<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 21, 1998
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
SCHEDULE 13E-4
ISSUER TENDER OFFER STATEMENT
(PURSUANT TO SECTION 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934)
------------------------
COOKER RESTAURANT CORPORATION
(NAME OF ISSUER)
COOKER RESTAURANT CORPORATION
(NAME OF PERSON(S) FILING STATEMENT)
COMMON STOCK, WITHOUT PAR VALUE
(TITLE OF CLASS OF SECURITIES)
216284208
(CUSIP NUMBER OF CLASS OF SECURITIES)
G. ARTHUR SEELBINDER
CHIEF EXECUTIVE OFFICER
COOKER RESTAURANT CORPORATION
5500 VILLAGE BOULEVARD
WEST PALM BEACH, FLORIDA 33407
(561) 615-6000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES
AND COMMUNICATIONS ON BEHALF OF THE PERSON(S) FILING STATEMENT)
Copies To:
PAUL S. BIRD, ESQ.
DEBEVOISE & PLIMPTON
875 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 909-6000
------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
This Amendment amends and supplements the Issuer Tender Offer Statement on
Schedule 13e-4 filed by Cooker Restaurant Corporation, an Ohio Corporation (the
"Company") with the Securities and Exchange Commission on August 12, 1998 (the
"Schedule 13e-4"), relating to a tender offer by the Company to purchase up to
4,000,000 shares (or such lesser number of shares as are validly tendered and
not withdrawn) of its Common Stock without par value (such shares, together with
the associated preferred stock purchase rights issued pursuant to the Rights
Agreement, dated as of February 1, 1990, between the Company and National City
Bank as Rights Agent, are hereinafter referred to as the "Shares"), at prices
not greater than $12.00 nor less than $10.50 net per Share in cash upon the
terms and subject to the conditions set forth in the Offer to Purchase, dated
August 12, 1998 (the "Offer to Purchase"), and in the related Letter of
Transmittal, which, as they may be amended from time to time, together
constitute the "Offer," copies of which are attached as Exhibit (a)(1) and
(a)(2), respectively, to the Schedule 13E-4. Capitalized terms used and not
defined herein shall have the meanings assigned to such terms in the Offer to
Purchase and the Schedule 13e-4.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<C> <S>
(a)(10) Form of Letter to Participants in the Company's 401(k) Plan,
dated August 18, 1998.
(11) Form of Letter to Participants in the Company's Employee
Stock Purchase Plan, dated August 18, 1998.
(12) Form of Letter to Participants in the Company's Employee
Stock Ownership Plan, dated August 21, 1998.
(13) Form of Direction Form to be used by Participants in the
Company's Employee Stock Ownership Plan.
(14) Form of Benefit Election Form to be used by Participants in
the Company's Employee Stock Ownership Plan together with
attached Special Tax Notice.
</TABLE>
2
<PAGE> 3
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Statement is true, complete and correct.
COOKER RESTAURANT CORPORATION
By: /s/ G. ARTHUR SEELBINDER
------------------------------------
Name: G. Arthur Seelbinder
Title: Chairman and Chief Executive
Officer
Dated: August 21, 1998
3
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION PAGE
- ------- ----------- ----
<C> <S> <C>
(a)(10) Form of Letter to Participants in the Company's 401(k) Plan,
dated August 18, 1998.......................................
(11) Form of Letter to Participants in the Company's Employee
Stock Purchase Plan, dated August 18, 1998..................
(12) Form of Letter to Participants in the Company's Employee
Stock Ownership Plan, dated August 21, 1998.................
(13) Form of Direction Form to be used by Participants in the
Company's Employee Stock Ownership Plan.....................
(14) Form of Benefit Election Form to be used by Participants in
the Company's Employee Stock Ownership Plan together with
attached Special Tax Notice.................................
</TABLE>
4
<PAGE> 1
Exhibit (a)(10)
[MERRILL LYNCH LETTERHEAD]
Group Employee Services
Private Client Group
P.O. Box 30412
New Brunswick, New Jersey 08989-0412
August 18, 1998
Dear Client:
We have been advised that Cooker Restaurant Corporation, is offering to purchase
for cash, up to 4,000,000 shares of its Common Stock at a rate to be specified
by the shareholder not in excess of $12.00 nor less than $10.50 net per share.
