-----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, LW9HOOw4+ViVVQ0V59RAuZeAx9XspFuN/Y/7zfll733bzzXffE7CWhhd/RkqW5lc ZikXRGLVWiB4VcCuU7j0yg== 0000912057-96-009678.txt : 19960701 0000912057-96-009678.hdr.sgml : 19960701 ACCESSION NUMBER: 0000912057-96-009678 CONFORMED SUBMISSION TYPE: PRE 14C PUBLIC DOCUMENT COUNT: 1 CONFORMED PERIOD OF REPORT: 19960525 FILED AS OF DATE: 19960515 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: CALIFORNIA CULINARY ACADEMY INC CENTRAL INDEX KEY: 0000858915 STANDARD INDUSTRIAL CLASSIFICATION: 8200 IRS NUMBER: 943042862 STATE OF INCORPORATION: CA FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: PRE 14C SEC ACT: 1934 Act SEC FILE NUMBER: 000-21932 FILM NUMBER: 96565029 BUSINESS ADDRESS: STREET 1: 625 POLK ST CITY: SAN FRANCISCO STATE: CA ZIP: 94102 BUSINESS PHONE: 4157713536 MAIL ADDRESS: STREET 1: 625 POLK ST CITY: SAN FRANCISCO STATE: CA ZIP: 94102 PRE 14C 1 SCHED 14C SCHEDULE 14C INFORMATION INFORMATION STATEMENT PURSUANT TO SECTION 14(C) OF THE SECURITIES EXCHANGE ACT OF 1934 Check the appropriate box: [X] Preliminary Information Statement [ ] Confidential, for Use of the Commission Only (as permitted by Rule 14c- 5(d)(2)) [ ] Definitive Information Statement CALIFORNIA CULINARY ACADEMY, INC. (Name of Registrant as Specified in its Charter) Payment of Filing Fee (Check the appropriate box): [X] $125 per Exchange Act Rules 0-11(c)(1)(ii) or 14c-5(g). [ ] Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11. 1) Title of each class of securities to which transaction applies: Not Applicable 2) Aggregate number of securities to which transaction applies: Not Applicable 3) Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11: Not Applicable 4) Proposed maximum aggregate value of transaction: Not Applicable 5) Total fee paid: Not Applicable [ ] Fee paid previously with preliminary materials. [ ] Check the box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. 1) Amount Previously Paid: Not Applicable 2) Form, Schedule or Registration Statement No.: Not Applicable 3) Filing Party: Not Applicable 4) Date Filed: Not Applicable CALIFORNIA CULINARY ACADEMY, INC. 625 POLK STREET SAN FRANCISCO, CALIFORNIA 94102 May __, 1996 TO THE SHAREHOLDERS OF CALIFORNIA CULINARY ACADEMY, INC. This is to inform you that the holders of more than 50% of the outstanding shares of Common Stock of the California Culinary Academy, Inc. (the "Academy") have agreed to take action by written consent of the shareholders to approve the following action: An amendment to the Academy's Amended and Restated Articles of Incorporation to provide for a class of capital stock, to be designated "Preferred Stock" and to authorize the issuance of up to 5,000,000 shares thereof, which may be issued in one or more series, with such rights, preferences, privileges and restrictions as shall be fixed by the Academy's Board of Directors from time to time (the "Amendment"). The Board of Directors has determined that it would be desirable and in the best interest of the Academy to amend the Amended and Restated Articles of Incorporation to change the authorized capital in order to provide for the issuance of shares of Preferred Stock for existing and future financing needs. The Academy is currently conducting a private placement (the "Private Placement") of 7.5% Convertible Subordinated Promissory Notes that are convertible into Common Stock at the option of the holder or, upon the authorization of a series of Preferred Stock following the subject Amendment, automatically into Preferred Stock, as of the date of the authorization of such series of Preferred Stock. Details of the Preferred Stock contemplated to be created and issued are described in some detail in the Information Statement. Pursuant to the provisions of California law and the Academy's Amended and Restated Articles of Incorporation, the holders of at least a majority of the outstanding voting shares are permitted to approve the Amendment by written consent in lieu of a meeting, provided that prompt notice of such action is given to the other shareholders. Pursuant to the rules and regulations promulgated by the Securities and Exchange Commission (the "Commission") under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), an information statement must be sent to the holders of voting stock who do not sign the written consent (the "Holders") at least 20 days prior to the effective date of