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As filed with the Securities and Exchange Commission on January 21, 1994
Registration No.
33-50934
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 2
On
FORM S-3
To
Registration Statement
Under
The Securities Act of 1933
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FOODMAKER, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 5812 95-2698708
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Classification Identification
incorporation or Code Number) Number)
organization
9330 Balboa Avenue
San Diego, California 92123
(619)571-2121
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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WILLIAM E. RULON, Esq.
Senior Vice President and Secretary
9330 Balboa Avenue
San Diego, CA 92123
(619)571-2121
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies of all communications should be sent to:
RHONDA S. WAGNER, Esq.
Gibson, Dunn & Crutcher
750 B Street, Suite 3300
San Diego, California 92101
(619)544-8025
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. / /
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, check the following box. /x/
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The Registrant hereby amends the Post-Effective Amendment No. 2 to the
Registration Statement on such date or dates as may be necessary to delay
its effective date until this Post-Effective Amendment No. 2 to the
Registration Statement shall become effective on such date as the
Commission, acting pursuant to Section 8(c) of the Securities Act of 1933,
may determine.
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FOODMAKER, INC.
CROSS REFERENCE SHEET
Pursuant to Item 501 of Regulation S-K
S-3 Item Number and Heading Location in Prospectus
- --------------------------- ----------------------
1. Forepart of Registration Statement and
Outside Front Cover Page of Prospectus. Outside Front Cover Page
2. Inside Front and Outside Back Cover Pages
of Prospectus . . . . . . . . . . . . . Inside Front Cover Page;
Available Information
3. Summary Information, Risk Factors and
Ratio of Earnings to Fixed Charges. . . Certain Investment
Considerations
4. Use of Proceeds. . . . . . . . . . . . . . Use of Proceeds
5. Determination of Offering Price. . . . . . Determination of Offering
Price
6. Dilution . . . . . . . . . . . . . . . . . Not Applicable
7. Selling Security Holders . . . . . . . . . Not Applicable
8. Plan of Distribution . . . . . . . . . . . Plan of Distribution
9. Description of Securities to be
Registered. . . . . . . . . . . . . . . Not Applicable
10. Interests of Named Experts and Counsel . . Legal Matters; Experts
11. Material Changes . . . . . . . . . . . . . Not Applicable
12. Incorporation of Certain Information
by Reference. . . . . . . . . . . . . . Incorporation of Documents
by Reference
13. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities . . . . . . . . . . . . . . Not Applicable
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1,584,573 Shares
FOODMAKER, INC.
COMMON STOCK
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Foodmaker, Inc., a Delaware corporation ("Foodmaker" or the "Company"),
is hereby offering (the "Offering") for sale 1,584,573 shares of its common
stock, par value $.01 per share (the "Common Stock"), reserved for issuance
upon the exercise of the Company's outstanding warrants issued (i) to the
public under the Warrant Agreement dated as of December 8, 1988 by and among
PDV Holding, Inc., a Delaware corporation ("PDV"), Foodmaker, The Fulcrum III
Limited Partnership, a Delaware limited partnership ("Fulcrum III"), and State
Street Bank and Trust Company, as warrant agent (the "Public Warrants") and
(ii) to Drexel Burnham Lambert Incorporated ("Drexel") under the Warrant
Agreement dated as of December 8, 1988 by and among PDV, Foodmaker, Fulcrum
III
and Drexel (the "Drexel Warrants" and, together with the Public Warrants, the
"Warrants").
The exercise price and the number of shares of Common Stock issuable
upon the exercise of the Public Warrants set forth on the face of such
warrants
were adjusted as a result of the Merger (the "Merger") of PDV with and into
the
Company on March 10, 1992 in accordance with the terms of the agreement
governing the Public Warrants. See "The Company--History." Of the 228,191
Public Warrants that were originally issued, 135,177 had been exercised as of
January 21, 1994. Each of the outstanding Public Warrants currently entitles
its registered holder to purchase 3 shares of Common Stock for $.926667 per
share, subject to further adjustment under certain circumstances. The Public
Warrants expire on November 30, 1998.