The Company will determine a single per share purchase price that will allow it
to purchase 4,000,000 shares, taking into account the number of shares so
tendered and the prices specified by tendering shareholders. The Company will
first, purchase shares tendered by any holder of 99 or less shares of record
date August 11, 1998, and continues to hold 99 or less shares through September
10, 1998, who tenders all shares owned and who will expect the price to be
determined by the Company. The company will then purchase all other shares
tendered at or below the determined purchase price on a pro rata basis, if
necessary.
The offer is not conditioned upon any minimum number of shares being tendered.
The offer is, however, subject to certain other conditions. The shares are sold
without any brokerage fees or commissions. Please note that this offer may be
subject to proration.
Enclosed please find additional documentation which will further explain the
terms and conditions of this offer.
IF YOU WISH TO TENDER YOUR SHARES OF COOKER RESTAURANT CORPORATION COMMON STOCK
BASED ON THIS OFFER, YOU MUST CONTACT A CUSTOMER SERVICE REPRESENTATIVE AT OUR
TOLL-FREE CLIENT SERVICES NUMBER 1-800-228-4015 BY 3:30 P.M.
(EASTERN STANDARD TIME), WEDNESDAY, SEPTEMBER 9, 1998.
IN THE EVENT YOU CHOOSE TO WITHDRAW FROM THIS OFFER, AFTER HAVING TENDERED YOUR
HOLDINGS, WE MUST RECEIVE YOUR WITHDRAWAL INSTRUCTIONS BY 3:30 P.M. (EASTERN
STANDARD TIME), WEDNESDAY, SEPTEMBER 9, 1998. OUR REPRESENTATIVES ARE AVAILABLE
MONDAY THROUGH FRIDAY 8:00 A.M. TO 7:00 P.M. (EST).
The above offer, proration period, and withdrawal rights will expire at 5:00
p.m. (Eastern Standard Time) on Thursday, September 10, 1998, unless extended.
Sincerely,
Merrill Lynch Group Employee Services
<PAGE> 1
Exhibit (a)(11)
[MERRILL LYNCH LETTERHEAD]
Group Employee Services
Private Client Group
P.O. Box 30412
New Brunswick, New Jersey 08989-0412
August 18, 1998
Dear Client:
We have been advised that Cooker Restaurant Corporation, is offering to purchase
for cash, up to 4,000,000 shares of its Common Stock at a rate to be specified
by the shareholder not in excess of $12.00 nor less than $10.50 net per share.
The Company will determine a single per share purchase price that will allow it
to purchase 4,000,000 shares, taking into account the number of shares so
tendered and the prices specified by tendering shareholders. The Company will
first, purchase shares tendered by any holder of 99 or less shares of record
date August 11, 1998, and continues to hold 99 or less shares through September
10, 1998, who tenders all shares owned and who will expect the price to be
determined by the Company. The company will then purchase all other shares
tendered at or below the determined purchase price on a pro rata basis, if
necessary.
The offer is not conditioned upon any minimum number of shares being tendered.
The offer is, however, subject to certain other conditions. The shares are sold
without any brokerage fees or commissions. Please note that this offer may be
subject to proration.
Enclosed please find additional documentation which will further explain the
terms and conditions of this offer.
IF YOU WISH TO TENDER YOUR SHARES OF COOKER RESTAURANT CORPORATION COMMON STOCK
BASED ON THIS OFFER, YOU MUST CONTACT A CUSTOMER SERVICE REPRESENTATIVE AT OUR
TOLL-FREE CLIENT SERVICES NUMBER 1-800-637-3766 (U.S. RESIDENTS) OR OUR OVERSEAS
CLIENT SERVICES NUMBER 1-732-563-7305 BY 3:30 P.M. (EASTERN STANDARD TIME),
WEDNESDAY, SEPTEMBER 9, 1998.