the action. This notice, which is being sent to all Holders of record on April 30, 1996, is intended to serve as such notice under California law and as the Information Statement required by the Exchange Act. Please note that you are not being asked to send a proxy and you are requested not to send one. Sincerely yours, THEODORE G. CROCKER CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER CALIFORNIA CULINARY ACADEMY, INC. 625 POLK STREET SAN FRANCISCO, CALIFORNIA 94102 NOTICE OF ACTION BY WRITTEN CONSENT OF SHAREHOLDERS TO THE SHAREHOLDERS OF CALIFORNIA CULINARY ACADEMY, INC.: Notice is hereby given that the holders of more than 50% of the outstanding shares of Common Stock of the California Culinary Academy, Inc. (the "Academy") have agreed to take action by written consent of the shareholders to approve the following action: An amendment to the Academy's Restated Articles of Incorporation to provide for a class of capital stock, to be designated "Preferred Stock" and to authorize the issuance of up to 5,000,000 shares thereof, with such rights, preferences, privileges and restrictions as shall be fixed by the Academy's Board of Directors from time to time (the "Amendment"). The foregoing action is more fully described in the Information Statement accompanying this Notice. April 30, 1996 has been fixed as the record date for the determination of shareholders entitled to notice of the taking of such action by written consent of the shareholders (the "Consent Action"). The Amendment will be effective on or about the 21st day after the date of the accompanying Information Statement. BY ORDER OF THE BOARD OF DIRECTORS John Shea Pierce SECRETARY San Francisco, California May __, 1996 PRELIMINARY CALIFORNIA CULINARY ACADEMY, INC. INFORMATION STATEMENT ------------- This Information Statement is furnished to shareholders by California Culinary Academy, Inc. (the "Academy") in accordance with the requirements of Section 14 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Regulation 14C promulgated thereunder. Consents by the holders of a majority of the outstanding Common Stock will be sought as of the date of this Information Statement. No action will be deemed effective until at least 20 days following the date hereof. Shareholders of record as of April 30, 1996 (the "Record Date") are entitled to notice of the Consent Actions to be taken, as described herein. This Information Statement is being mailed on or about May __, 1996 to the shareholders of record as of the Record Date. - - -------------------------------------------------------------------------------- WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY. - - -------------------------------------------------------------------------------- STOCK OWNERSHIP OF MANAGEMENT AND CERTAIN BENEFICIAL HOLDERS On April 30, 1996, the record date for shareholders entitled to notice of the Consent Actions described herein, the Academy's outstanding voting securities consisted of 3,113,600 shares of Common Stock, each share of which is entitled to one vote. There are no shares of Preferred Stock issued and outstanding as of April 30, 1996. The following table sets forth certain information as of April 30, 1996 with respect to the shares of Common Stock beneficially owned by (i) persons known by the Academy to own more than five percent of the outstanding shares of Common Stock; (ii) each director and nominee for director; and (iii) all directors and executive officers of the Academy as a group. Ownership information is based upon information furnished by the respective individuals. SHARES BENEFICIALLY OWNED (1) ----------------------------------- DIRECTORS AND 5% SHAREHOLDERS NUMBER PERCENT - - ----------------------------------- -------------------- --------- Theodore G. Crocker(2) 1,283,649 (3) 39.2% William G. DeMar(2) 271,135 (4) 8.6 Robert J. Marani(2) 222,002 (5) 6.9 W. Bruce C. Bailey 0 0 Grover T. Wickersham 15,850 (6) * All Executive Officers and Directors as a group (8 persons) 1,855,124 (7) 53.1 - - ----------- (1) Beneficial ownership of directors, officers and 5% or more shareholders includes both outstanding Common Stock and shares issuable upon exercise of warrants or options that are currently exercisable or will become exercisable within 60 days after the date of this table. (2) The address for the persons named in the table to which this footnote applies is 625 Polk Street, San