<PAGE>
As filed with the Securities and Exchange Commission on May 9, 1997
Registration No. 333-
_______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-8
Registration Statement Under The Securities Act of 1933
_______________
FOODMAKER, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 95-2698708
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification
organization) Number)
9330 Balboa Avenue
San Diego, California 92123
(Address of principal executive offices) (Zip code)
_______________
Foodmaker, Inc. Amended and Restated
1992 Employee Stock Incentive Plan
(Full title of the Plan)
_______________
LAWRENCE E. SCHAUF, Esq.
Executive Vice President and Secretary
9330 Balboa Avenue
San Diego, California 92123
(Name and address of agent for service)
(619)571-2435
(Telephone number, including area code, of agent for service)
_______________
Copies to:
ANDREW E. BOGEN, Esq.
Gibson, Dunn & Crutcher LLP
333 So. Grand Avenue
Los Angeles, California 90071-3197
(213) 229-7159
_______________
CALCULATION OF REGISTRATION FEE
_______________________________________________________________________________
Title of Proposed maximum Proposed maximum
securities to Amount to be offering price aggregate Amount of
be registered registered(1) per share(2) offering price(2) registration fee
_______________________________________________________________________________
Common Stock,
par value $.01 1,9000,000 $11.00 $20,900,000 $6,333.33
per share shares
_______________________________________________________________________________
(1) Pursuant to rule 416, there are also being registered hereunder such
indeterminate number of shares of Common Stock as may be issued pursuant
to the antidilution provisions of the Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933, based on the
average of the high and low prices of the Company's Common Stock on the
New York Stock Exchange on May 2, 1997.
_______________________________________________________________________________
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement relates to the Foodmaker, Inc. 1992 Employee
Stock Incentive Plan, which was amended and restated by the Registrant's
Board of Directors on October 11 and December 18, 1996 (the "Plan"), subject
to stockholder approval. Such approval was obtained at the Registrant's
Annual Meeting of Stockholders on February 14, 1997.
The Plan was amended and restated to: (i) increase the number of shares
available for Awards (as defined in the Plan) under the original plan by
1,900,000 to 3,775,000, and (ii) include technical changes, primarily to
conform the Plan to the deductibility requirements of Section 162(m) of the
Internal Revenue Code of 1986, as amended.
Registrant's Registration Statement (Registration No. 33-51490) filed
with the Securities and Exchange Commission on August 31, 1992 relates to the
initial 1,875,000 shares issuable under the plan.
Item 3. Incorporation of Documents by Reference
The following documents which have been filed by Foodmaker, Inc., a
Delaware corporation ("Foodmaker" or the "Company"), with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
September 29, 1996.
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
January 19, 1997.
(3) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (File No. 1-9390) filed
February 11, 1992.
In addition, all documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
("the Exchange Act") subsequent to the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that
all securities offered hereunder have been sold or which deregisters all such
securities then remaining unsold shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the
respective dates of filing of such documents. Any statement contained herein
or in a document all or part of which is incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed documents which also is or
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
Registration Statement.
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<PAGE>
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law makes provision for
the indemnification of officers and directors in terms sufficiently broad to
indemnify officers and directors of the Company under certain circumstances
from liabilities (including reimbursement for expenses incurred) arising
under the Securities Act of 1933. The Certificate of Incorporation and Bylaws
of the Company provide for indemnification of officers and directors against
costs and expenses incurred in connection with any action or suit to which
such person is a party to the full extent permitted by the Delaware General
Corporation Law.
Item 8. Exhibits.
Number Description
------ -----------
4.1 Foodmaker, Inc. Amended and Restated 1992 Employee Stock
Incentive Plan
4.2 Restated Certificate of Incorporation(1)
4.3 Restated Bylaws(2)
5 Opinion of Gibson, Dunn & Crutcher LLP
23.1 Consent of Gibson, Dunn & Crutcher LLP
(included in Exhibit 5)
23.2 Consent of KPMG Peat Marwick LLP
24 Power of Attorney(3)
- ------------------
(1) Previously filed and incorporated herein by reference from Registrant's
Annual Report of Form 10-K for the fiscal year ended September 29, 1996.