IN THE EVENT YOU CHOOSE TO WITHDRAW FROM THIS OFFER, AFTER HAVING TENDERED YOUR
HOLDINGS, WE MUST RECEIVE YOUR WITHDRAWAL INSTRUCTIONS BY 3:30 P.M. (EASTERN
STANDARD TIME), WEDNESDAY, SEPTEMBER 9, 1998. OUR REPRESENTATIVES ARE AVAILABLE
MONDAY THROUGH FRIDAY 8:00 A.M. TO 7:00 P.M. (EST).
The above offer, proration period, and withdrawal rights will expire at 5:00
p.m. (Eastern Standard Time) on Thursday, September 10, 1998, unless extended.
Sincerely,
Nick Cucinello
Reorganization Supervisor
Merrill Lynch Group Employee Services
<PAGE> 1
Exhibit (a)(12)
MEMORANDUM
COOKER RESTAURANT CORPORATION
EMPLOYEE STOCK OWNERSHIP PLAN
Date: August 21, 1998
To: All Participants in the Cooker Restaurant Corporation Employee Stock
Ownership Plan (the "ESOP") as of June 30, 1998
Re: Tender Offer Information and Benefit Election Form
We are writing to all ESOP Participants regarding the recently announced tender
offer for shares of Cooker Restaurant Corporation (the "Company"). The tender
offer has been made by the Company to purchase shares of the Company's stock,
subject to certain conditions and limitations (the "Offer").
The Company's contributions to the ESOP are invested in shares of the Company's
stock. In general, the ESOP provides that Participants may direct the Trustee as
to how to respond to tender offers. Margaret Epperson serves as Trustee of the
ESOP. The Company has mailed copies of the COOKER RESTAURANT CORPORATION OFFER
TO PURCHASE FOR CASH UP TO 4,000,000 SHARES OF ITS COMMON STOCK DATED AUGUST 12,
1998, together with certain information concerning the Offer (the "Information
Package") to the Company's shareholders including participants in the ESOP. The
Information Package contains important information which should be read
carefully before any decision is made with respect to the Offer. You should have
received the Information Package by the time you receive this letter. If you
have not received the Information Package by the time you receive this letter,
or are not sure if you have received it, please call the toll-free number listed
below and we will send you the Information Package again.
USE THE DIRECTION FORM DESCRIBED BELOW TO DIRECT THE TRUSTEE TO TENDER YOUR
SHARES IN THE ESOP. The Information Package includes a sample Letter of
Transmittal and a sample Instruction Form. THE LETTER OF TRANSMITTAL AND
INSTRUCTION FORM DO NOT APPLY TO THE SHARES IN YOUR ACCOUNT IN THE ESOP.
Enclosed with this letter is a Direction Form (printed on pink paper) which you
may use to direct the Trustee to respond to the Offer with respect to the shares
of the Company's stock credited to your account under the ESOP. The Direction
Form should be returned in the enclosed envelope. In order for the shares of the
Company's stock credited to your account to be tendered in the Offer, your
Direction Form must be properly completed and received by the Trustee no later
than 5:00 p.m. eastern standard time on Friday, September 4, 1998 (the
"Deadline"). Verbal directions will not be accepted. ALL DIRECTIONS RECEIVED
FROM PARTICIPANTS WILL BE KEPT STRICTLY CONFIDENTIAL.
IF YOUR DIRECTION FORM IS NOT RECEIVED BY THE TRUSTEE BY THE DEADLINE, YOUR
SHARES OF THE COMPANY'S STOCK IN THE ESOP WILL NOT BE TENDERED. IF THE TRUSTEE
RECEIVES YOUR DIRECTION FORM BY THE DEADLINE BUT THERE IS NO PRICE CHECKED, OR
MORE THAN ONE PRICE CHECKED, OR IF YOUR DIRECTION FORM IS NOT SIGNED, THE
TRUSTEE WILL NOT TENDER YOUR SHARES. TO THE EXTENT THAT THE TRUSTEE DETERMINES
THAT A PARTICIPANT DID NOT RECEIVE THE INFORMATION PACKAGE, THE TRUSTEE WILL
DETERMINE WHETHER TO TENDER THE SHARES, AS WELL AS THE PRICE FOR SUCH TENDER.
