-----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, SLTf+l8itCO8piyla3R7vs90ynYGoWUyJk9Xr0F+XMStx7bEklHz6OBAYBjnQT/6 BUVNUavw+sU/JOXqILGjNQ== 0000807882-99-000010.txt : 19990823 0000807882-99-000010.hdr.sgml : 19990823 ACCESSION NUMBER: 0000807882-99-000010 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990820 EFFECTIVENESS DATE: 19990820 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: SEC FILE NUMBER: 333-85669 FILM NUMBER: 99696865 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 August 20, 1999 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 (I.R.S. Employer jurisdiction of Identification Number) incorporation or organization) 9330 Balboa Avenue San Diego, California 92123-1516 (Address of principal executive offices) (Zip code) --------------- Foodmaker, Inc. Amended and Restated Non-Employee Director Stock Option Plan (Full title of the Plan) --------------- LAWRENCE E. SCHAUF, Esq. Executive Vice President and Secretary 9330 Balboa Avenue San Diego, California 92123-1516 (Name and address of agent for service) (858) 571-2435 (Telephone number, including area code, of agent for service)(8) ---------------- Copies to: ANDREW E. BOGEN, Esq. Gibson, Dunn & Crutcher LLP 333 So. Grand Avenue Los Angeles, California 90071-3197 (213) 229-7000 --------------- CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------- Proposed Proposed Title of maximum maximum securities offering aggregate Ammount of to be Amount to be price offering registration registered registered(1) per share(2) price(2) fee - ------------------------------------------------------------------------------- Common Stock, par value $.01 650,000 per share shares $23.0625 $14,990,625 $4,168.00 (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 August 13, 1999. - ------------------------------------------------------------------------------- PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT 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 27, 1998; (2) The Company's Quarterly Report on Form 10-Q for the quarterly periods ended January 17, 1999, April 11, 1999 and July 4, 1999; (3) The Company's Current Reports on Form 8-K dated April 1, 1999 and July 20, 1999; and (4) 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 and 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. 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. -2- Item 8. Exhibits. Number Description ------ ----------- 4.1 Foodmaker, Inc. Amended and Restated Non- Employee Director Stock Option 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; (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)(l)(i) and (a)(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 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. (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 20th of August, 1999. 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 August 20, 1999 - -------------------- Jack W. Goodall ROBERT J. NUGENT President, Chief Executive August 20, 1999 - -------------------- Officer and Director Robert J. Nugent CHARLES W. DUDDLES Executive Vice President, August 20, 1999 - -------------------- Chief Financial Officer, Charles W. Duddles Chief Administrative Officer and Director -5- DARWIN J. WEEKS Vice President, August 20, 1999 - -------------------- Controller and Chief Darwin J. Weeks Accounting Officer MICHAEL E. ALPERT Director August 20, 1999 - -------------------- Michael E. Alpert - -------------------- Director August ___, 1999 Jay W. Brown PAUL T. CARTER Director August 20, 1999 - -------------------- Paul T. Carter MURRAY H. HUTCHINSON Director August 20, 1999 - -------------------- Murray H. Hutchison - -------------------- Director August ___, 1999 Edward Gibbons L. ROBERT PAYNE Director August 20, 1999 - -------------------- L. Robert Payne -6- EXHIBIT INDEX Number Description - ------ ----------- 4.1 Foodmaker, Inc. Amended and Restated Non-Employee Director Stock Option 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 FOODMAKER, INC. NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN Exhibit 4.1 FOODMAKER, INC. NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN ORIGINALLY ADOPTED FEBRUARY 17, 1995 AMENDED AND RESTATED NOVEMBER 12, 1998 1. Purpose of the Plan. Under this Non-Employee Director Stock Option Plan (the "Director Plan") of Foodmaker, Inc., a Delaware corporation (the "Company"), options may be granted to eligible persons, as set forth in Section 4, to purchase shares of the Company's common stock ("Common Stock"). This Director Plan is designed to promote the long-term growth and financial success of the Company by enabling the Company to attract, retain and motivate such persons by providing for or increasing their proprietary interest in the Company. 2. Effective Date. This Director Plan shall be in effect commencing on February 17, 1995, subject to approval by the Company's stockholders. Options may not be granted more than ten years after the date of stock holder approval of this Director Plan or termination of this Director Plan by the Board of Directors of the Company (the "Board"), whichever is earlier. 3. Plan Operation. This Director Plan is intended to meet the requirements of Rule 16b-3(c)(2)(ii) adopted under the Securities Exchange Act of 1934(or its successor) and accordingly is intended to be self-governing. To this end, this Director Plan requires no discretionary action by any administrative body with regard to any transaction under this Director Plan. To the extent, if any, that any questions of interpretation arise, these shall be resolved by the Board. 4. Eligible Persons. The persons eligible to receive a grant of non-qualified stock options hereunder are any Director of the Board who on the date of said grant is not an employee of the Company or a subsidiary of the Company. For purposes of this Section 4, a person shall not be considered an employee solely by reason of serving as Chairman of the Board. 5. Stock Subject to Director Plan. The maximum number of shares that my be subject to options granted hereunder shall be 650,000 shares of Common Stock, subject to adjustments under Section 6. Shares of Common Stock subject to the unexercised portions of any options granted under this Director Plan which expire, terminate or are canceled may again be subject to options under this Director Plan. 6. Adjustments. If the outstanding shares of stock of the class then subject to this Director Plan are increased or decreased, or are changed into or exchanged for a different number or kind of shares or securities, as a result of one or more reorganizations, recapitalizations, stock splits, reverse stock splits, stock dividends, spin-offs and the like, appropriate adjustments shall be made in the number and/or type of shares or securities for which options may thereafter be granted under this Director Plan and for which options then outstanding under this Director Plan may thereafter be exercised. Any such adjustments in outstanding options shall be made without changing the aggregated exercise price applicable to the unexercised portions of such options. 