-----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, DAutzR2he5OY95hvKpkpOiZDZgkjg5JgemU+aZVILFAJBDXtbYipYhojXqzyRLPI MxDuwJlGkVQu4m44+vvqaA== /in/edgar/work/0001095811-00-001943/0001095811-00-001943.txt : 20000713 0001095811-00-001943.hdr.sgml : 20000713 ACCESSION NUMBER: 0001095811-00-001943 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000712 EFFECTIVENESS DATE: 20000712 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CKE RESTAURANTS INC CENTRAL INDEX KEY: 0000919628 STANDARD INDUSTRIAL CLASSIFICATION: [5812 ] IRS NUMBER: 330602639 STATE OF INCORPORATION: DE FISCAL YEAR END: 0125 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-41266 FILM NUMBER: 671858 BUSINESS ADDRESS: STREET 1: 401 WEST CARL KARCHER WAY CITY: ANAHEIM STATE: CA ZIP: 92801 BUSINESS PHONE: 7147745796 MAIL ADDRESS: STREET 1: 401 WEST CARL KARCHER WAY CITY: ANAHEIM STATE: CA ZIP: 92801 S-8 1 s-8.txt FORM S-8 1 As Filed With the Securities and Exchange Commission on July 12, 2000 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 (I.R.S. Employer incorporation or organization) Identification No.) 401 W. Carl Karcher Way, Anaheim, California 92801 - -------------------------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) ---------------------- 1999 STOCK INCENTIVE PLAN - -------------------------------------------------------------------------------- (Full title of the plans) ---------------------- ROBERT A. WILSON Senior Vice President and Assistant Secretary CKE Restaurants, Inc. 401 W. Carl Karcher Way, Anaheim, CA 92801 - -------------------------------------------------------------------------------- (Name and address of agent for service) (714) 774-5796 - -------------------------------------------------------------------------------- (Telephone number, including area code, of agent for service) Copies to: C. Craig Carlson, Esq. Stradling Yocca Carlson & Rauth, a Professional Corporation 660 Newport Center Drive, Suite 1600, Newport Beach, California 92660 (949) 725-4000 CALCULATION OF REGISTRATION FEE
==================================================================================================================== Proposed Maximum Offering Proposed Maximum Amount of Title of Securities to Amount to be Price Per Aggregate Registration be Registered be Registered(1) Share(2) Offering Price Fee - -------------------------------------------------------------------------------------------------------------------- Common Stock, $.01 par value 358,350 shares(3) $3.3125 $1,187,034.30 $ 313.38 - ---------------------------- ----------------------------------------------------------------------------------- Common Stock, $.01 par value 1,651,650 shares(4) $3.3125 $5,471,109.60 $1,444.37 ====================================================================================================================
(1) Also registered hereunder are an indeterminate number of shares which may become issuable pursuant to the anti-dilution adjustment provisions of the Registrant's 1999 Stock Incentive Plan (the "1999 Plan"). (2) In accordance with Rule 457(h), the aggregate offering price of shares of Common Stock registered hereby is estimated, solely for purposes of calculating the registration fee, on the basis of (a) a weighted per share exercise price of $3.3125 with respect to outstanding options to purchase 358,350 shares; and (b) the price of securities of the same class, as determined in accordance with Rule 457(c), using the average of the high and low prices reported by the New York Stock Exchange for the Common Stock on July 5, 2000, which was $3.3125 per share, with respect to the 1,651,650 shares reserved for issuance. (3) Issuable upon exercise of options granted under the 1999 Plan which are presently outstanding. (4) Shares reserved for issuance pursuant to the 1999 Plan. See note 3 showing 358,350 presently outstanding options under the 1999 Plan. ================================================================================ 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed by CKE Restaurants, Inc. (the "Registrant" or the "Company") with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated by reference in this registration statement: (a) the Company's Annual Report on Form 10-K, as amended, for the fiscal year ended January 31, 2000; (b) the Company's Quarterly Report on Form 10-Q for the quarterly period ended May 22, 2000; and (c) the description of the Registrant's common stock, par value $.01 per share (the "Common Stock"), 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 de-registers all of such securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement 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. The Registrant's Certificate of Incorporation limits, to the maximum extent permitted by Delaware law, the personal liability of directors for monetary damages for breach of their fiduciary duties as a director. The Registrant's Bylaws provide that the Registrant shall indemnify its officers and directors and may indemnify its employees and other agents to the fullest extent permitted by Delaware Law. Section 145 of the DGCL provides that a corporation may indemnify any person made a party to an action (other than an action by or in the right of the corporation) by reason of 2 3 the fact that he or she was a director, officer, employee or agent of the corporation or was serving at the request of the corporation against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal action (other than an action by or in the right of the corporation), has no reasonable cause to believe his or her conduct was unlawful. 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 1999 Stock Incentive Plan (incorporated by reference to same numbered exhibit to the Registrant's Registration Statement on Form S-8, Reg. No. 333-83601) 4.1.1 Amendment to 1999 Stock Incentive Plan 5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional Corporation 23.1 Consent of KPMG LLP, independent auditors, with respect to the consolidated financial statements of the Registrant 23.2 Consent of Stradling Yocca Carlson & Rauth, a Professional Corporation (included in the Opinion filed as Exhibit 5.1) 24.1 Power of Attorney (included on the signature page) ITEM 9. UNDERTAKINGS. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; 3 4 (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 these 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. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 4 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 12th day of July 2000. CKE Restaurants, Inc. By: /s/ C. THOMAS THOMPSON -------------------------------- C. Thomas Thompson Chief Executive Officer and President POWER OF ATTORNEY We, the undersigned directors and officers of CKE Restaurants, Inc. do hereby constitute and appoint C. Thomas Thompson, Carl A. Strunk and Andrew F. Puzder, and each of them, our true and lawful attorneys and agents, to do any and all acts and things in our name and behalf in our capacities as directors and officers and to execute any and all instruments for us and in our names in the capacities indicated below, which said attorneys and agents, or either of them, may deem necessary or advisable to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules, regulations, and requirements of the Securities and Exchange Commission, in connection with this Registration Statement, including specifically, but without limitation, power and authority to sign for us or any of us in our names and in the capacities indicated below, any and all amendments (including post-effective amendments) to this Registration Statement, or any related registration statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended; and we do hereby ratify and confirm all that the said attorneys and agents, or either of them, shall 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 July 12, 2000 - ------------------------------------ William P. Foley II /s/ C. THOMAS THOMPSON Chief Executive Officer and July 12, 2000 - ------------------------------------ President C. Thomas Thompson (Principal Executive Officer)
-Signatures continued on following page- 5 6
Signature Title Date --------- ----- ---- /s/ CARL A. STRUNK Executive Vice President and Chief July 12, 2000 - ------------------------------------ Financial Officer Carl A. Strunk (Principal Financial and Principal Accounting Officer) /s/ CARL N. KARCHER Director, Chairman Emeritus July 12, 2000 - ------------------------------------ Carl N. Karcher /s/ BYRON ALLUMBAUGH Director July 12, 2000 - ------------------------------------ Byron Allumbaugh /s/ PETER CHURM Director July 12, 2000 - ------------------------------------ Peter Churm /s/ CARL L. KARCHER Director July 12, 2000 - ------------------------------------ Carl L. Karcher /s/ DANIEL D. LANE Vice Chairman of the Board July 12, 2000 - ------------------------------------ Daniel D. Lane /s/ FRANK P. WILLEY Director July 12, 2000 - ------------------------------------ Frank P. Willey
6 7 EXHIBIT INDEX The following exhibits are filed as part of this Registration Statement: Number Description - ------ ----------- 4.1 1999 Stock Incentive Plan (incorporated by reference to same numbered exhibit to the Registrant's Registration Statement on Form S-8, Reg. No. 333-83601) 4.1.1 Amendment to 1999 Stock Incentive Plan 5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional Corporation 23.1 Consent of KPMG LLP, independent auditors, with respect to the consolidated financial statements of the Registrant 23.2 Consent of Stradling Yocca Carlson & Rauth, a Professional Corporation (included in the Opinion filed as Exhibit 5.1) 24.1 Power of Attorney (included on the signature page) EX-4.1.1 2 ex4-1_1.txt EXHIBIT 4.1.1 1 EXHIBIT 4.1.1 Amendment to 1999 Stock Incentive Plan Section 4.1 of the CKE Restaurants, Inc. 1999 Stock Incentive Plan is hereby amended in its entirety to read as follows: 4.1 SHARES SUBJECT TO THE PLAN. A total of 6,650,000 shares of Common Stock, plus, on the date of each annual meeting of the stockholders an additional 350,000 shares of Common Stock, may be issued under the Plan subject to adjustment as to the number and kind of shares pursuant to Section 4.2 hereof. For purposes of this limitation, in the event that (a) all or any portion of any Option or Right to Purchase granted or offered under the Plan can no longer under any circumstances be exercised, or (b) any shares of Common Stock are reacquired by the Company pursuant to an Incentive Option Agreement, Nonqualified Option Agreement or Stock Purchase Agreement (including shares received as payment of Exercise Price), the shares of Common Stock allocable to the unexercised portion of such Option or such Right to Purchase, or the shares so reacquired, shall again be available for grant or issuance under the Plan. EX-5.1 3 ex5-1.txt EXHIBIT 5.1 1 EXHIBIT 5.1 Opinion of Stradling Yocca Carlson & Rauth, A Professional Corporation STRADLING YOCCA CARLSON & RAUTH A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 660 NEWPORT CENTER DRIVE, SUITE 1600 NEWPORT BEACH, CALIFORNIA 92660-6441 TELEPHONE (949) 725-4000 FACSIMILE (949) 725-4100 SAN FRANCISCO OFFICE 44 MONTGOMERY STREET, SUITE 2950 SAN FRANCISCO, CALIFORNIA 94104 TELEPHONE (415) 765-9180 FACSIMILE (415) 765-9187 July 12, 2000 CKE Restaurants, Inc. 401 W. Carl Karcher Way Anaheim, California 92801 RE: Registration Statement on Form S-8 Ladies and 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 2,000,000 shares of the Company's common stock, $.01 par value ("Common Stock"), issuable under the Company's 1999 Stock Incentive Plan, as amended (the "Plan"). 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 the 2,000,000 shares of Common Stock, when issued under the Plan and against full payment therefor in accordance with the terms and conditions of the Plan, 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, /s/ STRADLING YOCCA CARLSON & RAUTH EX-23.1 4 ex23-1.txt EXHIBIT 23.1 1 EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT To the Board of Directors and Stockholders of CKE Restaurants, Inc.: We consent to incorporation by reference in the registration statement on Form S-8 (relating to the 1999 Stock Incentive Plan) of CKE Restaurants, Inc. of our report dated April 4, 2000, except as to the eighth paragraph of Note 9 which is as of April 26, 2000, relating to the consolidated balance sheets of CKE Restaurants, Inc. and Subsidiaries as of January 31, 2000 and 1999, and the related consolidated statements of operations, stockholders' equity and cash flows for each of the years in the three-year period ended January 31, 2000, which report appears in the January 31, 2000 annual report on Form 10-K of CKE Restaurants, Inc. /s/ KPMG LLP Orange County, California July 12, 2000 -----END PRIVACY-ENHANCED MESSAGE-----