Francisco, California 94102. (3) Includes 161,526 shares of Common Stock issuable upon exercise of currently exercisable options and warrants. (4) Includes 40,152 shares of Common Stock issuable upon exercise of currently exercisable options and warrants. (5) Includes 86,002 shares of Common Stock issuable upon exercise of currently exercisable options and warrants. (6) Includes 14,850 shares of Common Stock issuable upon exercise of currently exercisable options. (7) Includes 363,983 shares of Common Stock issuable upon exercise of currently exercisable options and warrants. The Academy knows of no arrangements that will result in a change in control subsequent to the date hereof. Except as otherwise noted, the persons named in the table have sole voting and investment power with respect to all shares shown as beneficially owned by then, subject to community property laws, where applicable. BACKGROUND CONCERNING THE CONSENT ACTION The Academy is taking the Consent Action at this time to allow for the issuance of Preferred Stock in a private placement currently in process and to provide flexibility for possible future financings, if and when authorized by the Board of Directors. The Academy's ongoing private placement (the "Private Placement") could raise up to $5,000,000, with no minimum, through the issuance of 7.5% Convertible Subordinated Promissory Notes due 2006 (the "Convertible Notes"). Management believes, but cannot guarantee, that the Private Placement will result in net proceeds to the Academy of between $2,000,000 and $3,000,000. The net proceeds will be used for expansion of the Academy's programmatical offerings, as working capital for general corporate purposes and to partially fund possible future acquisitions. The Convertible Notes being issued in the Private Placement are convertible into Common Stock at the option of the holder. In addition, if there is a new series of Preferred Stock the Academy becomes legally authorized to issue, the Convertible Notes will automatically convert into the new series of Preferred Stock. The Preferred Stock currently authorized by the Academy's Articles do not have the same rights, preferences, privileges and restrictions as the Preferred Stock proposed to be issued pursuant to the Private Placement. Accordingly, the Academy must amend its Articles to provide the flexibility to use Preferred Stock as a financing vehicle both in the Private Placement and in future financings or for other legitimate corporate purposes. Appendix B to this Information Statement sets forth the terms of the Preferred Stock that have been offered to investors in the Private Placement. Shareholder approval is required to amend the Articles to authorize a class of Preferred Stock that can be issued in one or more series, with the Board being given the authority to determine the rights, preferences, privileges and restrictions of all unissued series of Preferred Stock. AMENDMENT TO RESTATED ARTICLES OF INCORPORATION The Board of Directors has recommended and declared advisable the adoption of a resolution to amend the Articles to increase the number of authorized shares of Preferred Stock and to provide for the ability of the Board to designate one or more series of Preferred Stock and to determine and alter the rights, preferences, privileges and restrictions to be granted and imposed upon such series of Preferred Stock (so called "blank check preferred"). If adopted, Article III of the Academy's current Articles will be amended to read substantially in the form set forth in Appendix A hereto. If changes are required in the amendment by the California Secretary of State, the officers of the Academy shall be authorized, by the approval given by the shareholders for the amendment, to make any such necessary changes in the language of the amendment as may be required be the California Secretary of State. Under the present Articles, the Academy is authorized to issue 20,003,100 shares of its capital stock, divided into three classes separate classes: Common (20,000,000 shares), Series A Preferred (1,550 shares) and Series B Preferred (1,550). The rights, preferences, privileges and restrictions of such Series A and Series B Preferred Stock are fixed in the Articles and cannot be changed other than by an amendment to the Articles. In addition, the number of shares of each class of Preferred Stock is very limited, making any future Preferred Stock