-----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, E0IkcTD8wr8O/B4ESY9ZgfGDfEMtSKecQ7ITFkDbne3U2G5MyN/5oqYheu26/QK9 ZbJ0PwwTcG88PpKGy6n1fQ== 0000892569-96-001874.txt : 19960923 0000892569-96-001874.hdr.sgml : 19960923 ACCESSION NUMBER: 0000892569-96-001874 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 19960920 EFFECTIVENESS DATE: 19960920 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: CKE RESTAURANTS INC CENTRAL INDEX KEY: 0000919628 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 330602639 STATE OF INCORPORATION: DE FISCAL YEAR END: 0130 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-12401 FILM NUMBER: 96632768 BUSINESS ADDRESS: STREET 1: 1200 N HARBOR BLVD CITY: ANAHEIM STATE: CA ZIP: 92801 BUSINESS PHONE: 7147745796 S-8 1 CKE RESTAURANTS, INC. DATED 9-20-96 1 As Filed With the Securities and Exchange Commission on September 20, 1996 Registration No. 333-________ SECURITIES AND EXCHANGE COMMISSION WASHINGTON. D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 CKE RESTAURANTS, INC. (Exact name of registrant as specified in its charter)
DELAWARE 33-0602639 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
1200 NORTH HARBOR BOULEVARD, ANAHEIM, CALIFORNIA 92801 (Address of Principal Executive Offices) (Zip Code) 1992 STOCK OPTION PLAN (SUMMIT) 1987 EMPLOYEE INCENTIVE STOCK OPTION PLAN (SUMMIT) 1987 NONQUALIFIED STOCK OPTION PLAN (SUMMIT) 1984 INCENTIVE STOCK OPTION PLAN (SUMMIT) (Full titles of the plans) Robert A. Wilson, Esq., Vice President and General Counsel CKE Restaurants, Inc. 1200 North Harbor Boulevard Anaheim, California 92801 (Name and address of agent for service) (714) 774-5796 (Telephone number, including area code, of agent for service) Copy to: C. Craig Carlson, Esq. J. Michael Vaughn, Esq. Stradling, Yocca, Carlson & Rauth, a Professional Corporation 660 Newport Center Drive, Suite 1600, Newport Beach, California 92660 CALCULATION OF REGISTRATION FEE
=========================================================================================================================== Proposed Maximum Proposed Maximum Title of Securities Amount To Be Offering Aggregate Offering Amount of To Be Registered Registered (1) Price Per Share (2) Price (2) Registration Fee =========================================================================================================================== Common Stock, $0.01 par value 51,406 shares $28.35 $1,457,360 $502.54 ===========================================================================================================================
(1) Includes such additional shares of Common Stock that may become issuable pursuant to the anti-dilution adjustment provisions of the 1992 Stock Option Plan (the "1992 Plan"), the 1987 Employee Incentive Stock Option Plan (the "1987 Employee Plan"), the 1987 Nonqualified Stock Option Plan (the "1987 NQSO Plan"), and the 1984 Incentive Stock Option Plan (the "1984 Plan") (collectively, the "Plans"). (2) In accordance with Rule 457(h), the aggregate offering price of the 51,406 shares of Common Stock registered hereby, which are issuable upon the exercise of options granted under the Plans, is based upon the per share exercise price of such options, the weighted average of which is approximately $28.35 per share. The options were assumed by the Registrant in connection with its acquisition of Summit Family Restaurants Inc. on July 15, 1996. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents are incorporated herein by reference: (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended January 29, 1996. (b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended May 20, 1996. (c) All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the end of the fiscal year covered by the Report referred to in (a) above. (d) The description of the Registrant's Common Stock that is contained in the Registrant's Registration Statement filed under Section 12 of the Exchange Act, including any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the Registrant 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 offered have been sold or which deregisters all of such securities then remaining unsold, shall be deemed to be incorporated herein by reference and to be a part hereof from the date of filing of such documents, except as to any portion of any future annual or quarterly report to stockholders or document that is not deemed filed under such provisions. For the purposes of this registration statement, any statement in a document incorporated by reference shall be deemed to be modified or superseded to the extent that a statement contained in this registration statement modifies or supersedes a statement in such document. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. Section 145 of the General Corporation Law of the State of Delaware (the "Delaware Law") provides for the indemnification of directors and officers under certain circumstances, as therein set forth. The Registrant's Bylaws provides that the Registrant shall indemnify its officers and directors in the manner and to the fullest extent permitted by the Delaware Law. The Bylaws also permit the Registrant to enter into indemnification agreements with any one or more of its directors, officers, employees and agents upon the approval of the Registrant's Board of Directors. In addition, the Registrant's Certificate of Incorporation provides that, pursuant to the Delaware Law, the Registrant's directors shall not be liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director. This provision in the Certificate of Incorporation does not eliminate the duty of care, and in appropriate circumstances equitable remedies such as injunctive or other forms of non-monetary relief will remain available under the Delaware Law. This provision also does not affect a director's responsibilities under any other law, such as the federal securities laws or federal environmental laws. The Certificate of Incorporation further provides that the Registrant shall indemnify its directors and officers in the manner and to the fullest extent permitted by the Delaware Law, and requires the Registrant to advance litigation expenses under certain circumstances. The Certificate of Incorporation also provides that the indemnification provided therein shall not be deemed to be exclusive of any other rights to which any person seeking indemnification from the Registrant may be entitled under any agreement, vote of stockholders or disinterested directors, or otherwise. The above discussion of the Registrant's Bylaws and Certificate of Incorporation and of the Delaware Law is not intended to be exhaustive and is respectively qualified in its entirety by such Bylaws and Certificate of Incorporation and the Delaware Law. II-1 3 Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. The following exhibits are filed as part of this Registration Statement: Number Description 4.1 1992 Stock Option Plan (Summit) 4.2 1987 Employee Incentive Stock Option Plan (Summit) 4.3 1987 Nonqualified Stock Option Plan (Summit) 4.4 1984 Incentive Stock Option Plan (Summit) 5.1 Opinion of Stradling, Yocca, Carlson & Rauth, a Professional Corporation, Counsel to the Registrant. 23.1 Consent of Stradling, Yocca, Carlson & Rauth, a Professional Corporation (included in the Opinion filed as Exhibit 5.1). 23.2 Consent of KPMG Peat Marwick LLP, independent auditors, with respect to the consolidated financial statements of the Registrant. 23.3 Consent of KPMG Peat Marwick LLP, independent auditors, with respect to the consolidated financial statements of Summit Family Restaurants Inc. 24.1 Power of Attorney (included on signature page to the Registration Statement at page S-1). 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. Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the 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 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. II-2 4 (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. II-3 5 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 Anaheim, State of California, on the 20th day of September, 1996. CKE RESTAURANTS, INC. By: /s/ WILLIAM P. FOLEY II ------------------------------ William P. Foley II Chairman of the Board and Chief Executive Officer POWER OF ATTORNEY We, the undersigned officers and directors of CKE Restaurants, Inc., do hereby constitute and appoint William P. Foley II, Robert A. Wilson and Joseph N. Stein, and each of them, our true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement, and to file the same, with 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 each of said attorneys-in-fact and agents, 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 date indicated.
Signature Title Date --------- ----- ---- /s/ WILLIAM P. FOLEY II Chairman of the Board September 20, 1996 - ----------------------------- of Directors and William P. Foley II Chief Executive Officer (Principal Executive Officer) /s/ JOSEPH N. STEIN Chief Financial Officer September 20, 1996 - ----------------------------- (Principal Financial Officer) Joseph N. Stein /s/ JOHN C. FULLER Controller September 20, 1996 - ----------------------------- (Principal Accounting Officer) John C. Fuller /s/ PETER CHURM Director September 20, 1996 - ----------------------------- Peter Churm
S-1 6 /s/ CARL L. KARCHER Director September 20, 1996 - ----------------------------- Carl L. Karcher /s/ CARL N. KARCHER Director September 20, 1996 - ----------------------------- Carl N. Karcher /s/ DANIEL D. (RON) LANE Vice Chairman of the Board September 20, 1996 - ----------------------------- Daniel D. (Ron) Lane /s/ FRANK P. WILLEY Director September 20, 1996 - ----------------------------- Frank P. Willey /s/ W. HOWARD LESTER Director September 20, 1996 - ----------------------------- W. Howard Lester
S-2 7 EXHIBIT INDEX
Exhibit Sequential Number Description Page Number 4.1 1992 Stock Option Plan (Summit) -- 4.2 1987 Employee Incentive Stock Option Plan (Summit) -- 4.3 1987 Nonqualified Stock Option Plan (Summit) -- 4.4 1984 Incentive Stock Option Plan (Summit) -- 5.1 Opinion of Stradling, Yocca, Carlson & Rauth, a -- Professional Corporation, Counsel to the Registrant. 23.1 Consent of Stradling, Yocca, Carlson & Rauth, a -- Professional Corporation (included in the Opinion filed as Exhibit 5.1). 23.2 Consent of KPMG Peat Marwick LLP, independent auditors, with respect to the consolidated financial statements of the Registrant. -- 23.3 Consent of KPMG Peat Marwick LLP, independent auditors, with respect to the consolidated financial statements of Summit Family Restaurants Inc. -- 24.1 Power of Attorney (included on signature page to the -- Registration Statement at page S-1).