(2) Previously filed and incorporated herein by reference from Registrant's
Current Report on Form 8-K as of July 26, 1996.
(3) Included in this Registration Statement at page 5.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
-3-
<PAGE>
(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)(l)(i) and (a)(l)(ii) do not apply if
the Registration Statement is on Form S-3 or Form S-8, 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 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.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the Registration Statement to include any
financial statements required by Rule 3-19 of Regulation S-X at the
start of any delayed offering or throughout a continuous offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Diego, State of California, on
the 9th of May, 1997.
FOODMAKER, INC.
By: ROBERT J. NUGENT
-------------------------
Robert J. Nugent
President, Chief Executive Officer
and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Lawrence E. Schauf, Robert J. Nugent
and Charles W. Duddles, and each or any of them, his true and lawful
attorneys-in-fact and agents with full power of substitution, for him and in
his name, place and stead, in any and all capacities, to sign any or all
amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and all documents
in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them, or his substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Name and Signature Title Date
- ------------------ ----- ----
JACK W. GOODALL Chairman of the Board May 9, 1997
- -----------------------
Jack W. Goodall
ROBERT J. NUGENT President, Chief Executive Officer May 9, 1997
- ------------------------ and Director
Robert J. Nugent
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<PAGE>
CHARLES W. DUDDLES Executive Vice President, May 9, 1997
- ----------------------- Chief Administrative Officer
Charles W. Duddles Chief Financial Officer and
Director
DARWIN J. WEEKS Vice President, Controller May 9, 1997
- ----------------------- and Chief Accounting Officer
Darwin J. Weeks
MICHAEL E. ALPERT Director May 9, 1997
- ----------------------
Michael E. Alpert
JAY W. BROWN Director May 9, 1997
- ----------------------
Jay W. Brown
PAUL T. CARTER Director May 9, 1997
- ----------------------
Paul T. Carter
Director May _, 1997
- ----------------------
Edward Gibbons
L. ROBERT PAYNE Director May 9, 1997
- ----------------------
L. Robert Payne
-6-
<PAGE>
EXHIBIT INDEX
Number Description
------ -----------
4.1 Foodmaker, Inc. Amended and Restated 1992 Employee Stock
Incentive Plan
4.2 Restated Certificate of Incorporation(1)
4.3 Restated Bylaws(2)
5 Opinion of Gibson, Dunn & Crutcher LLP
23.1 Consent of Gibson, Dunn & Crutcher LLP
(included in Exhibit 5)
23.2 Consent of KPMG Peat Marwick LLP
24 Power of Attorney(3)
- ------------------
(1) Previously filed and incorporated herein by reference from Registrant's
Annual Report of Form 10-K for the fiscal year ended September 29, 1996.
(2) Previously filed and incorporated herein by reference from Registrant's
Current Report on Form 8-K as of July 26, 1996.
(3) Included in this Registration Statement at page 5.
-7-
<PAGE>
Exhibit 4.1
FOODMAKER INC.
AMENDED AND RESTATED
1992 EMPLOYEE STOCK INCENTIVE PLAN
----------------------------------
Section 1. Purpose of Plan. The purpose of this 1992 Employee Stock
Incentive Plan ("Plan") of Foodmaker, Inc. (the "Company"), is to enable the
Company and its subsidiaries to attract, retain and motivate their employees
by providing for or increasing the proprietary interests of such employees in
the Company.
Section 2. Persons Eligible under Plan. Any person, including any
director of the Company, who is an employee of the Company or any of its
subsidiaries (an "Employee") shall be eligible to be considered for the grant
of Awards (as hereinafter defined) hereunder.
