As filed with the Securities and Exchange Commission on August 20, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
Registration Statement Under The Securities Act of 1933
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FOODMAKER, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 95-2698708
(State or other (I.R.S. Employer
jurisdiction of Identification Number)
incorporation or
organization)
9330 Balboa Avenue
San Diego, California 92123-1516
(Address of principal executive offices) (Zip code)
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Foodmaker, Inc. Amended and Restated
Non-Employee Director Stock Option Plan
(Full title of the Plan)
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LAWRENCE E. SCHAUF, Esq.
Executive Vice President and Secretary
9330 Balboa Avenue
San Diego, California 92123-1516
(Name and address of agent for service)
(858) 571-2435
(Telephone number, including area code, of agent for service)(8)
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Copies to:
ANDREW E. BOGEN, Esq.
Gibson, Dunn & Crutcher LLP
333 So. Grand Avenue
Los Angeles, California 90071-3197
(213) 229-7000
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities offering aggregate Ammount of
to be Amount to be price offering registration
registered registered(1) per share(2) price(2) fee
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Common Stock,
par value $.01 650,000
per share shares $23.0625 $14,990,625 $4,168.00
(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 August 13, 1999.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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 27, 1998;
(2) The Company's Quarterly Report on Form 10-Q for the quarterly
periods ended January 17, 1999, April 11, 1999 and July 4, 1999;
(3) The Company's Current Reports on Form 8-K dated April 1, 1999
and July 20, 1999; and
(4) 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 and 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.
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.
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<PAGE>
Item 8. Exhibits.
Number Description
------ -----------
4.1 Foodmaker, Inc. Amended and Restated Non-
Employee Director Stock Option 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)
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(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;
(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;
-3-
<PAGE>
provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) do not
apply if 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.
(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 20th of August, 1999.
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 August 20, 1999
- --------------------
Jack W. Goodall
ROBERT J. NUGENT President, Chief Executive August 20, 1999
- -------------------- Officer and Director
Robert J. Nugent
CHARLES W. DUDDLES Executive Vice President, August 20, 1999
- -------------------- Chief Financial Officer,
Charles W. Duddles Chief Administrative
Officer and Director
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<PAGE>
DARWIN J. WEEKS Vice President, August 20, 1999
- -------------------- Controller and Chief
Darwin J. Weeks Accounting Officer
MICHAEL E. ALPERT Director August 20, 1999
- --------------------
Michael E. Alpert
- -------------------- Director August ___, 1999
Jay W. Brown
PAUL T. CARTER Director August 20, 1999
- --------------------
Paul T. Carter
MURRAY H. HUTCHINSON Director August 20, 1999
- --------------------
Murray H. Hutchison
- -------------------- Director August ___, 1999
Edward Gibbons
L. ROBERT PAYNE Director August 20, 1999
- --------------------
L. Robert Payne
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<PAGE>
EXHIBIT INDEX
Number Description
- ------ -----------
4.1 Foodmaker, Inc. Amended and Restated Non-Employee
Director Stock Option 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)
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(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-
Exhibit 4.1
FOODMAKER, INC.
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
ORIGINALLY ADOPTED FEBRUARY 17, 1995
AMENDED AND RESTATED NOVEMBER 12, 1998
1. Purpose of the Plan. Under this Non-Employee Director Stock Option
Plan (the "Director Plan") of Foodmaker, Inc., a Delaware corporation (the
"Company"), options may be granted to eligible persons, as set forth in
Section 4, to purchase shares of the Company's common stock
("Common Stock"). This Director Plan is designed to promote the long-term
growth and financial success of the Company by enabling the Company to
attract, retain and motivate such persons by providing for or increasing
their proprietary interest in the Company.
2. Effective Date. This Director Plan shall be in effect commencing on
February 17, 1995, subject to approval by the Company's stockholders.
Options may not be granted more than ten years after the date of stock
holder approval of this Director Plan or termination of this Director Plan
by the Board of Directors of the Company (the "Board"), whichever is earlier.
3. Plan Operation. This Director Plan is intended to meet the requirements
of Rule 16b-3(c)(2)(ii) adopted under the Securities Exchange Act of 1934(or
its successor) and accordingly is intended to be self-governing. To this end,
this Director Plan requires no discretionary action by any administrative body
with regard to any transaction under this Director Plan. To the extent, if
any, that any questions of interpretation arise, these shall be resolved by the
Board.
4. Eligible Persons. The persons eligible to receive a grant of
non-qualified stock options hereunder are any Director of the Board who on the
date of said grant is not an employee of the Company or a subsidiary of the
Company. For purposes of this Section 4, a person shall not be considered an
employee solely by reason of serving as Chairman of the Board.
5. Stock Subject to Director Plan. The maximum number of shares that my
be subject to options granted hereunder shall be 650,000 shares of Common
Stock, subject to adjustments under Section 6. Shares of Common Stock
subject to the unexercised portions of any options granted under this
Director Plan which expire, terminate or are canceled may again be subject
to options under this Director Plan.
6. Adjustments. If the outstanding shares of stock of the class then
subject to this Director Plan are increased or decreased, or are changed
into or exchanged for a different number or kind of shares or securities,
as a result of one or more reorganizations, recapitalizations, stock
splits, reverse stock splits, stock dividends, spin-offs and the like,
appropriate adjustments shall be made in the number and/or type of
shares or securities for which options may thereafter be granted under
this Director Plan and for which options then outstanding under this
Director Plan may thereafter be exercised. Any such adjustments in
outstanding options shall be made without changing the aggregated
exercise price applicable to the unexercised portions of such options.