The exercise price and the number of shares of Common Stock issuable
upon the exercise of the Drexel Warrants set forth on the face of such
warrants
were adjusted as a result of the Merger in accordance with the terms of the
agreement governing the Drexel Warrants. See "The Company--History." Each of
the Drexel Warrants entitled its registered holder to purchase 1.5 shares of
Common Stock for $.926667 per share. All of the Drexel Warrants had been
exercised before their expiration on November 2, 1993.
The Company's Common Stock is listed on the New York Stock Exchange
under the symbol "FM."
---------------
SEE "CERTAIN INVESTMENT CONSIDERATIONS" FOR INFORMATION THAT SHOULD BE
CONSIDERED BY PROSPECTIVE INVESTORS.
---------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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Price to Underwriting discounts Proceeds to
Public and commissions the Company(1)
-------- ---------------------- -------------
Warrants - Per share $.926667 $-0- $.926667
- Total $1,468,371 $-0- $1,468,371
(1) Does not reflect the deduction of expenses of this offering
estimated to be $54,000.
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The date of this Prospectus is January 21, 1994
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No person is authorized in connection with any offering made hereby to
give any information or to make any representation not contained in this
Prospectus, and, if given or made, such information or representation must not
be relied upon as having been authorized by the Company. This Prospectus does
not constitute an offer to sell or a solicitation of an offer to buy by any
person in any jurisdiction in which it is unlawful to make such an offer or
solicitation to such person. Neither the delivery of this Prospectus nor any
sale made hereunder shall under any circumstance create any implication that
the information contained herein is correct as of any date subsequent to the
date hereof.
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AVAILABLE INFORMATION
The Company is subject to the information requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities
and Exchange Commission (the "Commission"). Reports, proxy statements,
information statements and other information filed by the Company with the
Commission can be inspected and copied at the public reference facilities
maintained by the Commission at Judiciary Plaza, Room 1024, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the Regional Offices of the Commission at
Room 1400, 75 Park Place, New York, New York 10007 and Northwestern Atrium
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies
of such material also can be obtained from the Public Reference Section of the
Commission, Washington, D.C. 20549 at prescribed rates.
The Company has filed with the Commission a Registration Statement
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the securities offered hereby. This Prospectus does not contain
all
of the information set forth in the Registration Statement, certain portions
of which are omitted as permitted by the rules and regulations of the
Commission. Such additional information may be obtained from the Commission's
principal office in Washington, D.C. Reference is made to the copy of each
document filed as an exhibit to the Registration Statement.
The Company's Common Stock is listed on the New York Stock Exchange
under the symbol "FM." Reports, proxy statements, information statements and
other information concerning the Registrant can be inspected at the offices of
the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
---------------
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated herein by reference and made
a part hereof:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended
October 3, 1993; and
(2) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on February 11, 1992.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained
herein
modifies or replaces such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
Any documents filed by the Company pursuant to Sections 13(a), 13(c),
14 ar 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the offering of the Common Stock shall be deemed to be
incorporated by reference into the Prospectus and to be part hereof.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon the written or
oral request of such person, a copy of any or all of the foregoing documents
incorporated herein by reference (other than exhibits to such documents unless
such exhibits are specifically incorporated by reference to the foregoing
documents). Written or telephone requests should be directed to: Foodmaker,
Inc., Attn: Corporate Communications, P.O. Box 783, San Diego, California
92112.
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THE COMPANY
The Company owns, operates and franchises the Jack In The Box and
Chi-Chi's restaurant concepts. Jack In The Box is a chain of fast food
restaurants located principally in the western and southwestern United States.
Chi-Chi's is a chain of full-service, casual Mexican restaurants located
primarily in the midwestern and midatlantic United States. The Company's
principal executive offices are located at 9330 Balboa Avenue, San Diego,
California 92123; telephone number (619)571-2121.