THE ENCLOSED DIRECTION FORM WILL ONLY BE EFFECTIVE WITH RESPECT TO SHARES
ALLOCATED TO YOUR ACCOUNT UNDER THE ESOP AND WILL NOT BE EFFECTIVE FOR ANY OTHER
SHARES. If you currently own shares of the Company's stock outside the ESOP, you
should have received separate materials containing information on how to respond
to the Offer as to those shares. If you are currently participating in the
Cooker Restaurant 401(k) Plan (the "401(k) Plan") and have stock allocated to
your account under the 401(k) Plan, representatives of the 401(k) Plan should be
sending you another package of materials with respect to tender of your shares
under the 401(k) Plan.
The number of shares actually purchased by the Company with respect to your
account under the ESOP will depend upon the outcome of the Offer and the actual
number of shares allocated to your account at the time of the tender. IF YOU
DIRECT THAT THE TRUSTEE TENDER THE SHARES IN YOUR ACCOUNT, THE PROCEEDS FROM
SUCH TENDER WILL BE ALLOCATED TO YOUR ACCOUNT UNDER THE ESOP.
<PAGE> 2
Because the ESOP was terminated effective as of June 30, 1998, during the first
part of July, you were sent a Benefit Election Form and tax information
necessary for you to decide how to receive your benefits from the ESOP (the
"Distribution Package"). The tax information was included in the SPECIAL TAX
NOTICE RELATING TO PLAN PAYMENTS ("SPECIAL TAX NOTICE"). The effect of the Offer
on your distribution from the ESOP is described as follows:
1. IF YOU HAVE ALREADY RETURNED YOUR BENEFIT ELECTION FORM TO THE COMPANY AND:
A. you elected to receive a distribution of your shares under the ESOP
and the Trustee receives your properly completed Direction Form by the
Deadline, your account, after giving effect to the tender, will
automatically be distributed to you.
B. you elected to roll over all or a portion of your shares under the
ESOP and the Trustee receives your properly completed Direction Form
by the Deadline, your account, after giving effect to the tender, will
automatically be rolled over per your instructions.
C. you elected to receive a distribution of your shares under the ESOP
and the Trustee does not receive your Direction Form by the Deadline,
the shares of the Company's stock in your account will automatically
be distributed to you after the tender is concluded. To the extent
that the Trustee determines that a Participant did not receive the
Information Package, the Trustee will determine whether to tender the
shares, as well as the price for such tender.
D. you elected to roll over all or a portion of your shares under the
ESOP and the Trustee does not receive your Direction Form by the
Deadline, the shares of the Company's stock in your account will
automatically be rolled over per your instructions after the tender is
concluded. To the extent that the Trustee determines that a
Participant did not receive the Information Package, the Trustee will
determine whether to tender the shares, as well as the price for such
tender.
IF YOU HAVE ALREADY RETURNED YOUR DISTRIBUTION ELECTION FORM AND WANT TO CHANGE
YOUR ELECTION, PLEASE COMPLETE AND EXECUTE THE ENCLOSED BENEFIT ELECTION FORM
AND RETURN IT IN THE ENCLOSED ENVELOPE BY THE DEADLINE. YOU MAY CHANGE YOUR
ELECTION EVEN IF YOU DO NOT DIRECT THE TRUSTEE TO TENDER YOUR SHARES. TO CHANGE
YOUR BENEFIT ELECTION, THE NEW BENEFIT ELECTION FORM MUST BE RECEIVED BY THE
TRUSTEE BY THE DEADLINE.
2. IF YOU HAVE NOT YET RETURNED YOUR BENEFIT ELECTION FORM TO THE COMPANY AND:
A. you want to direct the Trustee to tender the shares in your account
under the ESOP, the Trustee must receive your properly completed
Direction Form and Benefit Election Form by the Deadline. The original
deadline of August 21, 1998 for receiving the Benefit Election Form
has been extended to the Deadline.