EX-4.1 2 SUMMIT FAMILY 1992 STOCK OPTION PLAN 1 EXHIBIT 4.1 SUMMIT FAMILY RESTAURANTS INC. 1992 STOCK OPTION PLAN as amended April 8, 1994 and November 18, 1994 by the Compensation Committee 1. OBJECTIVES. The objectives of the Plan are to advance and promote the interests of Summit Family Restaurants Inc. (the "Company") and its shareholders by giving key employees and directors of the Company an opportunity to acquire shares of common stock of the Company. The Company seeks to attract and retain qualified employees and directors and to promote the identification of their interests with those of the Company's shareholders. Grants of Common Stock under this Plan may consist of one or more of the following: (a) Incentive Stock Options under Section 422 of the Code; or, (b) Nonqualified Stock Options. 2. DEFINITIONS. The following terms are specifically defined for purposes of this Plan: "Agreement" means the written option agreement between the Company and the Participant under which the Participant may acquire shares of Common Stock upon exercise of an Option pursuant to this Plan. Each option grant shall be evidenced by an Agreement dated as of the Date of Grant and executed by the Company and the Participant. The Agreement shall indicate the type of grant and may contain any other terms and conditions determined by the Committee, not inconsistent with the provisions of the Plan. "Board" means the Board of Directors of the Company. "Change of Control" means the occurrence of any of the following transactions, with the Change of Control deemed to occur as of the date of consummation of the transaction: (a) Any person or entity shall acquire, other than directly from the Company, in excess of 49% of the Company's outstanding shares of Common Stock unless the acquisition is pursuant to an agreement with the Company approved by a majority of the Board before the acquirer becomes a beneficial owner of 5% of the Company's voting power; 2 (b) The Company's shareholders on the date immediately prior to the date of shareholder approval of the transaction ("Pre-transaction Shareholders") approve the consummation of any merger, consolidation or other combination with one or more other corporations, as a result of which the Pre-transaction Shareholders own less than 50% of the voting power of the surviving entity after the transaction, unless a majority of the directors of the surviving entity were directors of the Company before consummation of the transaction; (c) A change in the composition of a majority of the Board during any 24 month period without the approval of a majority of the directors in office at the beginning of the period; or (d) The liquidation of the Company or the sale or disposition of all or substantially all of the assets of the Company whether or not approved by the shareholders or the Board. "Code" means the Internal Revenue Code of 1986, as amended. "Committee" means the Compensation Committee of the Board, comprised of at least two or more Board members, all of whom are Disinterested Persons. "Common Stock" means common stock, par value $.10 per share, of the Company. "Date of Exercise" as to a particular Option means the date on which the Company receives from the Participant all of the following: (a) written notice of exercise of the Option as to a specified number of shares of Common Stock; (b) full payment of the Option Price for the shares; and (c) any additional documents required pursuant to paragraph 10. "Date of Grant" as to a particular Option means the date on which the Committee grants the Option under the Plan. "Disabled or Disability" means permanent and total disability as it is defined in Section 22(e)(3) of the Code. "Disinterested Person" has the meaning set forth in Rule 16b-3(d)(3) promulgated under the Securities Act. "Eligible Participant," for purposes of Incentive Stock Options, means officers (who may also be directors) and employees regularly employed on a salaried basis by the Company or any Subsidiary. "Eligible Participant," for purposes of Nonqualified Stock Options, means officers (who may also be directors) and employees regularly employed on a salaried basis by the 2 3 Company or any Subsidiary, and directors of the Company or any Subsidiary, whether or not they are employees. "Exchange Act" means the Securities and Exchange Act of 1934, as amended. "Fair Market Value" of the Common Stock means the last sale price at which Common Stock is traded on a date or, if no Common Stock is traded on that date, the most recent prior date on which Common Stock was traded, as reflected on the National Market System of the National Association of Securities Dealers Automated Quotation System. "Incentive Stock Option" has the meaning given to it by Section 422 of the Code and as further defined in this Plan. "Limited Stock Appreciation Right" means a grant in tandem with an Option, entitling the Participant to receive cash equal to the difference between the tandem Option Price and the highest Fair Market Value of the Common Stock within 60 days of a Change of Control. Limited Stock Appreciation Right is further defined under paragraph 9 below. "Nonqualified Stock Option" means any Option granted by the Company pursuant to this Plan which is not an Incentive Stock Option. "Option" means an Option to purchase Common Stock granted by the Company pursuant to the provisions of this Plan. "Option Price" means the price per share of Common Stock purchasable under an Option. The Option Price shall be determined by the Committee at the Date of Grant but shall not be less than the Fair Market Value on the Date of Grant. "Participant" means an Eligible Participant who has received an Option granted by the Committee under this Plan. "Plan Year" means a fiscal year which coincides with each fiscal year of the Company during the term of the Plan. "Securities Act" means the Securities Act of 1933, as amended from time to time. "Subsidiary" means any corporation of which more than 50% of the outstanding shares of voting stock are beneficially owned directly or indirectly by the Company. In addition, the terms "Formula Grant" and "Non-Employee Director" shall have the meanings set forth in paragraph 10. 3 4 3. COMMON STOCK AVAILABLE; ADJUSTMENTS. The maximum number of shares of Common Stock available to Eligible Participants under the Plan is 1,060,000 shares. Shares of Common Stock subject to grants under this Plan shall be authorized and unissued shares of Common Stock or treasury stock. If any portion of an Option terminates or is forfeited for any reason prior to exercise, the shares of Common Stock subject to the terminated or forfeited Option will return to the pool of available shares for additional grants under the Plan. The number of shares for which Options may be granted to any single Participant during any one (1) Plan Year under the Plan shall not exceed 100,000. If the outstanding shares of Common Stock are changed into or exchanged for a different number or kind of shares or other securities of the Company in a reorganization, recapitalization, reclassification, combination of shares, stock split-up, or stock dividend, the Committee will make corresponding adjustments in the numbers of shares and prices necessary to reflect the change in the number of kind of shares of Common Stock. The number of shares of Common Stock previously optioned and the Option Prices shall likewise be adjusted. The Company at all times during the term of the Plan shall reserve for issuance the number of shares of Common Stock available for issuance under this Plan. 4. ADMINISTRATION AND INTERPRETATION. The Plan shall be administered solely by the Committee. The Committee may make rules and establish procedures it deems appropriate for the administration of the Plan. If there is any disagreement as to the interpretation of the Plan or any of its rules or procedures, the decision of the Committee shall be final and binding upon all persons in interest. Notwithstanding the above, the Committee shall have no authority, discretion or power to select the individuals who are or will be eligible to receive Formula Grants under paragraph 10 of this Plan. The Committee shall not have any discretion to determine the amount, price or timing of any Formula Grants granted or to be granted pursuant to its express terms and except in accordance with the terms and provisions of paragraph 10 below. Subject to the foregoing, the Committee shall have the power, subject to, and within the limitations of, the express provisions of paragraph 10: (i) To construe and interpret paragraph 10 and any Formula Grant, to construe or interpret any condition or restrictions imposed on Common Stock acquired pursuant to the exercise of a Formula Grant, to define the terms used herein and to establish, amend and revoke rules and regulations for administration of paragraph 10. The Committee in the exercise of this power, may correct any defect, omission or inconsistency in paragraph 10 or in any Formula Grant Agreement, in a manner and to the extent it shall deem necessary or expedient to make paragraph 10 fully effective; (ii) To amend, modify, suspend or terminate paragraph 10 in accordance with Section 18 hereof, and to recommend to shareholders, amendments to paragraph 10 or termination of paragraph 10. 5. GRANTING OF OPTIONS. The Committee is authorized to grant Options to Eligible Participants pursuant to the Plan. The terms, provisions and type of Options, the number 4 5 of shares, if any, optioned in each Plan Year, the Participants to whom Options are granted, and the number of shares of Common Stock optioned to each Participant shall be wholly within the discretion of the Committee, subject to the total number of shares of Common Stock available under the Plan and the provisions of paragraph 3, and, notwithstanding any other provisions of the Plan, no Option shall be granted later than ten (10) years after the date the Plan is adopted by the Board. 