Section 3. Awards.
(a) The Committee (as hereinafter defined), on behalf of the
Company, is authorized under this Plan to enter into any type of arrangement
with an Employee that is not inconsistent with the provisions of this Plan and
that by its terms, involves or might involve the issuance of (i) shares of
common stock of the Company ("Common Shares"), (ii) an option, warrant,
convertible security, stock appreciation right or similar right with an
exercise or conversion privilege at a price related to the Common Shares, or
(iii) any other security or benefit with a value derived from the value of the
Common Shares. The entering into of any such arrangement is referred to herein
as the "grant" of an "Award."
(b) Awards are not restricted to any specified form or structure
and may include, without limitation, sales or bonuses of stock, restricted
stock, stock options, reload stock options, stock purchase warrants, other
rights to acquire stock, securities convertible into or redeemable for stock,
stock appreciation rights, limited stock appreciation rights, phantom stock,
dividend equivalents, performance units or performance shares, and an Award
may consist of one such security or benefit, or two or more of them in tandem
or in the alternative.
(c) Common Shares may be issued pursuant to an Award for any
lawful consideration as determined by the Committee, including, without
limitation, services rendered by the recipient of such Award.
(d) Subject to the provisions of this Plan, the Committee, in its
sole and absolute discretion, shall determine all of the terms and conditions
of each Award granted under this Plan, which terms and conditions may include,
among other things:
(i) a provision permitting the recipient of such Award,
including any recipient who is a director or officer of the Company,
to pay the purchase price of the Common Shares or other property
issuable pursuant to such Award, or such recipient's tax withholding
obligation with respect to such issuance, in whole or in part, by any
one or more of the following:
(A) the delivery of previously owned shares of
capital stock of the Company (including "pyramiding") or
other property; or
(B) the delivery of a promissory note, the terms
and conditions of which shall be determined by the Committee;
(ii) a provision accelerating the receipt of benefits
pursuant to such Award upon the occurrence of specified events,
including, without limitation, a change of control of the Company, an
acquisition of a specified percentage of the voting power of the
Company, the dissolution or liquidation of the Company, a sale of
substantially all of the property and assets of the Company or an
event of the type described in Section 7 hereof; or
<PAGE>
(iii) any provision required in order for such Award to
qualify as an incentive stock option under Section 422 of the
Internal Revenue Code (an "Incentive Stock Option").
(iv) any provision required in order for such Award to
qualify as "Performance-Based Compensation" as described in Section
162(m) of the Internal Revenue Code (the "Code") and the regulations
thereunder. If the amount of compensation an Employee will receive
under any Award is not based solely on an increase in the value of
Common Stock after the date of grant or award, the Committee, in
order to qualify an Award as Performance-Based Compensation, can
condition the grant, award, vesting, or exercisability of such an
award on the attainment of a pre-established, objective performance
goal. For this purpose, a pre-established, objective performance
goal may include one or more of the following performance criteria;
(i) cash flow, (ii) earnings per share (including earnings before
interest, taxes, and amortization), (iii) return on equity, (iv)
total stockholder return, (v) return on capital, (vi) return on
assets or net assets, (vii) income or net income, (viii) operating
income or net operating income, (ix) operating margin, (x) return on
operating revenue, and (xi) any other similar performance criteria
contemplated by the regulations under Section 162(m) of the Code.
Section 4. Stock Subject to Plan.
(a) The maximum number of Common Shares that may be issued
pursuant to Incentive Stock Options granted under this Plan is 3,775,000,
subject to adjustment as provided in Section 7 hereof.
(b) The maximum number of Common Shares that may be issued
pursuant to all Awards (including Incentive Stock Options) granted under this
Plan, other than Common Shares that are issued pursuant to Awards and
subsequently reacquired by the Company pursuant to the terms and conditions of
such Awards, is 3,775,000, subject to adjustment as provided in Section 7
hereof (such maximum number, as so adjusted, shall be referred to herein as the
"Share Limitation").