financing extremely difficult, if not impossible. The proposed Amendment to the Articles will permit the Academy to issue additional shares of Preferred Stock and will give the Board the flexibility to determine the terms of the Preferred Stock to be issued. The Board of Directors believes that it is desirable both to have a sufficient number of additional shares of Preferred Stock and to give the Board the flexibility to determine the specific provisions of the securities will be, as the occasion may arise, for possible future financing and acquisition transactions and other proper corporate purposes. Having such additional shares available for issuance in the future would give the Academy greater flexibility and allow shares of Preferred Stock to be issued without the expense and delay of a special shareholders meeting. The ability of a board of directors to designate one or more series of preferred stock and to fix the rights, preferences, privileges and restrictions of any such series is a typical provision in articles of incorporation of many public and private companies. The Board would have the ability, however, to create one or more series of Preferred Stock that could have rights, preferences and privileges in excess of those conferred upon the Common Stock. If the amendment to the Articles is approved, the Board of Directors intends to designate 700,000 shares of a series of Preferred Stock (Series A Preferred) that is expected to carry the rights, preferences, privileges and restrictions set forth in Appendix B hereto. The number of shares and such terms may be changed by the Board if deemed advisable by the Board. No director or officer of the Academy nor any person who has held such position at any time since the beginning of the last fiscal year has any substantial interest, direct or indirect, by security holdings or otherwise, in the adoption of the proposed Amendment to the Articles. The effective date of the proposed Amendment will be the date upon which the required filing is made in the Office of the California Secretary of State. Such filing will be made as soon thereafter as practicable after proper notice to the shareholders. It is anticipated that the Amendment will be submitted for filing on or about the 21st day after the date of this Information Statement, which will satisfy the notice requirements under both federal and California law. REQUIRED VOTE The approval of the Amendment to the Articles requires the affirmative vote of the holders of a majority of the outstanding shares entitled to vote. The Academy expects to obtain the required votes by obtaining the written consent of shareholders holding an aggregate of a majority of the outstanding shares. OTHER MATTERS The Academy will pay the cost of distributing this Information Statement, including the cost of assembling and mailing it. The Academy will reimburse brokerage firms and other custodians, nominees and fiduciaries for reasonable expenses incurred by them in sending this Information Statement to the beneficial owners of the Academy's Common Stock. BY ORDER OF THE BOARD OF DIRECTORS Jack Shea Pierce SECRETARY May __, 1996 San Francisco, California Appendix A CERTIFICATE OF AMENDMENT OF RESTATED ARTICLES OF INCORPORATION OF CALIFORNIA CULINARY ACADEMY, INC. KEITH H. KEOGH and CHRISTINE E. MUNSON, certify that: 1. They are the President and Chief Financial Officer, respectively, of California Culinary Academy, Inc. 2. Article III of the Restated Articles of Incorporation, as previously amended, of this corporation is amended to read as follows: ARTICLE III The corporation is authorized to issue two classes of shares designated "Preferred Stock" and "Common Stock," respectively. The total number of shares of stock that this corporation has the authority to issue is 25,000,000, consisting of 20,000,000 shares of Common Stock, no par value, and 5,000,000 shares of Preferred Stock, no par value. The Preferred Stock may be divided into such number of series as the Board of Directors may determine. The Board of Directors is authorized to determine and alter the rights, preferences, privileges and restrictions granted to and imposed upon any wholly unissued series of Preferred Stock, and to fix the number of shares of any series of Preferred Stock and the designation of any such series of Preferred Stock. The Board of Directors within the limits and restrictions stated in any resolution or resolutions of the Board of Directors originally fixing the number of shares constituting any series, may increase or decreased (but not below the number of shares of such series then outstanding) the number of shares of any series subsequent to the issue of shares of that series. 