B. you do not want to direct the Trustee to tender the shares in your
account under the ESOP, you are advised that the original deadline of
August 21, 1998 for receiving the Benefit Election Form has been
extended to the Deadline.
PLEASE BE AWARE THAT IF YOU DIRECT THE TRUSTEE TO TENDER THE SHARES IN YOUR
ACCOUNT THE OPERATION OF THE TENDER OFFER MAY RESULT IN YOUR DISTRIBUTION OR
ROLLOVER INCLUDING BOTH CASH AND SHARES OF THE COMPANY'S STOCK.
TO THE EXTENT YOU ELECT A DISTRIBUTION AND THE DISTRIBUTION INCLUDES CASH, YOU
WILL GENERALLY BE SUBJECT TO MANDATORY 20% FEDERAL INCOME TAX WITHHOLDING ON THE
TOTAL AMOUNT OF YOUR DISTRIBUTION. PLEASE REFER TO THE ENCLOSED SPECIAL TAX
NOTICE WHICH EXPLAINS THE WITHHOLDING AND INCOME TAX CONSEQUENCES WHICH WILL
APPLY TO YOUR DISTRIBUTION.
Your distribution from the ESOP will be made in accordance with your Benefit
Election Form, provided that such form is received by the Trustee by the
Deadline. Please note that the original deadline of August 21, 1998 has
2
<PAGE> 3
been extended to the Deadline. If your Benefit Election Form is not received by
the Trustee by the Deadline, your account will automatically be distributed as
was originally communicated to you in the Distribution Package.
We realize that you may have questions regarding this information. Please call
800-549-9249 (a toll free number) with your questions between the hours of 9:00
a.m. and 5:00 p.m. eastern standard time.
Sincerely,
Cooker Restaurant Corporation
Plan Sponsor
Cooker Restaurant Corporation Employee
Stock Ownership Plan
Margaret Epperson
Trustee
Cooker Restaurant Corporation Employee
Stock Ownership Plan
3
<PAGE> 1
Exhibit (a)(13)
DIRECTION FORM
TO INSTRUCT TRUSTEE TO TENDER SHARES OF
COOKER RESTAURANT CORPORATION STOCK HELD IN THE
COOKER RESTAURANT CORPORATION
EMPLOYEE STOCK OWNERSHIP PLAN
TO: MARGARET EPPERSON
TRUSTEE
5500 VILLAGE BOULEVARD
WEST PALM BEACH, FLORIDA 33407
YOUR SIGNATURE MUST BE PROVIDED BELOW. PLEASE READ THE MATERIALS IN THE
INFORMATION PACKAGE, INCLUDING THE COOKER RESTAURANT CORPORATION OFFER TO
PURCHASE FOR CASH UP TO 4,000,000 SHARES OF ITS COMMON STOCK DATED AUGUST 12,
1998 (THE "OFFER TO PURCHASE") BEFORE COMPLETING THIS DIRECTION FORM.
IF YOU DO NOT WANT TO DIRECT THE TRUSTEE TO TENDER THE SHARES IN YOUR ACCOUNT
UNDER THE COOKER RESTAURANT CORPORATION EMPLOYEE STOCK OWNERSHIP PLAN (THE
"ESOP"), DO NOT RETURN THIS DIRECTION FORM.
Pursuant to the ESOP, I hereby direct that you take the following action with
respect to the shares of Cooker Restaurant Corporation (the "Company") stock
credited to my account under the ESOP, in connection with the Company's offer to
purchase up to 4,000,000 shares of its common stock for cash.
TENDER ALL OF SUCH SHARES AT THE FOLLOWING PRICE:
CHECK ONLY ONE BOX. IF MORE THAN ONE BOX IS CHECKED, OR IF NO BOX IS CHECKED,
THERE IS NO VALID DIRECTION FOR THE TENDER OF YOUR SHARES IN THE ESOP.