History. The Company was incorporated in Delaware in 1971. The
Company is the successor to a business that was formed more than 40 years ago
when the first Jack In The Box opened in 1950. In April 1988, the Company
acquired Chi-Chi's, Inc., a Delaware corporation ("Chi-Chi's"), which opened
its first restaurants in 1978. In December 1988, all outstanding shares of
the
Company were acquired (the "Acquisition") by a holding company organized at
the
direction of Gibbons, Green, van Amerongen ("Gibbons Green"), predecessor to
Gibbons, Goodwin, van Amerongen ("GGvA"). This holding company was merged
with
and into the Company in March 1992 as part of a recapitalization plan that
included the retiring of a portion of the Company's then existing debt with
the
net proceeds from the sale of Common Stock and new debt securities of the
Company to the public. As a result of the Merger, the exercise price and the
number of shares of Common Stock issuable upon the exercise of the Warrants
were adjusted in accordance with the terms of the agreements governing the
Warrants (the "Warrant Agreements").
CERTAIN INVESTMENT CONSIDERATIONS
Purchasers of the Common Stock offered hereby should consider the
specific factors set forth below as well as the other information set forth in
this Prospectus.
Leverage and Restrictions Imposed by Lenders
The Company is highly leveraged. At October 3, 1993, the Company had
total indebtedness of approximately $533.6 million and a ratio of consolidated
debt to stockholders' equity of approximately 3.8 to 1.
The Company's credit facilities impose significant operating and
financial restrictions on the Company. Such restrictions affect, and in many
respects significantly limit or prohibit, among other things, the ability of
the Company to incur additional indebtedness, pay dividends, issue preferred
stock of subsidiaries, repay indebtedness prior to its stated maturity, create
liens, sell assets or engage in mergers or acquisitions, make certain capital
expenditures and make investments in unrestricted subsidiaries. A failure by
the Company to comply with these restrictions could lead to a default under
the
terms of one or more of its credit facilities. In the event of such default,
the holders of such indebtedness could elect to declare all of the funds
borrowed pursuant thereto to be due and payable together with accrued and
unpaid interest. These restrictions could limit the ability of the Company to
effect future financing or otherwise may restrict corporate activities.
The substantial indebtedness of the Company may limit the Company's
ability to respond to changing business and economic conditions, insofar as
they may affect the financial condition and financing requirements of the
Company. The Company believes, however, that, based on current levels of
operations and anticipated growth, its cash flow from operations, together
with
its other available sources of liquidity, will be adequate to make required
payments of principal and interest on its debt, to permit anticipated capital
expenditures and to fund working capital requirements. If the Company is
unable to generate sufficient cash flow from operations in the future, it may
be required to refinance all or a portion of its existing debt or to obtain
additional financing. There can be no assurance that any such refinancing
would be possible or that any additional financing could be obtained on terms
that are favorable or acceptable to the Company.
3
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Control by Principal Stockholders
At December 15, 1993, approximately 45.7% and 8.7%, respectively, of
the outstanding shares of Common Stock of the Company was held by (i) two
investment partnerships of which GGvA is the general partner, The Fulcrum III
Limited Partnership and The Second Fulcrum III Limited Partnership
(collectively, "Fulcrum III"), and (ii) certain key managers of the Company
(the "Management Investors"). Consequently, Fulcrum III may have sufficient
voting power, voting in conjunction with the Management Investors, to elect
the
entire Board of Directors of the Company and, in general, to determine
(without
the consent of the Company's other stockholders) the outcome of any corporate
transaction or other matter submitted to the stockholders for approval,
including any merger, consolidation, sale of all or substantially all of the
Company's assets or "going private" transaction, and to prevent or cause a
change in control of the Company. GGvA renders consulting and financial
services to the Company for which it receives annual consulting fees.
Competition
The restaurant industry is highly competitive with respect to price,
service, location and food quality, and there are many well-established
competitors. Moreover, the restaurant business is often affected by changes
in consumer tastes, local, regional and national economic conditions,
demographic trends and traffic patterns. In addition, factors such as
increases in food, labor and benefits costs and decreases in the availability
of experienced management and hourly employees may adversely affect the
restaurant industry in general and the Company's restaurants in particular.
Any changes in these factors could adversely affect the profitability of the
Company.