6. OPTION TERMS APPLICABLE TO ALL OPTIONS. Subject to the limitations prescribed in paragraph 5 above and paragraph 10 below, all Options granted under the Plan shall be on the following terms: (a) The Option price shall be fixed by the Committee but shall not be less than 100% of the Fair Market Value of the Common Stock on the Date of Grant; (b) The Option Price shall be payable in cash, by certified or cashier's check payable to the order of the Company, in shares of Common Stock of the Company having a Fair Market Value equal to the Option Price on the Date of Exercise, or any combination thereof. In addition, the Committee also may allow (i) cashless exercises subject to any restrictions imposed by federal or state law, including any federal securities law restrictions, or (ii) payment by any other means which the Committee determines to be consistent with the Plan's purpose and applicable law; (c) The Option shall not be transferable other than by will or the laws of descent and distribution or pursuant to a qualified domestic relations order; (d) The Option shall expire ten (10) years after the Date of Grant, unless an earlier date is fixed by the Committee; (e) If a Participant who is a full-time employee of the Company or a Subsidiary dies or becomes Disabled while employed by the Company or any Subsidiary, his or her Option may be exercised within 12 months after his or her death or Disability. Upon the Participant's death, the Option may be exercised by the Participant's personal representative or by any beneficiary to whom the Participant's interest in the Option has devolved under a will or the laws of descent and distribution. Upon the Participant's Disability, the Option may be exercised by the Participant or his or her legal representative. Any exercise of any portion of the Option pursuant to this subparagraph may only occur to the same extent that, at the Date of Exercise, the Option would have been exercisable by the Participant if then living, not Disabled and employed by the Company or a Subsidiary. To the extent the Option is not exercised it shall expire at the end of the twelve-month period; and, (f) If the Company is succeeded by another company in a reorganization, merger, consolidation, acquisition of property or stock, separation or liquidation, the 5 6 successor company shall assume the outstanding Options granted under the Plan or shall substitute new Options for them, with, in the case of Incentive Stock Options, only modification necessary to continue their status or the status of the substituted Options as Incentive Stock Options for purposes of the Code. 7. OPTION TERMS APPLICABLE ONLY TO INCENTIVE STOCK OPTIONS. In addition to the terms specified in paragraph 6 above, all Incentive Stock Options granted under the Plan shall be on the following terms: (a) No Incentive Stock Option shall be granted to any Eligible Participant who, immediately prior to the grant, owns more than 10% of the voting power of all classes of stock of the Company or of a Subsidiary, unless the Option Price is at least 110% of the aggregate Fair Market Value of the Common Stock for which the Option is granted on the Date of Grant and the Option, by its terms, expires no later than five years after the Date of Grant; (b) In the case of Incentive Stock Options granted under the Plan, the aggregate Fair Market Value (determined as of the Date of Grant) of the Common Stock for which Options are granted under the Plan to any one Participant that are exercisable for the first time during any calendar year shall not exceed $100,000; (c) Except to the extent that the Committee modifies or amends the following vesting schedule for any Participant, the following vesting schedules shall apply: (A) For Incentive Stock Options granted prior to April 8, 1994, vesting shall occur over four years from the Date of Grant, as follows: (i) Participants shall be eligible to exercise 20% of the Option immediately on or after the Date of Grant; and, (ii) they shall be eligible to exercise an additional 20% per year on or after each anniversary of the Date of Grant thereafter, until fully vested. (B) For Incentive Stock Options granted on or after April 8, 1994, vesting shall occur over five years from the Date of Grant, as follows: (i) Participants shall be eligible to exercise 20% of the Option on or after the first anniversary of the Date of Grant; and, (ii) they shall be eligible to exercise an additional 20% per year on or after each anniversary of the Date of Grant thereafter, until fully vested. (d) Except as otherwise provided in subparagraph 6(e) above or paragraph 17 below, if the Participant ceases to be an employee of the Company or any Subsidiary, the Option shall terminate three months after the date the Participant ceases to be an employee and may only be exercised prior to the last day of the three-month period; and, 6 7 (e) Notwithstanding any other provision of the Plan, the terms of any Incentive Stock Option granted under the Plan shall fully comply with the provisions of Section 422 of the Code, or its successor, and any regulations thereunder. 8. OPTION TERMS APPLICABLE ONLY TO NONQUALIFIED STOCK OPTIONS. In addition to the terms specified in paragraph 6 above, all Nonqualified Stock Options granted under the Plan shall be on the following terms: (a) Nonqualified Stock Options shall vest as determined by the Committee in its sole discretion and may vest 100% as of the Date of Grant or in the percentages and over the periods of time established by the Committee as of the Date of Grant. The Agreement for each Nonqualified Stock Option shall specify the terms upon which the Option shall vest; and, (b) Except as may otherwise be provided by the Committee at any time, a Nonqualified Stock Option granted to a Participant who is an employee of the Company or a Subsidiary shall terminate three months after the date on which the Participant ceases to be an employee of the Company or a Subsidiary and may only be exercised prior to the last day of the three month period subject to the provisions of subparagraph 6(e) and paragraph 17 of this Plan. 9. GRANT AND EXERCISE OF LIMITED STOCK APPRECIATION RIGHTS. Limited Stock Appreciation Rights may be granted to Eligible Participants by the Committee in tandem with any Option granted pursuant to this Plan, in accordance with the following terms: (a) The Limited Stock Appreciation Right may be granted either at or after the time of the grant of a Nonqualified Stock Option. In the case of a Limited Stock Appreciation Right granted in tandem with an Incentive Stock Option, the Limited Stock Appreciation Right may be granted only at the time of the grant of the Incentive Stock Option; (b) A Limited Stock Appreciation Right shall entitle the holder of the tandem Option, upon exercise of the Limited Stock Appreciation Right, to surrender the Option and the Limited Stock Appreciation Right in exchange for an amount in cash equal to: (1) the excess of (i) the highest Fair Market Value of a share of Stock during the period beginning 60 days prior to a Change of Control and the date of a Change of Control over (ii) the Option Price; multiplied by, (2) the number of shares as to which the Limited Stock Appreciation Right shall have been exercised; (c) A Limited Stock Appreciation Right shall only be exercisable for a 90 day period beginning on the date of a Change of Control; 7 8 (d) Limited Stock Appreciation Rights shall be exercisable only to the extent the related Options have not been previously exercised. A Participant must satisfy the terms and procedures for the exercise of an Option as set forth in this Plan and in the related Agreement in order to exercise a Limited Stock Appreciation Right; (e) In the case of a Participant subject to the restrictions of Section 16(b) of the Exchange Act, no Limited Stock Appreciation Right (as referred to in Rule 16b-3(e) or any successor rule under the Exchange Act) shall be exercised except in compliance with any applicable requirements of Rule 16b-3(e) or its successor; and, (f) All Limited Stock Appreciation Rights granted under this Plan shall be granted within ten (10) years from the date this Plan is adopted by the Board. 10. FORMULA GRANTS TO NON-EMPLOYEE DIRECTORS. (a) The provisions of this paragraph 10 are applicable only to Nonqualified Stock Options granted to Non-Employee Directors (as defined below), pursuant to subparagraph 10(c) below. All other Options granted to Directors and other Eligible Participants shall be governed by the provisions of paragraphs 6 and 7 or 8, as applicable. (b) For purposes of this paragraph 10 the term "Non-Employee Director" means a member of the Board who is not an employee of the Company. Options granted pursuant to this paragraph 10 are hereinafter referred to as "Formula Grants". (c) (i) Each Non-Employee Director will be granted Options to purchase 5,000 shares of Common Stock on the date of the Board meeting immediately following the date he or she is first elected or appointed (whichever is applicable) to the Board; (ii) Each Non-Employee Director will be granted Options to 2,000 shares of Common Stock each year at the first Board meeting held in conjunction with the Annual Meeting of Shareholders, or if there is no such Board meeting, the next Board meeting after the Annual Meeting of Shareholders; provided that the Non-Employee Director has served on the Board for at least six consecutive months immediately preceding the date of the grant. The Non-Employee Director must be a current member at the time of the grant; therefore, if the Non-Employee Director completes a three-year term and does not stand for re-election, the Non-Employee Director will not receive a grant at the end of the three-year term. (iii) The Option Price of the Formula Grants shall be 100% of the Fair Market Value of the Common Stock on the Date of Grant. 