(c) All outstanding options to purchase shares of common stock,
$.01 par value per share, of PDV Holdings, Inc. ("PDV") shall be converted into
options to purchase common Shares (with the same rights, privileges and
exercise prices as applied to such options pursuant to the terms of any Stock
Option Agreements between PDV and the holders of such options) at such time
as the proposed merger of PDV with and into the Company (the "Merger") is
consummated. All such options, to the extent that they remain unexercised at
the effective time of said Merger, shall be deemed Awards that have been
granted under this Plan and the maximum number of Common Shares that may be
issued pursuant to all Awards granted under this Plan shall include Common
Shares issued pursuant to said options, other than Common Shares that are
issued pursuant to said options and subsequently reacquired by the Company
pursuant to the terms and conditions of said options.
(d) No Award may be granted under this Plan unless, on the date of
grant, the sum of (i) the maximum number of Common Shares issuable at any
time pursuant to such award, plus (ii) the number of Common Shares that have
previously been issued pursuant to Awards granted under this Plan (including
Common Shares issued pursuant to Awards described in (c), above), other than
Common Shares that have been issued pursuant to Awards and subsequently
reacquired by the Company pursuant to the terms and conditions of such
Awards, plus (iii) the maximum number of Common Shares that may be issued at
any time thereafter pursuant to Awards granted under this Plan (including
common Shares that may be issued at any time thereafter pursuant to Awards
described in (c), above) that are outstanding on such date, does not exceed
the Share Limitation.
(e) Notwithstanding any other provision of this Plan, no Employee
shall be granted Awards with respect to more than 400,000 shares of Common
Stock in any one calendar year; provided, however, that this limitation shall
not apply if it is not required in order for the compensation attributable to
Awards hereunder to qualify as Performance-Based Compensation. The
limitation set forth in this Section 4(e) shall be subject to adjustment as
provided in Section 7, but only to the extent such adjustments would not
affect the status of compensation attributable to Awards hereunder as
Performance-Based Compensation.
<PAGE>
Section 5. Duration of Plan. No awards shall be granted under this
Plan after January 3, 2002. Although Common Shares may be issued after
January 3, 2002, pursuant to Awards granted prior to such date, no Common
Shares shall be issued under this Plan after January 3, 2012.
Section 6. Administration of Plan.
(a) This Plan shall be administered by a committee (the
"Committee") of the Board of Directors of the Company (the "Board") consisting
of two or more directors, each of whom is a "Non-Employee Director" (as such
term is defined in Rule 16b-3 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), as such rule may be amended from time to
time). In addition, if Awards are to be made to persons subject to Section
162(m) of the Code and such awards are intended to constitute Performance-Based
Compensation, then each of the Committee's members shall also be an "outside
director," as such term is defined in the regulations under Section 162(m) of
the Code.
(b) Subject to the provisions of this Plan, the Committee shall be
authorized and empowered to do all things necessary or desirable in
connection with the administration of this Plan, including, without
limitation, the following:
(i) adopt, amend and rescind rules and regulations
relating to this Plan;
(ii) determine which persons meet the requirements of
Section 2 hereof for eligibility under this Plan and to which of such
eligible persons, if any, Awards shall be granted hereunder;
(iii) grant Awards to eligible persons and determine the
terms and conditions thereof, including the number of Common Shares
issuable pursuant thereto;
(iv) determine whether, and the extent to which,
adjustments are required pursuant to Section 7 hereof; and
(v) interpret and construe this Plan and the terms and
conditions of any Award granted hereunder.