3. The foregoing amendment of the Restated Articles of Incorporation has been duly approved by the board of directors. 4. The foregoing amendment of the Restated Articles of Incorporation has been duly approved by the required vote of shareholders in accordance with Section 902 of the Corporations Code. The total number of outstanding shares of the corporation is 3,113,600. The number of shares voting in favor of the amendment equaled or exceeded the vote required. The percentage vote required was more than 50%. 8 We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge. Dated this ___ day of June, 1996. ------------------------------------ Keith H. Keogh PRESIDENT ------------------------------------ Christine E. Munson VICE PRESIDENT, FINANCE AND CHIEF FINANCIAL OFFICER 9 Appendix B SUMMARY OF TERMS OF THE 7.5% CONVERTIBLE PREFERRED STOCK Conversion . . . . . . . . . Each share of Preferred Stock is convertible at any time at the option of the holder into the Company's Common Stock at (i) $5.50 per share (as to Notes issued on or before April 30, 1996) or (ii) a 15% discount from the average of the closing price of the Common Stock for the five trading days immediately preceding the date of conversion (as to Notes issued on or after May 1, 1996). The conversion price described in (i) and (ii), as the case may be, is referred to herein as the "Initial Conversion Price." The Conversion Price shall be subject to adjustment for stock splits, reverse stock splits and similar recapitalization events. After six months from the final closing of this offering, each share of Preferred Stock will convert automatically if the closing price of the Common Stock equals or exceeds $8.00 for 20 consecutive trading days. No fractional shares will be issued in connection with either the optional or automatic conversion of Preferred Stock but, in lieu thereof, an appropriate amount will be paid in cash by the Company based upon the Conversion Price. NOTE THAT PREFERRED STOCK CONVERTED FROM NOTES SOLD BEFORE MAY 1, 1996 AND AFTER MAY 1, 1996 MAY CARRY DIFFERENT PREFERRED STOCK SERIES DESIGNATIONS DUE TO THE DIFFERENT CONVERSION RATES DESCRIBED ABOVE. IN ALL OTHER RESPECTS, THE TWO SERIES OF PREFERRED STOCK SHALL BE IDENTICAL. 10 Price Protection . . . . . . In the event the average closing price for any 30 consecutive trading day period subsequent to the earlier of (A) the public announcement of quarterly or annual financial results or (B) the date upon which the respective Quarterly Report on Form 10-Q or Form 10-QSB (the "window period") is less than 80% of the Initial Conversion Price, then and in each case, the then Conversion Price for such Preferred Stock shall be reduced as of the opening of business on the 31st trading day to a new Conversion Price equal to such average closing sale price; PROVIDED, HOWEVER, that in no event shall the Conversion Price be less than $3.50, subject to adjustment as otherwise provided in the Certificate of Determination. Dividends . . . . . . . . . Quarterly dividends at the annual rate of 7.5% per share (from the date of first issuance) are payable quarterly, when, as and if declared by the Company's Board of Directors. The amount of dividends payable per share of Preferred Stock for the initial dividend period and any period shorter than a full dividend period will be computed on the basis of a 360-day year. Liquidation Preference . . . $5.50 per share, plus accrued and unpaid dividends. Redemption . . . . . . . . . The Preferred Stock is not redeemable. Voting Rights . . . . . . . Although the Preferred Stock is nonvoting, except as required by law, in the event the Company fails to pay a quarterly dividend, the holders of the Preferred Stock will be entitled to elect one-third of the Company's board of directors at the next meeting held for the election of directors. Ranking . . . . . . . . . . The Preferred Stock will be senior to Common Stock with respect to dividends and upon liquidation, dissolution or winding up. The Preferred Stock will be junior to all existing and future liabilities of the Company. 11 -----END PRIVACY-ENHANCED MESSAGE-----