8 9 (iv) The Formula Grants shall be 100% vested on the Date of Grant. (v) The Formula Grants shall expire ten (10) years after the Date of Grant. (vi) Notwithstanding any provision to the contrary, no Formula Grants shall be granted on a date when the number of shares authorized for issuance pursuant to the Plan and then available for issuance pursuant to the Plan is less than the aggregate number of such shares which would be issuable pursuant to Formula Grants otherwise required to be granted on such date assuming the full vesting and exercise of all outstanding Options granted pursuant to the Plan. In the event the Formula Grants are not granted as a result of the application of this subparagraph 10(c)(v), no Formula Grant shall thereafter be granted pursuant to this paragraph 10 or the Plan. (vii) All provisions of the Plan not inconsistent with this paragraph 10 shall apply to Formula Grants; provided, however, that the provisions of paragraphs 5, 7, 8 and 9 shall not apply to Formula Grants, and the Committee shall have not discretion to determine or modify the amount, pricing or timing of such Formula Grants. In the event of any conflict between a provision of this paragraph 10 and a provision in any other paragraph of the Plan, such provision of this paragraph 10 shall be deemed to control with respect to Formula Grants. (d) Adoption of this paragraph 10 shall be subject to the approval of the shareholders of the Company in accordance with applicable law. 11. ADDITIONAL REQUIREMENTS. Upon the grant or exercise of an Option under this Plan by a Participant, the Committee may require the fulfillment of any reasonable conditions, and may require the Participant to deliver any documents deemed reasonably necessary, including but not limited to the following: (a) A written statement that the Participant is purchasing the shares of Common Stock for investment and not with a view toward their distribution or sale and will not sell or transfer any securities received except in accordance with the Securities Act and applicable state securities laws; and (b) Evidence reasonably satisfactory to the Company that at the Date of Grant or Date of Exercise the Participant meets any other Committee requirements. 12. COMPLIANCE WITH GOVERNMENTAL AND OTHER REGULATIONS. The Company will not be obligated to issue and sell the shares of Common Stock issued pursuant to grants hereunder if, in the opinion of its counsel, the issuance would violate any applicable federal 9 10 or state securities laws. The Company will seek to obtain from each regulatory commission or agency having jurisdiction any required authority to act hereunder. Inability of the Company to obtain from any regulatory commission or agency authority which counsel for the Company deems necessary for the lawful issuance of shares of Common Stock shall relieve the Company from any liability for failure to issue any shares until the authority is obtained. 13. NONASSIGNMENT OF OPTIONS. Except as otherwise provided in subparagraphs 6(c) and 6(e), any Option granted under this Plan and the rights and privileges conferred shall not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and shall not be subject to execution, attachment or similar process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of an Option, right or privilege contrary to the provision hereof, or upon the levy of any attachment or similar process upon the rights and privileges conferred hereby, the Option and the rights and privileges conferred hereby shall immediately terminate. 14. WITHHOLDING OF APPLICABLE TAXES. The Company shall have the right to reduce the number of shares of Common Stock otherwise required to be issued upon exercise of an Option granted hereunder by an amount which would have a Fair Market Value on the Date of Exercise equal to all Federal, state, city, or other taxes as shall be required to be withheld by the Company pursuant to any statute or any governmental regulation or ruling. In connection with all withholding obligations, the Company may make any other arrangements consistent with the Plan as it may deem appropriate, including but not limited to withholding taxes from compensation payable to the Participant and requiring the Participant to remit cash in an amount equal to the taxes required to be withheld. 15. PLAN AND GRANTS NOT TO AFFECT EMPLOYMENT. Neither the Plan nor any grant hereunder shall confer upon any Participant or Eligible Participant any right to continue in the employ of the Company or any Subsidiary. 16. INDEMNIFICATION. No member of the Board or the Committee shall be liable for any action or determination taken or made in good faith with respect to this Plan nor shall any member of the Board or the Committee be liable for any Agreement issued pursuant to this Plan or any grants under it. Each member of the Board and the Committee shall be indemnified by the Company against any losses incurred in such administration of the Plan, unless his action constitutes serious and willful misconduct. 17. CHANGE OF CONTROL. If there is a Change of Control of the Company, then, notwithstanding anything to the contrary in this Plan or any Agreement, each Option then outstanding shall become immediately and fully exercisable. The Option of a Participant whose employment with the Company is terminated for any reason within six (6) months following a Change of Control shall be immediately exercisable and remain exercisable for a period of six (6) months from the date of the Change of Control, but in no event, after the expiration of the exercise period stated therein. 10 11 18. AMENDMENT OF PLAN. The Committee may make any amendments to the Plan which may be required so that the Incentive Stock Options granted hereunder shall at all times have the status of incentive stock options for purposes of the Code, and may make any other amendments which it deems necessary or advisable, provided that the Company may seek shareholder approval of an amendment if determined to be required by or advisable under regulations of the Commission or the Internal Revenue Service, the rules of any stock exchange or system on which the Company's stock is listed or other applicable law or regulation. Notwithstanding the above, the provisions of the Plan governing: (i) the number of Formula Grants to be granted to a Non-Employee Director pursuant to paragraph 10, (ii) the number of Options to be covered by such Formula Grants, (iii) the Option Price under each Formula Grant, (iv) when and under what circumstances each such Formula Grant will be granted, and the period within which each such Formula Grant may be exercised shall not be amended more than once every six (6) months, other than to comply with changes in the Code, the Employee Retirement Income Security Act, the Securities Act or the rules thereunder. 19. APPROVAL OF SHAREHOLDERS. The Plan shall take effect upon adoption by the Board. Notwithstanding the foregoing, the Plan shall terminate and be of no force or effect unless the Plan is approved by the holders of a majority of the outstanding shares of common stock of the Company within twelve months of the Plan's adoption by the Board. 20. NOTICES. Any notice required or permitted hereunder shall be sufficiently given only if sent by registered or certified mail postage prepaid, addressed to the Company at its principal executive offices in Salt Lake City, Utah, and to the Participant at the address on file with the Company at the Date of Grant, or to the address designated by either party in writing to the other. 21. SUCCESSORS. The Plan shall be binding upon and inure to the benefit of any successor or successors of the Company. 22. SEVERABILITY. If any part of the Plan shall be determined to be invalid or void in any respect, such determination shall not affect, impair, invalidate or nullify the remaining provisions of this Plan which shall continue in full force and effect. 23. TERMINATION OF THE PLAN. The Committee may terminate this Plan at any time; otherwise the Plan shall terminate ten years after it is adopted by the Board. Termination of the Plan shall not deprive Participants of their rights under previously granted Options. 11 EX-4.2 3 JB'S RESTAURANT 1987 EMPLOYEE INCENTIVE STOCK OPT. 1 EXHIBIT 4.2 1987 EMPLOYEE INCENTIVE STOCK OPTION PLAN JB'S RESTAURANTS, INC. WHEREAS, it is the belief of the Board of Directors that the best interest of JB'S RESTAURANTS, INC. (hereinafter sometimes referred to as the "Corporation") will be served by increasing its ability to secure and retain highly qualified and experienced executive employees, through affording them an opportunity to acquire a stake in the future of the Corporation; and WHEREAS, it is the desire of the Board of Directors to assure by appropriate means the maximum efforts and fullest measure of continued loyal association with the Corporation on the part of the key executive employees; and WHEREAS, the Corporation has set aside for issuance a total of five hundred thousand (500,000) authorized shares of its $.10 par value common stock; and WHEREAS, the Corporation desires to provide its key executive employees with the added tax benefits available under an Employee Incentive Stock Option, as established by Section 422A of the Internal Revenue Code of 1986 (the "Code"); and WHEREAS, at the direction of the Board of Directors there has been prepared and submitted to the Board of Directors an Employee Incentive Stock Option Plan for the purpose of granting to key executive employees incentive stock options. NOW, THEREFORE, the Board of Directors of JB'S RESTAURANTS, INC. does hereby establish this Employee Incentive Stock Option Plan. 1. Purpose. This Employee Incentive Stock Option Plan (hereinafter sometimes referred to as the "Plan") is intended as an incentive to encourage stock ownership by certain key employees (whether or not officers) of JB'S RESTAURANTS, INC., so that they may acquire or increase their proprietary interest in the success of the Corporation and to encourage them to remain in the employ of the Corporation. 