USE OF PROCEEDS
The approximate net proceeds to the Company from the sale of the Common
Stock being offered hereby, assuming all of the Warrants are exercised, is
estimated to be $1,414,371. The Company has no current specific plans for the
proceeds. This Offering is being undertaken to satisfy the Company's
obligation to the holders of the Warrants to register the Common Stock
issuable
upon exercise of the Warrants; this Offering is not being made to raise funds.
The proceeds have been and the Company anticipates the remaining proceeds will
be used for general corporate purposes. However, the Company's Board of
Directors may determine that the proceeds may be used for some other purpose
if, in its sole discretion, the Board determines such use will be in the
Company's best interest.
DETERMINATION OF OFFERING PRICE
The offering price of $.926667 per share of Common Stock upon the
exercise of the Warrants is the price at which the registered holders of the
Warrants are entitled to purchase shares of the Company's Common Stock under
the terms of the Warrant Agreements.
PLAN OF DISTRIBUTION
The 1,584,573 shares of Common Stock being offered hereby, of which
1,305,531 had been issued as of January 21, 1994, will be issued by or on
behalf of the Company directly to, or pursuant to appropriate instruction
from,
the registered holders of the Warrants upon the exercise of the Warrants by
such holders.
As adjusted for the Merger, each of the 228,191 Public Warrants issued,
of which 135,177 had been exercised as of January 21, 1994, entitles its
registered holder to purchase 3 shares of Common Stock for $.926667 per share,
subject to further adjustment under certain circumstances. The Public
Warrants
may be exercised upon surrender, in person or by mail, to the Company at State
Street Bank and Trust Company c/o Boston Financial Data Services, 2 Heritage
Drive, 4th Floor, North Quincy, Massachusetts 02171, Attention: Corporate
Trust
Department, of the certificate or certificates evidencing the Public Warrants
to be exercised with the form of election to purchase on the reverse thereof
duly filled in and signed, which signature must be guaranteed by a bank or
trust company having an office or correspondent in the United States or a
broker or dealer which is a member of a registered securities exchange or the
National Association of Securities Dealers, Inc., and upon payment of the
exercise price of $.926667 per share of Common Stock to be issued upon the
exercise of the warrants(s) evidenced by such
4
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certificate(s). Payment of such exercise price must be made in cash, by
certified check or official bank check, by wire transfer, or by any
combination
of the foregoing.
The effectiveness of this Registration Statement is required to be
continuously maintained by the Company until the earlier of (i) two years
following the initial effective date of this Registration Statement (August
28,
1992) and (ii) 30 days subsequent to the date on which the Company sends
written notice to the registered holders of the Public Warrants that less than
five percent of the originally issued Public Warrants remain unexercised, and,
that as a result, the effectiveness of this Registration Statement will
terminate 30 days following such notice.
LEGAL MATTERS
Gibson, Dunn & Crutcher, San Diego, California, counsel to the Company,
has rendered an opinion to the effect that the Common Stock offered hereby is
duly and validly issued, fully paid and nonassessable.
EXPERTS
The consolidated financial statements and schedules of the Company for
and as of the fifty-two weeks ended September 29, 1991 and September 27, 1992,
and the fifty-three weeks ended October 3, 1993, incorporated by reference
into
this Prospectus and the Registration Statement of which this Prospectus is a
part, have been incorporated by reference herein and in the Registration
Statement in reliance upon the report of KPMG Peat Marwick, independent
certified public accountants, upon the authority of said firm as experts in
accounting and auditing.
5
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
SEC Registration Fee . . . . . . . . . . . . . . . . . $ 5,014
Legal Fees and Expenses* . . . . . . . . . . . . . . . 30,000
Accountants' Fees and Expenses*. . . . . . . . . . . . 15,000
Blue Sky Fees and Expenses*. . . . . . . . . . . . . . 2,000
Transfer Agent's Fees* . . . . . . . . . . . . . . . . 1,000
Miscellaneous* . . . . . . . . . . . . . . . . . . . . 986
------
$54,000
======
- --------------
*Estimated
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law makes provision
for the indemnification of officers and directors in terms sufficiently broad
to indemnify officers and directors of the Company under certain circumstances
from liabilities (including reimbursement for expenses incurred) arising under
the Securities Act of 1933. The Certificate of Incorporation and Bylaws of
the
Company provide for indemnification of officers and directors against costs
and
expenses incurred in connection with any action or suit to which such person
is a party to the full extent permitted by the Delaware General Corporation
Law.