[ ] $10.500
[ ] $10.625
[ ] $10.750
[ ] $10.875
[ ] $11.000
[ ] $11.125
[ ] $11.250
[ ] $11.375
[ ] $11.500
[ ] $11.625
[ ] $11.750
[ ] $11.875
[ ] $12.000
PERSONS WHO OWNED BENEFICIALLY AS OF THE CLOSE OF BUSINESS ON AUGUST 11, 1998,
AND WHO CONTINUE TO OWN BENEFICIALLY AS OF THE EXPIRATION DATE OF THE TENDER
OFFER, AN AGGREGATE OF FEWER THAN 100 SHARES OF THE COMPANY'S COMMON STOCK AND
WHO TENDER ALL SUCH SHARES IN THE TENDER OFFER ARE ENTITLED TO RECEIVE
PREFERENTIAL TREATMENT IN THE EVENT THAT MORE SHARES ARE TENDERED THAN THE
COMPANY IS OFFERING TO PURCHASE.
THE NUMBER OF SHARES ALLOCATED TO YOUR ESOP ACCOUNT AS OF JUNE 30, 1998 WAS SET
FORTH IN THE DISTRIBUTION PACKAGE MAILED OR DELIVERED TO YOU DURING THE FIRST
PART OF JULY AS DESCRIBED IN THE ENCLOSED MEMORANDUM DATED AUGUST 20, 1998
CONCERNING THE COOKER RESTAURANT CORPORATION EMPLOYEE STOCK OWNERSHIP PLAN.
TURN PAGE OVER SIGNATURE REQUIRED ON REVERSE
<PAGE> 2
I certify that I [ ] am [ ] am not the beneficial owner (either through
the ESOP or otherwise) of fewer than 100 shares in the aggregate of the
Company's common stock.
I hereby acknowledge that I am a Participant in the ESOP and that I have
received a copy of the Offer to Purchase and the Memorandum dated August 21,
1998 concerning the Cooker Restaurant Corporation Employee Stock Ownership Plan.
<TABLE>
<S> <C>
- -------------------------------------------------------- --------------------------------------------------------
DATE PRINT OR TYPE NAME OF PARTICIPANT
- -------------------------------------------------------- --------------------------------------------------------
SOCIAL SECURITY NUMBER PARTICIPANT'S SIGNATURE
</TABLE>
If you wish to direct the Trustee to tender your shares under the ESOP, your
properly completed Direction Form must be received by the Trustee by 5:00 p.m.
eastern standard time on Friday, September 4, 1998 (the "Deadline"). Please
return the Direction Form in the enclosed envelope. If your Direction Form is
not received by the Trustee by the Deadline, your shares of the Company's stock
in the ESOP will not be tendered. However, if the Trustee determines that a
Participant did not receive the Information Package the Trustee will determine
whether to tender the shares, as well as the price for such tender.
<PAGE> 1
Exhibit (a)(14)
COOKER RESTAURANT CORPORATION
EMPLOYEE STOCK OWNERSHIP PLAN
BENEFIT ELECTION FORM
BEFORE YOU COMPLETE THIS FORM, PLEASE READ THE ENCLOSED SPECIAL TAX NOTICE
REGARDING PLAN PAYMENTS (THE "SPECIAL TAX NOTICE") AS WELL AS THE ENCLOSED
MEMORANDUM FROM THE TRUSTEE OF THE COOKER RESTAURANT CORPORATION EMPLOYEE STOCK
OWNERSHIP PLAN (THE "ESOP") REGARDING THE RECENTLY ANNOUNCED TENDER OFFER FOR
SHARES OF COOKER RESTAURANT CORPORATION'S STOCK (THE "OFFER"). THEY CONTAIN
IMPORTANT INFORMATION THAT YOU WILL NEED TO CONSIDER IN DECIDING HOW TO RECEIVE
YOUR BENEFITS.