7. Stock Options. Commencing February 17, 1995 and on the date of each
annual stockholder meeting thereafter at which such non-employee director has
been re-elected to the Board, such non-employee director will be automatically
granted a non-qualified stock option to purchase 10,000 shares of Common
Stock. The per share exercise price of each option will be equal to the
current market price per share of Common Stock on the date of grant.
The current market price per share of Common Stock on the date of grant
shall be not less than the higher of (a) the Quoted Price per share for
such stock on the business day immediately preceding the date of grant
or (b) the average of the Quoted Prices of the Common Stock for 30
consecutive trading days commencing 45 trading days before the date of
grant. The "Quoted Price" of the Common Stock shall be the last
reported sales price of the Common Stock as reported by NASDAQ, National
Market System, or if the Common Stock is listed on a securities exchange,
the last reported sales price of the Common Stock on such exchange which
shall be for consolidated trading if applicable to such exchange, or if
<PAGE>
neither so reported or listed, the last reported bid price of the Common
Stock. In the absence of one or more such quotations, the Board shall
determine the current market price on the basis of such information as it
in good faith considers appropriate.
Each option will have a term of ten years and shall become exercisable in
full six months after the date of grant. If on any date upon which options
are to be granted under this Director Plan the number of shares of Common
Stock remaining available under the Director Plan are less than the number
of shares required for all grants to be made on such date, then options to
purchase a proportionate amount of such available number of shares of Common
Stock shall be granted to each eligible non-employee director.
8. Documentation of Grants. Awards made under this Director Plan shall be
evidenced by written agreements or such other appropriate documentation as
the Board shall prescribe. The Board need not require the execution of any
instrument or acknowledgment of notice of an award under this Director Plan,
in which case acceptance of such award by the respective optionee will
constitute agreement to the terms of the award.
9. Nontransferability. Any option granted under this Director Plan
shall be its terms be nontransferable by the optionee otherwise than by will
or the laws of descent and distribution, and shall be exercisable, during the
optionee's lifetime, only by the optionee.
10. Amendment and Termination. The Board may alter, amend, suspend,
or terminate this Director Plan, provided that no such action shall deprive
any optionee, without his or her consent, of any option granted to the
optionee pursuant to this Director Plan or of any of his or her rights under
such option and provided further that the provisions of this Director Plan
designating persons eligible to participate in the Director Plan and
specifying the amount, exercise price and timing of grants under the Director
Plan shall not be amended more than once every six months other than to
comport with changes in the Internal Revenue Code, the Employee Retirement
Income Security Act, or the rules thereunder.
11. Termination of Directorship. Notwithstanding Section 7 above,
all options granted hereunder and held by non-employee directors as of the
date of cessation of service as a director may be exercised by the non-
employee director or his or her heirs or legal representatives until the
earlier of the tenth anniversary of the date of grant or the expiration of
ninety days after the date of cessation of such service.
12. Manner of Exercise. All or a portion of an exercisable option
shall be deemed exercised upon delivery to the Secretary of the Company at
the Company's principal office all of the following: (i) a written notice of
exercise specifying the number of shares to be purchased signed by the non-
employee director or other person then entitled to exercise the option, (ii)
full payment of the exercise price for such shares by any of the following or
combination thereof (a) cash, (b) certified or cashier's check payable to the
order of the Company, or (c) the delivery of whole shares of the Company's
Common Stock owned by the option holder and valued at the closing market
price on the business day prior to the date of exercise, (iii) such
representations and documents as the Board, in its sole discretion, deems
necessary or advisable to effect compliance with all applicable provisions
of the Securities Act of 1933, as amended, and any other federal or state
securities laws or regulations, (iv) in the event that the option shall be
exercised by any person or persons other than the non-employee director,
appropriate proof of the right of such person or persons to exercise the
option, and (v) such representations and documents as the Board, in its sole
discretion, deems necessary or advisable.
13. Compliance with Law. Common Stock shall not be issued upon
exercise of an option granted under this Director Plan unless and until
counsel for the Company shall be satisfied that any conditions necessary for
such issuance to comply with applicable federal, state or local tax,
securities or other laws or rules or applicable securities exchange
requirements have been fulfilled.
IN TESTIMONY WHEREOF, Foodmaker, Inc. has executed this Director Plan by
its officers thereunto duly authorized.
Exhibit 5
[GIBSON, DUNN & CRUTCHER LLP LETTERHEAD]
August 20, 1999
(213) 229-7000 C 30302-00001
Foodmaker, Inc.
9330 Balboa Avenue
San Diego, California 92123
Re: Foodmaker, Inc. --
Amended and Restated Non-Employee Director Stock Option Plan
Ladies and 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 650,000 shares of Common
Stock, $.01 par value (the "Shares"), of the Company, issuable pursuant to
awards granted and to be granted pursuant to the Company's Amended and Restated
Non-Employee Director Stock Option 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 as copies and the authenticity of the originals
of such copied documents.
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 issued, fully paid and non-assessable.
<PAGE>
Foodmaker, Inc.
August 20, 1999
Page 2
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 and federal law.
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.
Sincerely,
/s/ Gibson, Dunn & Crutcher LLP
GIBSON, DUNN & CRUTCHER LLP
[KPMG LETTERHEAD]
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Foodmaker, Inc.:
We consent to the use of our report incorporated herein by reference.
KPMG LLP
San Diego, California
August 20, 1999