Item 16. Exhibits
Number Description
- -------- -----------
3.1 Restated Certificate of Incorporation (1)
3.2 Restated Bylaws(1)
4.1 Warrant Agreement dated as of December 8, 1988, by and among PDV
Holding, Inc., Foodmaker, Inc., Fulcrum III Limited Partnership and
State Street Bank and Trust Company(2)
4.2 Warrant Agreement dated as of December 8, 1988, by and among PDV
Holding, Inc., Foodmaker, Inc., Fulcrum III Limited Partnership and
Drexel Burnham Lambert
Incorporated(2)
5 Opinion of Gibson, Dunn & Crutcher(3)
23.1 Consent of Gibson, Dunn & Crutcher (included in Exhibit 5)(3)
23.2 Consent of KPMG Peat Marwick
24 Power of Attorney(3)
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(1) Previously filed and incorporated herein by reference from Amendment No.
1
to Registrant's Registration Statement on Form S-1 (No. 33-44198) filed
February 3, 1992.
(2) Previously filed and incorporated herein by reference from Post Effective
Amendment No. 2 to Registrant's Registration Statement on Form S-1 (No.
33-27670) filed June 30, 1989.
(3) Previously filed as an exhibit to this Registration Statement.
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Item 17. Undertakings.
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; and
(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) do not
apply if the Registration Statement is on Form S-3 and the information
required to be included in a post-effective amendment by those
paragraphs
is contained in periodic reports filed by the Registrant pursuant to
Section 13 or 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.
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 Act of 1934 that is incorporated by reference in this 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.
lnsofar 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 offering of 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1993, the
Registrant certifies that it has reasonable grounds to believe that it meets
all
of the requirements for filing a Form S-3 and has duly caused this Post-
Effective Amendment No. 2 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of San
Diego,
State of California, on the 21st of January, 1994.
FOODMAKER, INC.
By:/S/ CHARLES W. DUDDLES
------------------------
Charles W. Duddles
Executive Vice President,
Chief Administrative Officer,
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-
Effective Amendment No. 2 to the Registration Statement has been signed below
by the following persons in the capacities and on the dates indicated.
Signature Title Date
---------------- ---------------- -------------
/S/ JACK W. GOODALL* Chairman of the Board, January 21, 1994
- ------------------------- Chief Executive Officer
Jack W. Goodall and President
(Principal Executive Officer)
/S/ CHARLES W. DUDDLES Executive Vice President, January 21, 1994
- ------------------------- Chief Administrative Officer,
Charles W. Duddles Chief Financial Officer
and Director
(Principal Financial Officer)
/S/ ROBERT L. SUTTIE* Vice President, Controller January 21, 1994
- ------------------------- and Chief Accounting Officer
Robert L. Suttie (Principal Accounting Officer)
/S/ ROBERT J. NUGENT* Executive Vice President, January 21, 1994
- ------------------------- President of Jack In The Box
Robert J. Nugent Division and Director
Director
- -------------------------
Leonard I. Green
/S/ EDWARD GIBBONS* Director January 21, 1994
- -------------------------
Edward Gibbons
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/S/ L. ROBERT PAYNE* Director January 21, 1994
- -------------------------
L. Robert Payne
/S/ CHRISTOPHER V. WALKER* Director January 21, 1994
- -------------------------
Christopher V. Walker
/S/ PAUL T. CARTER* Director January 21, 1994
- -------------------------
Paul T. Carter
/S/ MICHAEL E. ALPERT* Director January 21, 1994
- -------------------------
Michael E. Alpert
*By: /S/ CHARLES W. DUDDLES
------------------------
Charles W. Duddles
Attorney-in-Fact
II-4
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EXHIBIT 23.2
The Board of Directors
Foodmaker, Inc.
We consent to the use of our reports incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the prospectus.
KPMG PEAT MARWICK
San Diego, California
January 21, 1994
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