IF THE TRUSTEE HAS ALREADY RECEIVED YOUR ORIGINAL BENEFIT ELECTION FORM, YOU DO
NOT NEED TO RETURN THIS BENEFIT ELECTION FORM UNLESS YOU WANT TO CHANGE YOUR
BENEFIT ELECTION AS DESCRIBED IN THE ENCLOSED MEMORANDUM REGARDING THE ESOP
DATED AUGUST 21, 1998. IF THIS BENEFIT ELECTION FORM IS NOT RECEIVED BY THE
TRUSTEE BY 5:00 P.M. EASTERN STANDARD TIME ON FRIDAY, SEPTEMBER 4, 1998 (THE
"DEADLINE"), AND THE TRUSTEE HAS NOT RECEIVED YOUR ORIGINAL BENEFIT ELECTION
FORM BY THE DEADLINE, YOU WILL BE TREATED AS NOT HAVING MADE A DIRECT ROLLOVER
ELECTION AND A DISTRIBUTION WILL BE MADE TO YOU AFTER THE CONCLUSION OF THE
OFFER. PLEASE USE THE ENCLOSED ENVELOPE TO RETURN YOUR BENEFIT ELECTION FORM.
PLEASE PRINT THE FOLLOWING INFORMATION:
Participant Name
- --------------------------------------------------------------------------------
Address
- --------------------------------------------------------------------------------
Social Security Number
- --------------------------------------------------------------------------------
I have received the SPECIAL TAX NOTICE and I have read and understand the
SPECIAL TAX NOTICE. I hereby elect that my vested benefits under the ESOP be
paid as follows:
MARK ONE [X] OF THE FOLLOWING THREE OPTIONS, THEN SIGN AND DATE:
OPTION #1:
[ ] DIRECT ROLLOVER TO COOKER RESTAURANT 401(K) PLAN (THE "401(K) PLAN")
Note: You must be an active Cooker Restaurant Corporation (the
"Company") Employee to elect this option. If you are an active
employee and are not currently participating in the 401(k) Plan and
choose this option, a rollover account will be established for you
under the 401(k) Plan. I hereby elect to have some or all of my vested
benefits transferred directly to the 401(k) Plan. I understand that
there will be no tax withholding at this time and that if I direct the
Trustee to tender my shares the outcome of the Offer may result in my
rollover consisting of both shares of Company stock and cash.
DIRECT ROLLOVER AMOUNT -- YOU MUST CHECK (I) OR (II):
(i) ______All amounts eligible for direct rollover
(ii) ______ Other (specify percentage of account in increments of
10%):
______%
Note: If you select (ii), the remainder of your account
will be distributed under the Direct Payment Option
referred to below. As a reminder, some amounts may not be
eligible for direct rollover as described in the SPECIAL
TAX NOTICE and will be distributed under the Direct
Payment Option referred to below.
<PAGE> 2
OPTION #2:
[ ] DIRECT ROLLOVER TO IRA OR ANOTHER EMPLOYER'S QUALIFIED RETIREMENT PLAN
I hereby elect to have some or all of my vested benefits transferred
directly to an IRA or another employer's qualified retirement plan. I
understand that there will be no tax withholding at this time and that
if I direct the Trustee to tender my shares, the outcome of the Offer
may result in my rollover consisting of both shares of Company stock
and cash.
DIRECT ROLLOVER AMOUNT -- YOU MUST CHECK (I) OR (II):
(i) ______All amounts eligible for direct rollover
(ii) ______ Other (specify percentage of account in increments of
10%):
______%
Note: If you select (ii), the remainder of your account
will be Distributed under the Direct Payment Option
referred to below. As a reminder, some amounts may not be
eligible for direct rollover as described in the SPECIAL
TAX NOTICE and will be distributed under the Direct
Payment Option referred to below.
Name of IRA or qualified retirement plan:
- ---------------------------------------------------------------------
Address of IRA or qualified retirement plan:
- -------------------------------------------------------------------
Account number:
- --------------------------------------------------------------------------------
Wire instructions (if applicable):
- -------------------------------------------------------------------------------
OPTION #3:
[ ] DIRECT DISTRIBUTION OF ACCOUNT
IF YOU SELECT OPTION #3, THE AMOUNT OF YOUR DISTRIBUTION WILL BE
SUBJECT TO 20% MANDATORY INCOME TAX WITHHOLDING -- SEE ATTACHED
SPECIAL TAX NOTICE
I hereby elect to have my vested benefits paid directly to me. I
understand that if I direct the Trustee to tender my shares the
outcome of the Offer may result in my distribution consisting of both
shares of Company stock and cash and I further understand that this
distribution will be reported as taxable income. If I do not roll over
the distribution within 60 days of its receipt, I will be subject to
income tax on the distribution and there may be a ten percent penalty
tax imposed if I am under the age of 59 1/2. I further understand that
there may be a $15.00 processing fee deducted from the amount of my
distribution.