2. Administration. The Plan shall be administered by a committee appointed by the Board of Directors of the Corporation and shall be comprised of members of the Board of -1- 2 Directors (the "Committee"). The Committee shall consist of not less than three (3) members. The Board of Directors may from time to time remove members from, or add members to, the Committee. Vacancies on the Committee, howsoever caused, shall be filled by the Board of Directors from the Board of Directors. The Committee shall select one of its members as Chairman, and shall hold meetings at such times and places as it may determine necessary. A majority of the members of the Committee present at a meeting of the Committee at which a quorum is present, or acts reduced to or approved in writing by a majority of the members of the Committee, shall be the valid acts of the Committee. The Committee shall from time to time at its discretion make recommendations to the Board of Directors with respect to the key executive employees who shall be granted options and the amount of stock to be optioned to each. Committee members who are otherwise eligible under Article 3 below, shall be eligible to receive options under this Plan; provided, however, a Committee member shall abstain from any vote of the Committee with respect to the recommendation of the Committee to the Board of Directors to award options to such Committee member. The interpretation and construction by the Committee of any provision of the Plan or of any option granted under it shall be final unless otherwise determined by the Board of Directors. No member of the Board of Directors or the Committee shall be liable for any action or determination made in good faith with respect to the Plan or any option granted under it. 3. Eligibility. The persons who shall be eligible to receive options shall be such key employees (including officers, whether or not they are directors) of the Corporation as the Board of Directors shall select from time to time from among those nominated by the Committee who are employees of the Corporation on the date the option is granted. No employee shall be eligible to receive options, if at the date the options are granted, such employee owns stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Corporation or of any parent or subsidiary corporation, including stock attributable to the employee pursuant to Section 425(d) of the Internal Revenue Code; provided, however, that any such employee who would have been otherwise eligible, but for the fact that such employee owns stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock, as provided above, shall be eligible to receive options if, at the time any option is granted, the option price for such employee is at -2- 3 least 110% of the fair market value of the stock, as provided in Article 5(c). 4. Stock. The stock subject to the options shall be shares of the authorized but unissued or reacquired $.10 par value common stock (hereinafter sometimes called "Capital Stock") of JB'S RESTAURANTS, INC. The aggregate number of shares which may be issued under options shall not exceed five hundred thousand (500,000) shares of Capital Stock. The limitations established by each of the preceding sentences shall be subject to adjustment as provided in Article 5(h) of the Plan. In the event that any outstanding option under the Plan for any reason expires or is terminated, the shares of Capital Stock allocable to the unexercised portion of such option may again be subjected to an option under the Plan. 5. Terms and Conditions of Options. Stock options granted pursuant to the Plan shall be authorized by the Board of Directors and shall be evidenced by agreements in such form as the Committee shall from time to time recommend and the Board of Directors shall comply with and be subject to the following terms and conditions: (a) Employment Arrangement. The granting of an option to any Employee shall not impose upon the Corporation any obligation to retain the employee in its employ for any period. (b) Number of Shares. Each option shall state the number of shares of Capital Stock to which it pertains. (c) Option Price. Each option shall state the option price, which shall be not less than 100% of the fair market value of the shares of Capital Stock of the Corporation an the date of the granting of the option, subject to the provisions of Article 3 in the case of any employee who owns stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Corporation. (d) Medium and Time of Payment. The option price shall be payable in monies of the United States upon the exercise of the option and may be paid by cash or check, or by direct withdrawal from the -3- 4 employee's compensation as approved by the employee. The option may be exercised by written notice to the Corporation at its principal office. The notice shall state the election to exercise the option and shall either: (a) be accompanied by payment of the full purchase price of such shares of Capital Stock, in which event the Corporation shall deliver a certificate or certificates representing such stock as soon as practical after the notice shall be received; or (b) fix a date (not less than five nor more than ten business days from the date such notice shall be received by the Corporation) for the payment of the full purchase price of such stock, against delivery of a certificate or certificates representing such stock. (e) Terms and Exercise of Option. Each option granted may be exercised only as provided in the option agreement executed by the Corporation and the employee, which shall contain such restrictions as to a vesting schedule for exercise of the options granted as the Committee may, in its sole discretion, determine appropriate, and as approved by the Board of Directors. Notwithstanding anything in this Plan to the contrary, all options granted under this Plan shall expire and may not be exercised to any extent after the expiration of five (5) years from the date the option is granted. Not less than one hundred (100) shares of Capital Stock may be purchased at any time, unless the number purchased is the total number of shares of Capital Stock at the time purchasable under the option. During the lifetime of the employee, the option shall be exercisable only by him and shall not be assignable or transferable by him, other than by will or the laws of descent and distribution, as provided in Article 5(g), and no other person shall acquire any rights therein. (f) Termination of Employment Except Death. If the employee shall cease to be employed by the Corporation for any reason except disability or death, the option, to the extent not theretofore exercised, shall be deemed cancelled forthwith, except that the Committee in its absolute discretion may extend the privilege to such employee to exercise the option theretofore granted to him within three months after such cessation of employment, to the extent otherwise exercisable had employment not ceased. Furthermore, -4- 5 if any such cessation of employment is caused by the employee's retirement at the age of 65 or thereafter, the employee shall have the right to exercise the option within three months after such retirement, to the extent otherwise exercisable, had employment not ceased. Whether authorized leave of absence or absence for military or governmental service shall constitute termination of employment for the purposes of the Plan, shall be determined by the Committee, which determination, unless overruled by the Board of Directors, shall be final and conclusive. (g) Death or Disability of Employee and Transfer of Option. If the employee shall die or if the employee shall become disabled (within the meaning of Section 422A(c)(9) of the Code) while in the employ of the Corporation and shall not have fully exercised the option, the option may be exercised (subject to the condition that no option shall be exercisable after the expiration of five (5) years, to the extent that the employee's right to exercise such option had accrued at the time of his death or disability, and had not previously been exercised, at any time within one (1) year after the employee's death or disability, by the employee or his legal representative, in the case of disability, or by the personal representatives, executors or administrators of the employee's estate, in the case of death, or by any person or persons who shall have acquired the option directly from the employee by bequest or inheritance. The option shall not be transferable by the employee otherwise than by will or the laws of descent and distribution. (h) Recapitalization. Subject to any required action by the stockholders, the number of shares of Capital Stock covered by the option and the price per share thereof shall be proportionately adjusted for any increase or decrease in the number of issued shares of Capital Stock of the Corporation resulting from a subdivision or consolidation of shares or the payment of a stock dividend or any other increase or decrease in the number of such shares affected without receipt of consideration by the Corporation. Subject to any required action by the stockholders, if the Corporation shall be the -5- 6 surviving corporation in any merger or consolidation, each outstanding option shall pertain to and apply to the securities to which a holder of the number of shares of Capital Stock subject to the option would have been entitled. In the event of a dissolution or liquidation of the Corporation or a merger or consolidation in which the Corporation is not the surviving corporation, the employee shall have the right, during the period between sixty and thirty days prior to the effective date of such dissolution or liquidation, or merger or consolidation, in which the Corporation is not the surviving corporation, to exercise his option in whole or in part without regard to any provision of the option agreement between the Corporation and the employee. The Corporation shall inform each employee of the pendency of any such dissolution, liquidation, or merger or consolidation in which the Corporation is not the surviving corporation, in sufficient time to have the full aforesaid period to exercise his option. In the event of a change in the Capital Stock of the Corporation as presently constituted, the shares resulting from any such change shall be deemed to be Capital Stock within the meaning of the Plan. To the extent that the foregoing adjustments relate to stock or securities of the Corporation, such adjustments shall be made by the Committee, whose determination in that respect shall be final, binding and conclusive. Except as hereinbefore expressly provided in this Article 5(h), the employee shall have no rights by reason of any subdivision or consolidation of shares of stock of any class or the payment of any stock dividend or any other increase or decrease in the number of shares of stock of any class or by reason of any dissolution, liquidation, merger, consolidation or spin-off of assets or stock of another corporation, and any issue by the Corporation of shares of stock of any class, or securities convertible into shares of stock of any class, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares of Capital Stock subject to the option. -6- 7 The grant of an option pursuant to the Plan shall not affect in any way the right or power of the Corporation to make adjustments, reclassifications, reorganizations or changes of its capital or business structure or to merge, consolidate, dissolve, liquidate, sell, or transfer all or any part of its business or assets. (i) Value of Shares Issued. Notwithstanding anything to the contrary provided herein, the aggregate fair market value, as determined at the time the option is granted, of the Capital Stock for which any eligible employee may be granted an option exercisable for the first time by such employee in any calendar year under this Plan or any other incentive stock option plan (within the meaning of Section 422A of the Code) of the Corporation, a predecessor corporation, or a parent or subsidiary corporation of the Corporation, shall not exceed $100,000. (j) Rights as a Stockholder. An employee or an authorized transferee of an option shall have no rights as a stockholder with respect to any shares of Capital Stock covered by his option until the date of the issuance of a stock certificate to him for such stock. No adjustment shall be made for dividends (ordinary or extraordinary, whether in cash, securities or other property) or distributions or other rights for which the record date is prior to the date such stock certificate is issued, except as provided in Article 5(h) hereof. (k) Modification. Extension and Renewal of Options. Subject to approval of the Board of Directors of the Corporation, strictly in accordance with the statutorily imposed limitations and conditions of Section 422A and the Plan, the Committee may modify, extend or renew outstanding options granted under the Plan, or accept the surrender of outstanding options (to the extent not theretofore exercised) and authorize the granting of new options in substitution therefor (to the extent not theretofore exercised). Notwithstanding the foregoing, however, without the consent of the employee, no modification of an option shall alter or impair any rights or obligations under any option theretofore granted under the Plan. -7- 8 (l) Restriction on Option Exercise. Notwithstanding any contrary provisions of this Plan, no option granted under the Plan may be exercised by the employee unless the shares of Capital Stock to be acquired by the employee pursuant to the Plan have been registered under the Securities Act of 1933 (the "Act"), the securities laws of Utah, and any other applicable securities laws of any other state, or the Corporation receives an opinion of counsel (which may be counsel for the Corporation) reasonably acceptable to the Corporation stating that the exercise of the option and the issuance of shares of Capital Stock pursuant to the exercise is exempt from such registration requirements. The employee shall represent that unless and until the shares of Capital Stock have been registered under the Act and applicable state securities laws: (1) the employee will be acquiring the shares of Capital Stock upon exercise for investment purposes only and without the intent of making any sale or disposition thereof, (2) the employee has been advised and understands that the shares of Capital Stock underlying the options have not been registered for sale pursuant to federal and state securities laws and are "restricted securities" under such laws, and (3) the employee acknowledges that the shares of Capital Stock will be subject to stop transfer instructions and certificates for such shares shall bear the following legend in addition to any other legend set forth in the Plan: THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, THE UTAH UNIFORM SECURITIES ACT OR UNDER ANY OTHER STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF REGISTRATION OR THE AVAILABILITY OF AN EXEMPTION FROM SUCH REGISTRATION. NO OFFER, SALE OR TRANSFER MAY TAKE PLACE WITHOUT PRIOR WRITTEN APPROVAL OF THE COMPANY BEING AFFIXED HERETO. IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT, SUCH APPROVAL SHALL BE GRANTED ONLY IF THE COMPANY HAS RECEIVED AN OPINION OF SHAREHOLDER'S COUNSEL AT SHAREHOLDER'S EXPENSE SATISFACTORY TO THE COMPANY TO THE EFFECT THAT THIS CERTIFICATE MAY BE LAWFULLY TRANSFERRED PURSUANT TO AN EXEMPTION FROM REGISTRATION. (m) Other Provisions. The option agreements authorized under the Plan shall contain such other -8- 9 provisions, including, without limitation, restrictions upon the exercise of the option, as the Committee and the Board of Directors shall deem advisable. (n) Restrictions on Transfer of Shares. An employee or an authorized transferee of an option who purchases Capital Stock by exercise of an option, may not dispose of such Capital Stock within two (2) years from the date of the granting of the option, or within one (1) year after the transfer of such stock to the purchaser without losing the purchaser's right to treat such stock as an "incentive stock option" under Section 422A of the Code. The certificates for the shares of Capital Stock issued to the purchaser by exercise of this option shall bear the following legend: THE TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS RESTRICTED BY THE TERMS OF AN EMPLOYEE INCENTIVE STOCK OPTION PLAN, A COPY OF WHICH IS ON FILE AT THE CORPORATION'S OFFICE IN SALT LAKE CITY, UTAH. 6. Term of Plan. Options may be granted pursuant to the Plan from time to time within a period of five (5) years from the date this Plan is adopted, or the date this Plan is approved by the stockholders, whichever is earlier; no options shall be granted after such date. Any options issued during this period which comply with the provisions of this Plan shall be considered as having been granted pursuant to this Plan. 7. Indemnification of Committee. In addition to such other rights of indemnification as they may have as directors or as members of the Committee, the members of the Committee shall be indemnified by the Corporation against reasonable expenses, including attorneys' fees, actually and necessarily incurred in connection with the defense of any action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan or any option granted thereunder, and against all amounts paid by them in settlement thereof (provided such settlement is approved by independent legal counsel selected by the Corporation) or paid by them in satisfaction of a judgment in any such action, suit or proceeding, except in relation to -9- 10 matters as to which it shall be adjudged in such action, suit or proceeding that such Committee member is liable for negligence or misconduct in the performance of his duties; provided that within sixty days after institution of any such action, suit or proceeding, a Committee member shall, in writing, offer the Corporation the opportunity, at its own expense, to handle and defend the same. 8. Amendment of the Plan. The Board of Directors may, insofar as permitted by law and the provisions of Section 422A, from time to time, with respect to any shares of Capital Stock at the time not subject to options, suspend or discontinue the Plan or revise or amend it in any respect whatsoever except that, without approval of the stockholders, no such revision or amendment shall change the number of shares of Capital Stock authorized under the Plan, change the designation of the class of employees eligible to receive options, decrease the price at which options may be granted or remove the administration of the Plan from the Committee. 9. Application of Funds. The proceeds received by the Corporation from the sale of Capital Stock pursuant to options will be used for general corporate purposes. 10. No Obligation to Exercise Option. The granting of an option shall impose no obligation upon the employee to exercise such option. 11. Approval of Stockholders. The Plan shall take effect upon adoption by the Board of Directors of the Corporation. Notwithstanding the foregoing, however, the Plan shall terminate and become null and void and of no force or effect whatsoever unless the Plan is approved by the holders of a majority of the outstanding shares of each class of stock of the Corporation, which approval must occur within the period beginning twelve months before and ending twelve months after the date the Plan is adopted by the Board of Directors. 12. Miscellaneous. The headings and captions appearing herein are inserted only as a matter of convenience and reference, and in no way define, limit, or describe the scope or intent of this Plan, or any of the provisions hereof. Unless the context requires otherwise, as used herein, each gender shall include all genders. It is the intention of the Corporation that the Plan be construed in accordance with the laws of the State of Utah. 13. Severability. It is the intent of the Board of Directors that the options granted pursuant to the terms of -10- 11 this Plan shall qualify for treatment under Section 422A of the Code as incentive stock options. To that end, should any provision of this Plan be determined to invalidate such incentive stock option treatment, such provision shall not be a part of this Plan, and shall be severable from and shall not affect the remaining provisions of this Plan. Date Plan adopted by Board of Directors: April 21, 1987 ------------------ Date Plan approved by Stockholders: ---------------------- -11- EX-4.3 4 JB'S RESTAURANT 1987 NONQUALIFIED STOCK OPTION 1 EXHIBIT 4.3 JB'S RESTAURANTS, INC. 1987 NONQUALIFIED STOCK OPTION PLAN 1. Purposes and Scope. The purposes of JB's Restaurants, Inc. 1987 Nonqualified Stock Option Plan (the "Plan") are to encourage stock ownership by members of the Board of Directors (the "Board"), of JB's Restaurants, Inc. and its subsidiaries (collectively, the "Company"), to provide an incentive for Board members to expand and improve the business and financial success of the Company and to attract and retain qualified people through the grant of options to purchase shares of the Company's common stock. 2. Approval by Board of Directors. The Plan shall become effective upon its adoption by the Board. 