, however, that this limitation shall not apply if it is not required in order for the compensation attributable to Awards hereunder to qualify as Performance-Based Compensation. The limitation set forth in this Section 4(e) shall be subject to adjustment as provided in Section 7, but only to the extent such adjustments would not affect the status of compensation attributable to Awards hereunder as Performance-Based Compensation. Section 5. Duration of Plan. No awards shall be granted under this Plan after January 3, 2002. Although Common Shares may be issued after January 3, 2002, pursuant to Awards granted prior to such date, no Common Shares shall be issued under this Plan after January 3, 2012. Section 6. Administration of Plan. (a) This Plan shall be administered by a committee (the "Committee") of the Board of Directors of the Company (the "Board") consisting of two or more directors, each of whom is a "Non-Employee Director" (as such term is defined in Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as such rule may be amended from time to time). In addition, if Awards are to be made to persons subject to Section 162(m) of the Code and such awards are intended to constitute Performance-Based Compensation, then each of the Committee's members shall also be an "outside director," as such term is defined in the regulations under Section 162(m) of the Code. (b) Subject to the provisions of this Plan, the Committee shall be authorized and empowered to do all things necessary or desirable in connection with the administration of this Plan, including, without limitation, the following: (i) adopt, amend and rescind rules and regulations relating to this Plan; (ii) determine which persons meet the requirements of Section 2 hereof for eligibility under this Plan and to which of such eligible persons, if any, Awards shall be granted hereunder; (iii) grant Awards to eligible persons and determine the terms and conditions thereof, including the number of Common Shares issuable pursuant thereto; (iv) determine whether, and the extent to which, adjustments are required pursuant to Section 7 hereof; and (v) interpret and construe this Plan and the terms and conditions of any Award granted hereunder. Section 7. Adjustments. If the outstanding securities of the class then subject to this Plan are increased, decreased or exchanged for or converted into cash, property or a different number or kind of securities, or if cash, property or securities are distributed in respect of such outstanding securities, in either case as a result of a reorganization, merger, consolidation, recapitalization, restructuring, reclassification, dividend (other than a regular, quarterly cash dividend) or other distribution, stock split, reverse stock split or the like, or if substantially all of the property and assets of the Company are sold, then, unless such event shall cause a termination of the Incentive Stock Options or other Awards, or the terms of such transaction shall provide otherwise, the Committee shall make appropriate and proportionate adjustments in (a) the number and type of shares or other securities or cash or other property that may be acquired pursuant to Incentive Stock Options and other Awards theretofore granted under this Plan and (b) the maximum number and type of shares or other securities that may be issued pursuant to Incentive Stock Options and other Awards thereafter granted under this Plan. Section 8. Amendment and Termination of Plan. The Board may amend or terminate this Plan at any time and in any manner; provided, however, that no such amendment or termination shall deprive the recipient of any Award theretofore granted under this Plan, without the consent of such recipient, of any of his or her rights thereunder or with respect thereto. Section 9. Effective Date of Plan. This Plan shall be effective as of January 3, 1992, the date upon which it was approved by the Board; provided, however, that no Common Shares may be issued under the Plan until it has been approved by the affirmative vote of the holders of a majority of the outstanding Common Shares in accordance with applicable state laws. EX-5 3 OPINION OF GIBSON, DUNN & CRUTCHER LLP Exhibit 5 [GIBSON, DUNN & CRUTCHER LLP LETTERHEAD] May 8, 1997 Foodmaker, Inc. 9330 Balboa Avenue San Diego, California 92123 Re: Registration Statement on Form S-8 ---------------------------------- Gentlemen: We have acted as counsel to Foodmaker, Inc., a Delaware corporation (the "Company"), in connection with the preparation of a Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission (the "Commission") with respect to the registration under Securities Act of 1933, as amended (the "Act"), of 1,900,000 shares of Common Stock, $.01 par value (the "Shares"), of the Company which have been reserved for issuance from time-to-time pursuant to awards granted and to be granted pursuant to the Company's Amended and Restated 1992 Employee Stock Incentive Plan (the "Plan"). We are familiar with the corporate actions taken and to be taken by the Company in connection with the authorization, issuance and sale of the Shares and have made such other legal and factual inquiries as we deem necessary for the purpose of rendering this opinion. We have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, and the conformity to original documents of all documents submitted to us a copies and the authenticity of the originals of such copied documents. We have examined, among other things, the Company's Certificate of Incorporation and Bylaws, the Plan and related agreements, and records of corporate proceedings and other actions taken and proposed to be taken by the Company in connection with the authorization, issuance and sale of the Shares pursuant to awards Foodmaker, Inc. May 8, 1997 Page 2 granted under the Plan. Based on the foregoing and in reliance thereon, it is our opinion that the Shares, when issued and paid for pursuant to awards granted, and, if applicable, exercised in accordance with the provisions of the Plan and related agreements, will be duly authorized, validly isued, fully paid and non-assessable. The Company is incorporated under the laws of the State of Delaware. We are not admitted to practice in Delaware. However, we are generally familiar with the Delaware General Corporation Law and have made such review thereof as we consider necessary for the purpose of rendering this opinion. Subject to the foregoing, this opinion is limited to Delaware, California and federal law. This opinion may not be quoted in whole or in part without the prior written consent of this Firm. We hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement and to the reference to our Firm under the heading "Legal Matters" contained in the related Prospectus. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Act or the General Rules and Regulations of the Commission. Very truly yours, GIBSON, DUNN & CRUTCHER LLP EX-23.2 4 CONSENT OF KPMG PEAT MARWICK LLP Exhibit 23.2 The Board of Directors Foodmaker, Inc.: We consent to the use of our report incorporated herein by reference. KPMG PEAT MARWICK LLP San Diego, California May 7, 1997 -----END PRIVACY-ENHANCED MESSAGE-----