Section 7. Adjustments. If the outstanding securities of the class
then subject to this Plan are increased, decreased or exchanged for or converted
into cash, property or a different number or kind of securities, or if cash,
property or securities are distributed in respect of such outstanding
securities, in either case as a result of a reorganization, merger,
consolidation, recapitalization, restructuring, reclassification, dividend
(other than a regular, quarterly cash dividend) or other distribution, stock
split, reverse stock split or the like, or if substantially all of the
property and assets of the Company are sold, then, unless such event shall
cause a termination of the Incentive Stock Options or other Awards, or the
terms of such transaction shall provide otherwise, the Committee shall make
appropriate and proportionate adjustments in (a) the number and type of
shares or other securities or cash or other property that may be acquired
pursuant to Incentive Stock Options and other Awards theretofore granted
under this Plan and (b) the maximum number and type of shares or other
securities that may be issued pursuant to Incentive Stock Options and other
Awards thereafter granted under this Plan.
Section 8. Amendment and Termination of Plan. The Board may amend
or terminate this Plan at any time and in any manner; provided, however, that
no such amendment or termination shall deprive the recipient of any Award
theretofore granted under this Plan, without the consent of such recipient,
of any of his or her rights thereunder or with respect thereto.
Section 9. Effective Date of Plan. This Plan shall be effective as
of January 3, 1992, the date upon which it was approved by the Board; provided,
however, that no Common Shares may be issued under the Plan until it has been
approved by the affirmative vote of the holders of a majority of the
outstanding Common Shares in accordance with applicable state laws.
<PAGE>
Exhibit 5
[GIBSON, DUNN & CRUTCHER LLP LETTERHEAD]
May 8, 1997
Foodmaker, Inc.
9330 Balboa Avenue
San Diego, California 92123
Re: Registration Statement on Form S-8
----------------------------------
Gentlemen:
We have acted as counsel to Foodmaker, Inc., a Delaware corporation (the
"Company"), in connection with the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission (the "Commission") with respect to the registration under
Securities Act of 1933, as amended (the "Act"), of 1,900,000 shares of Common
Stock, $.01 par value (the "Shares"), of the Company which have been reserved
for issuance from time-to-time pursuant to awards granted and to be granted
pursuant to the Company's Amended and Restated 1992 Employee Stock Incentive
Plan (the "Plan").
We are familiar with the corporate actions taken and to be taken by the
Company in connection with the authorization, issuance and sale of the Shares
and have made such other legal and factual inquiries as we deem necessary for
the purpose of rendering this opinion. We have assumed the genuineness of
all signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to us as originals, and the conformity to original
documents of all documents submitted to us a copies and the authenticity of
the originals of such copied documents.
We have examined, among other things, the Company's Certificate of
Incorporation and Bylaws, the Plan and related agreements, and records of
corporate proceedings and other actions taken and proposed to be taken by the
Company in connection with the authorization, issuance and sale of the Shares
pursuant to awards
<PAGE>
Foodmaker, Inc.
May 8, 1997
Page 2
granted under the Plan. Based on the foregoing and in reliance thereon, it
is our opinion that the Shares, when issued and paid for pursuant to awards
granted, and, if applicable, exercised in accordance with the provisions of
the Plan and related agreements, will be duly authorized, validly isued, fully
paid and non-assessable.
The Company is incorporated under the laws of the State of Delaware. We
are not admitted to practice in Delaware. However, we are generally familiar
with the Delaware General Corporation Law and have made such review thereof
as we consider necessary for the purpose of rendering this opinion. Subject
to the foregoing, this opinion is limited to Delaware, California and federal
law.
This opinion may not be quoted in whole or in part without the prior
written consent of this Firm.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to our Firm under the heading
"Legal Matters" contained in the related Prospectus. In giving this consent,
we do not admit that we are within the category of persons whose consent is
required under Section 7 of the Act or the General Rules and Regulations of
the Commission.
Very truly yours,
GIBSON, DUNN & CRUTCHER LLP
<PAGE>
Exhibit 23.2
The Board of Directors
Foodmaker, Inc.:
We consent to the use of our report incorporated herein by reference.
KPMG PEAT MARWICK LLP
San Diego, California
May 7, 1997