3. Common Stock to be Optioned. Subject to the provisions of paragraph 11 of the Plan, there shall be reserved for issuance and transfer upon the exercise of options under the Plan 120,000 shares of the Company's Common Stock, $.10 par value ("Common Stock"). The shares may be treasury, or authorized but unissued, shares of Common Stock. If any option granted under the Plan expires or terminates for any reason without having been exercised in full, the shares for which the option has not been exercised shall again be available to be granted as options under the Plan. 4. Administration. The Plan shall be administered by a committee of at least three directors or officers of the Company (the "Committee"). A majority of the members of the Committee shall constitute a quorum for the transaction of business. The Committee shall keep minutes of all its proceedings. Committee members shall be elected, removed and replaced by the Board. The Committee shall be solely responsible for the operation and administration of the Plan. The Committee shall have complete authority to make decisions regarding the timing of option grants, to whom options are granted, at what price per share options will be granted, the number of shares involved, and any other terms or conditions of the options not inconsistent with the provisions of the Plan. The interpretation and construction of any provision of the Plan by the Committee shall be final. No member of the Board or the Committee shall be liable for any action or determination made by the member in good faith. 5. Eligibility. The Committee may grant options to any director of the Company who is not also an employee (hereinafter referred to as "participants"). Options may be awarded by the Committee at any time and from time to time to new participants, 2 JB'S RESTAURANTS, INC. 1987 NONQUALIFIED STOCK OPTION PLAN Page 2 or to then participants, or to a greater or lesser number of participants, and may include or exclude previous participants, as the Committee shall determine. Options granted to participants need not contain similar provisions. 6. Option Price. The purchase price for the Common Stock granted under each option shall be set by the Committee at the time the option is granted. The purchase price may be less than the fair market value of the Common Stock on the date of grant but may not be less than the Common Stock's par value. 7. Terms and Conditions of Options. Options granted pursuant to the Plan shall be authorized by the Committee and shall be evidenced by agreements whose form has been approved by the Committee. The agreements shall comply with and be subject to the following terms and conditions: (a) Time and Method of Payment. At the time any portion of an option is exercised under the Plan, the option purchase price shall be paid in full in cash. Otherwise, an exercise of any option granted under the Plan shall be invalid and of no effect. Each option agreement, as determined by the Committee, may contain other requirements as to notice, documents to be executed or information to be provided by a participant desiring to exercise an option. Promptly after the exercise of an option and the payment of the full purchase price, the participant shall be entitled to the issuance of a stock certificate evidencing his ownership of the Common Stock. A participant shall have none of the rights of a shareholder until shares are issued to him or her, and no adjustment will be made for dividends or other rights for which the record date is prior to the date the stock certificate is issued. (b) Number of Shares. Each option agreement shall state the total number of shares of Common Stock to which it pertains. (c) Option Period and Limitations on Exercise of Options. The Committee may, in its discretion, provide that an option may not be exercised in whole or in part for any period or periods of time specified in the option agreement. Except as provided in the option agreement, an option may be exercised in whole or in part at any time during its term. No option may be exercised after the expiration of ten years from the date it is granted. No option may be exercised for a fractional share of stock. 3 JB'S RESTAURANTS, INC. 1987 NONQUALIFIED STOCK OPTION PLAN Page 3 8. Rights in Event of Death. If a participant dies without having fully exercised an option granted pursuant to the Plan, the executors or administrators, or legatees or heirs, of the participant's estate shall have the right to exercise the option to the extent the deceased participant was entitled to exercise the option on the date of the participant's death. 9. No Obligations to Exercise Option. The granting of an option shall impose no obligation upon the participant to exercise such option. 10. Nonassignability. Options shall not be transferable other than by will or by the laws of descent and distribution, and during a participant's lifetime shall be exercisable only by the participant's guardian or legal representative. 11. Antidilution. The aggregate number of shares of Common Stock available for options under the Plan, the shares subject to any option, and the price per share shall all be proportionately adjusted for any increase or decrease in the number of issued shares of Common Stock subsequent to the effective date of the Plan resulting from a reorganization, recapitalization, reclassification, combination, stock split, stock dividend, or other increase or decrease in the number of shares outstanding, effected without receipt of consideration by the Company. If the Company shall be the surviving corporation in any merger or consolidation, any option shall pertain, apply and relate to the securities to which a holder of the number of shares of Common Stock subject to the option would have been entitled after the merger or consolidation. Upon dissolution or liquidation of the Company, or upon a merger or consolidation in which the Company is not the surviving corporation, all options outstanding under the Plan shall terminate. 12. Amendment and Termination. The Board may terminate, amend or revise the Plan with respect to any shares as to which options have not been granted. Neither the Board nor the Committee may, without the consent of the holder of an option, alter or impair any option previously granted under the Plan, except as authorized by the Plan. Unless sooner terminated, the Plan shall remain in effect for a period of ten years from the date of the Plan's adoption by the Board. Termination of the Plan shall not affect any option previously granted. 13. Reservation of Shares of Stock. The Company, during the term of this Plan, will at all times reserve and keep available, and will seek or obtain from any regulatory body having jurisdiction, 4 JB'S RESTAURANTS, INC. 1987 NONQUALIFIED STOCK OPTION PLAN Page 4 any requisite authority necessary to issue and to sell the number of shares of Common Stock that shall be sufficient to satisfy the requirements of this Plan. The inability of the Company to obtain from any regulatory body having jurisdiction the authority deemed necessary by counsel for the Company for the lawful issuance and sale of its Common Stock hereunder, shall relieve the Company of any liability in respect of the failure to issue or sell Common Stock as to which the requisite authority has not been obtained. 14. Date of Adoption. This Nonqualified Stock Option Plan is adopted as of February 13, 1987. 15. Restriction on Option Exercise. Notwithstanding any contrary provisions of this Plan, any option granted under the Plan may not be exercised by the employee unless the shares to be acquired by the employee pursuant to the Plan have been registered under the Securities Act of 1933 (the "Act"), the securities laws of Utah, and any other applicable securities laws of any other state, or the Corporation receives an opinion of counsel (which may be counsel for the Corporation) reasonably acceptable to the Corporation stating that the exercise of the option and the issuance of shares pursuant to the exercise is exempt from such registration requirements. The employee shall represent that unless and until the shares have been registered under the Act and applicable state securities laws: (1) the employee will be acquiring the shares upon exercise for investment purposes only and without the intent of making any sale or disposition thereof; (2) the employee has been advised and understands that the shares underlying the options have not been registered for sale pursuant to federal and state securities laws and are "restricted securities" under such laws; and (3) the employee acknowledges that the shares will be subject to stop transfer instructions and bear the following legend in addition to any other legend set forth in the Plan: THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, THE UTAH UNIFORM SECURITIES ACT OR UNDER ANY OTHER STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF REGISTRATION OR THE AVAILABILITY OF AN EXEMPTION FROM SUCH REGISTRATION. NO OFFER, SALE OR TRANSFER MAY TAKE PLACE WITHOUT PRIOR WRITTEN APPROVAL OF THE COMPANY BEING AFFIXED HERETO. IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT, SUCH APPROVAL SHALL BE GRANTED ONLY IF THE COMPANY HAS RECEIVED AN OPINION OF SHAREHOLDER'S COUNSEL AT SHAREHOLDER'S EXPENSE SATISFACTORY TO THE COMPANY TO THE EFFECT THAT THIS CERTIFICATE MAY BE LAWFULLY TRANSFERRED PURSUANT TO AN EXEMPTION FROM REGISTRATION. * * * * * EX-4.4 5 JB'S RESTAURANTS 1984 INCENTIVE STOCK OPTION PLAN 1 EXHIBIT 4.4 JB'S RESTAURANTS, INC. 1984 INCENTIVE STOCK OPTION PLAN As Amended on February 13, 1987 1. Purpose. The purpose of the Plan is to compensate employees of the Company for their services rendered on behalf of the Company and to provide incentive for future services beneficial to the Company, by the grant of options to purchase shares of the Company's common stock, in the number of shares and at the times selected by a disinterested committee of three members of the Company's Board of Directors. The Plan was approved by a vote of a majority of the total outstanding shares of the Company at the annual meeting of shareholders held February 15, 1985. 2. Common Stock Available. A maximum of 225,000 shares of the Company's common stock shall be available to participants under the Plan. Within the limitations contained in the Plan, the Plan administrators shall determine the times at which options shall be granted, to whom they will be granted, and the number of shares involved. 