7. Stock Options. Commencing February 17, 1995 and on the date of each annual stockholder meeting thereafter at which such non-employee director has been re-elected to the Board, such non-employee director will be automatically granted a non-qualified stock option to purchase 10,000 shares of Common Stock. The per share exercise price of each option will be equal to the current market price per share of Common Stock on the date of grant. The current market price per share of Common Stock on the date of grant shall be not less than the higher of (a) the Quoted Price per share for such stock on the business day immediately preceding the date of grant or (b) the average of the Quoted Prices of the Common Stock for 30 consecutive trading days commencing 45 trading days before the date of grant. The "Quoted Price" of the Common Stock shall be the last reported sales price of the Common Stock as reported by NASDAQ, National Market System, or if the Common Stock is listed on a securities exchange, the last reported sales price of the Common Stock on such exchange which shall be for consolidated trading if applicable to such exchange, or if neither so reported or listed, the last reported bid price of the Common Stock. In the absence of one or more such quotations, the Board shall determine the current market price on the basis of such information as it in good faith considers appropriate. Each option will have a term of ten years and shall become exercisable in full six months after the date of grant. If on any date upon which options are to be granted under this Director Plan the number of shares of Common Stock remaining available under the Director Plan are less than the number of shares required for all grants to be made on such date, then options to purchase a proportionate amount of such available number of shares of Common Stock shall be granted to each eligible non-employee director. 8. Documentation of Grants. Awards made under this Director Plan shall be evidenced by written agreements or such other appropriate documentation as the Board shall prescribe. The Board need not require the execution of any instrument or acknowledgment of notice of an award under this Director Plan, in which case acceptance of such award by the respective optionee will constitute agreement to the terms of the award. 9. Nontransferability. Any option granted under this Director Plan shall be its terms be nontransferable by the optionee otherwise than by will or the laws of descent and distribution, and shall be exercisable, during the optionee's lifetime, only by the optionee. 10. Amendment and Termination. The Board may alter, amend, suspend, or terminate this Director Plan, provided that no such action shall deprive any optionee, without his or her consent, of any option granted to the optionee pursuant to this Director Plan or of any of his or her rights under such option and provided further that the provisions of this Director Plan designating persons eligible to participate in the Director Plan and specifying the amount, exercise price and timing of grants under the Director Plan shall not be amended more than once every six months other than to comport with changes in the Internal Revenue Code, the Employee Retirement Income Security Act, or the rules thereunder. 11. Termination of Directorship. Notwithstanding Section 7 above, all options granted hereunder and held by non-employee directors as of the date of cessation of service as a director may be exercised by the non- employee director or his or her heirs or legal representatives until the earlier of the tenth anniversary of the date of grant or the expiration of ninety days after the date of cessation of such service. 12. Manner of Exercise. All or a portion of an exercisable option shall be deemed exercised upon delivery to the Secretary of the Company at the Company's principal office all of the following: (i) a written notice of exercise specifying the number of shares to be purchased signed by the non- employee director or other person then entitled to exercise the option, (ii) full payment of the exercise price for such shares by any of the following or combination thereof (a) cash, (b) certified or cashier's check payable to the order of the Company, or (c) the delivery of whole shares of the Company's Common Stock owned by the option holder and valued at the closing market price on the business day prior to the date of exercise, (iii) such representations and documents as the Board, in its sole discretion, deems necessary or advisable to effect compliance with all applicable provisions of the Securities Act of 1933, as amended, and any other federal or state securities laws or regulations, (iv) in the event that the option shall be exercised by any person or persons other than the non-employee director, appropriate proof of the right of such person or persons to exercise the option, and (v) such representations and documents as the Board, in its sole discretion, deems necessary or advisable. 13. Compliance with Law. Common Stock shall not be issued upon exercise of an option granted under this Director Plan unless and until counsel for the Company shall be satisfied that any conditions necessary for such issuance to comply with applicable federal, state or local tax, securities or other laws or rules or applicable securities exchange requirements have been fulfilled. IN TESTIMONY WHEREOF, Foodmaker, Inc. has executed this Director Plan by its officers thereunto duly authorized. EX-5 3 OPINION OF GIBSON, DUNN, & CRUTCHER Exhibit 5 [GIBSON, DUNN & CRUTCHER LLP LETTERHEAD] August 20, 1999 (213) 229-7000 C 30302-00001 Foodmaker, Inc. 9330 Balboa Avenue San Diego, California 92123 Re: Foodmaker, Inc. -- Amended and Restated Non-Employee Director Stock Option Plan Ladies and 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 650,000 shares of Common Stock, $.01 par value (the "Shares"), of the Company, issuable pursuant to awards granted and to be granted pursuant to the Company's Amended and Restated Non-Employee Director Stock Option 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 as copies and the authenticity of the originals of such copied documents. 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 issued, fully paid and non-assessable. Foodmaker, Inc. August 20, 1999 Page 2 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 and federal law. 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. Sincerely, /s/ Gibson, Dunn & Crutcher LLP GIBSON, DUNN & CRUTCHER LLP EX-23.2 4 INDEPENDENT AUDITOR'S CONSENT [KPMG LETTERHEAD] Exhibit 23.2 INDEPENDENT AUDITORS' CONSENT The Board of Directors Foodmaker, Inc.: We consent to the use of our report incorporated herein by reference. KPMG LLP San Diego, California August 20, 1999 -----END PRIVACY-ENHANCED MESSAGE-----