3. Eligible Participants. Those eligible to participate in the Plan are all employees of the Company at the supervisor level or above. 4. Administration. The Plan shall be administered by a disinterested committee of three non-participating members of the Board of Directors, elected by a majority of the remaining members of the Board of Directors. A majority of the committee must concur in all actions to be taken with respect to the Plan. Vacancies in the committee shall be filled by majority vote of those members of the Board of Directors not serving on the committee. 5. Option Terms. The Stock Option Agreement granted to each optionee shall be substantially in the form of the Stock Option Agreement presented to the meeting of the Board of Directors held October 11, 1984, and shall reflect material modifications to the Plan. Notwithstanding anything to the contrary in said Stock Option Agreement, the terms of each option granted pursuant to this Plan shall include the following, pursuant to the requirements of IRC Section 422A(b): (a) Term of Plan. No option may be granted pursuant to this Plan after ten years from the date hereof. -1- 2 JB'S RESTAURANTS, INC. 1984 INCENTIVE STOCK OPTION PLAN Page 2 (b) Term of Option. No option granted pursuant to this Plan shall be exercisable after the expiration of the option term, which shall commence an the date the option is granted, and shall terminate on the first to occur of: (i) the date such option has been exercised in full; (ii) the end of the three month period immediately following the last day that the optionee is employed by the Company, or its subsidiaries; or (iii) five years from the date the option is granted. (c) Option Price. The option price for each share of stock under this Plan shall be the fair market value of the stock on the date the option is granted ("valuation date"), determined as follows: (i) The average of the highest and lowest quoted selling price on the valuation date. (ii) If there are no sales on the valuation date, but sales occur within a reasonable time before and after the valuation date, then the fair market value shall be determined by taking a weighted average of the means between the highest and lowest sales on the nearest date before and the nearest date after the valuation date, weighted inversely by the respective numbers of trading dates between the selling dates and the valuation date. (iii) If there are no sales on the valuation date, or within a reasonable time before and after the valuation date, then the fair market value shall be determined by taking the mean between the bona fide "bid" and "ask" prices on the nearest trading date before and the nearest trading date after the valuation date, weighted in the manner specified in subparagraph (ii) above. (d) Transfer of Option. The options granted pursuant to this Plan shall not be transferred in any manner except upon the death of the optionee by will or by the laws of descent and distribution. During the lifetime of each optionee, the option granted him shall be exercisable only by him. -2- 3 JB'S RESTAURANTS, INC. 1984 INCENTIVE STOCK OPTION PLAN Page 3 (e) Outstanding Options. (i) Options Granted Prior to January 1, 1987. Each option granted prior to January 1, 1987, pursuant to this Plan shall not be exercisable while there is outstanding any prior incentive stock option (as defined in IRC Section 422A(b)) to purchase stock in the Company, in a predecessor corporation of the Company, or any corporation which at the time of the granting of each option is a parent corporation or subsidiary corporation of the Company, which was granted to the optionee before the grant of any option granted pursuant to this Plan. For this purpose, any such prior incentive stock option shall be deemed to be outstanding until such option is exercised in full or expires by reason of lapse of time. (ii) Options Granted after December 31, 1986. Options granted after December 31, 1986, pursuant to this Plan may be exercised without regard to whether other incentive stock options granted to the optionee prior or subsequent to the current grant remain outstanding, whether such other grants are made pursuant to this Plan or to prior or subsequent incentive stock option plans. (f) Annual Limitation. (i) Options Granted Prior to January 1, 1987. For options granted prior to January 1, 1987, the aggregate fair market value (determined as of the time the option is granted) of stock of the Company, or of its parent corporation or subsidiary corporation, for which an optionee may be granted options pursuant to this Plan and all other incentive stock option plans of the Company, and of its parent corporation or subsidiary corporation, during any calendar year, shall not exceed $100,000 plus any unused limit carryover (as defined in IRC Section 422A(c)(4)) to such year. (ii) Options Granted after December 31, 1986. For options granted after December 31, 1986, the aggregate fair market value (determined at the time the option is granted) of the common stock of the Company, or of its parent or subsidiary corporations, with respect to which incentive stock options are exercisable for the first time by an optionee during any calendar year, pursuant to this Plan and all other incentive stock option plans of the Company or of its parent or subsidiary corporations, shall not exceed $100,000. -3- 4 JB'S RESTAURANTS, INC. 1984 INCENTIVE STOCK OPTION PLAN Page 4 (g) Exercise With Outstanding Stock. Each option granted pursuant to this Plan shall provide that the optionee may exercise such option with an amount of shares of the Company's stock already owned by the optionee which has a fair market value as determined by the Board of Directors equal to the purchase price of the stock to be purchased upon such exercise. The Board of directors shall determine such fair market value in the manner set forth in subparagraph (d) hereinabove, with the date of such exercise being deemed the "valuation date." (h) Vesting Schedule. Each optionee of options granted pursuant to this Plan shall be able to exercise his option only with respect to: (i) 20% of the total number of shares which may be purchased pursuant to such option, during the one year period beginning on the date such option is granted; and (ii) 20% of said total number of shares during each succeeding period of one year during the term of the option, together with that number of shares which could have been purchased under the option, but were not, in any preceding one year period during the term of the option. 6. Amendment or Termination. This Plan may be amended by the Board of Directors from time to time to the extent that the Board of Directors deems necessary or appropriate in light of, and consistent with, the provisions of IRC Section 422A; provided, however, that no such amendment shall be made absent the approval of shareholders of the Company holding at least a majority of the shares of the Company (i) to increase or decrease the number of shares of stock which may be issued under options pursuant to this Plan, (ii) to change the class of employees eligible for the grant of options pursuant to this Plan or to otherwise materially modify (within the meaning of Rule 16b-3 of the Securities and Exchange Act of 1934, as amended) the benefits accruing to participants under the Plan. The Board of Directors may also suspend the granting of incentive stock options pursuant to this Plan at any time and may terminate this Plan at any time; provided, however, that no such suspension or termination shall modify or amend any incentive stock option granted before such suspension or termination unless (i) the optionee consents in writing to such modification or amendment or (ii) there is a dissolution or liquidation of the Company. * * * * * -4- EX-5.1 6 OPINION OF STRADLING, YOCCA, CARLSON & RAUTH 1 [STRADLING, YOCCA, CARLSON & RAUTH LETTERHEAD] EXHIBIT 5.1 September 20, 1996 CKE Restaurants, Inc. 1200 North Harbor Boulevard Anaheim, California 92801 RE: Registration Statement on Form S-8 Gentlemen: At your request, we have examined the form of Registration Statement on Form S-8 (the "Registration Statement") being filed by CKE Restaurants, Inc., a Delaware corporation (the "Company"), with the Securities and Exchange Commission in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 51,406 shares of the Company's common stock, $0.01 par value ("Common Stock"), issuable under the 1992 Stock Option Plan (the "1992 Plan"), the 1987 Employee Incentive Stock Option Plan (the "1987 Employee Plan"), the 1987 Nonqualified Stock Option Plan (the "1987 NQSO Plan"), and the 1984 Incentive Stock Option Plan (the "1984 Plan") (collectively, the "Plans"). We have examined the proceedings heretofore taken and are familiar with the additional proceedings proposed to be taken by the Company in connection with the authorization, issuance and sale of the securities referred to above. Based on the foregoing, it is our opinion that 51,406 shares of Common Stock, when issued under the Plans and against full payment in accordance with the respective terms and conditions of the Plans, will be legally and validly issued, fully paid and nonassessable. We consent to the use of this opinion as an exhibit to the Registration Statement. Very truly yours, STRADLING, YOCCA, CARLSON & RAUTH EX-23.2 7 CONSENT OF KPMG PEAT MARWICK LLP FOR CKE 1 EXHIBIT 23.2 [KPMG PEAT MARWICK LLP LETTERHEAD] CONSENT OF INDEPENDENT AUDITORS The Board of Directors CKE Restaurants, Inc.: We consent to the use of our report relating to CKE Restaurants, Inc. dated March 19, 1996, on Form S-8 of CKE Restaurants, Inc. incorporated herein by reference. KPMG PEAT MARWICK LLP Orange County, California September 20, 1996 EX-23.3 8 CONSENT OF KPMG PEAT MARWICK LLP FOR SUMMIT 1 EXHIBIT 23.3 CONSENT OF INDEPENDENT AUDITORS The Board of Directors Summit Family Restaurants, Inc.: We consent to the use of our report relating to Summit Family Restaurants, Inc. dated November 3, 1995, except as to Note 15 which is as of May 16, 1996 on Form S-8 of CKE Restaurants, Inc. incorporated herein by reference. KPMG PEAT MARWICK LLP Salt Lake City, Utah September 20, 1996 -----END PRIVACY-ENHANCED MESSAGE-----