IF THIS BENEFIT ELECTION FORM IS NOT RECEIVED BY THE DEADLINE, AND THE TRUSTEE
HAS NOT RECEIVED YOUR ORIGINAL BENEFIT ELECTION FORM BY THE DEADLINE, YOU WILL
BE TREATED AS NOT HAVING MADE A DIRECT ROLLOVER ELECTION AND A DISTRIBUTION WILL
BE MADE TO YOU AFTER THE CONCLUSION OF THE OFFER. FURTHER, YOU WILL RECEIVE IRS
FORM 1099R NO LATER THAN JANUARY 31, 1999 FOR YOUR USE IN FILING YOUR 1998
FEDERAL TAX RETURN.
--------------------------------------
SIGNATURE OF PARTICIPANT
--------------------------------------
DATE
2
<PAGE> 3
COOKER RESTAURANT CORPORATION
EMPLOYEE STOCK OWNERSHIP PLAN
SPECIAL TAX NOTICE
REGARDING PLAN PAYMENTS
This notice contains important information you will need before you decide
how to receive your benefits from the Cooker Restaurant Corporation Employee
Stock Ownership Plan (the "Plan"). Please note that the text of this notice was
prepared by the Internal Revenue Service.
SUMMARY
A payment from the Plan that is eligible for "rollover" can be taken in two
ways. You can have all or any portion of your payment either 1) PAID IN A
"DIRECT ROLLOVER" or 2) PAID TO YOU. A rollover is a payment of your Plan
benefits to your individual retirement arrangement (IRA) or to another employer
plan. This choice will affect the tax you owe.
If you choose a DIRECT ROLLOVER
- Your payment will not be taxed in the current year and no income tax will
be withheld.
- Your payment will be made directly to your IRA or, if you choose, to
another employer plan that accepts your rollover.
- Your payment will be taxed later when you take it out of the IRA or the
employer plan.
If you choose to have your Plan benefits PAID TO YOU
- You will receive only 80% of the payment, because the Plan administrator
is required to withhold 20% of the payment and send it to the IRS as
income tax withholding to be credited against your taxes.
- Your payment will be taxed in the current year unless you roll it over.
You may be able to use special tax rules that could reduce the tax you
owe. However, if you receive the payment before age 59 1/2, you also may
have to pay an additional 10% tax.
- You can roll over the payment by paying it to your IRA or to another
employer plan that accepts your rollover within 60 days of receiving the
payment. The amount rolled over will not be taxed until you take it out
of the IRA or employer plan.
- If you want to roll over 100% of the payment to an IRA or an employer
plan, you must find other money to replace the 20% that was withheld. If
you roll over only the 80% that you received, you will be taxed on the
20% that was withheld and that is not rolled over.
MORE INFORMATION
I. PAYMENTS THAT CAN AND CANNOT BE ROLLED OVER
II. DIRECT ROLLOVER
III. PAYMENT PAID TO YOU
IV. SURVIVING SPOUSES, ALTERNATE PAYEES, AND OTHER BENEFICIARIES
I. PAYMENTS THAT CAN AND CANNOT BE ROLLED OVER
Payments from the Plan may be "eligible rollover distributions." This means
that they can be rolled over to an IRA or to another employer plan that accepts
rollovers. Your Plan administrator should be able to tell you what portion of
your payment is an eligible rollover distribution. The following types of
payments cannot be rolled over:
Non-taxable Payments. In general, only the "taxable portion" of your
payment is an eligible rollover distribution. If you have made "after-tax"
employee contributions to the Plan, these contributions will be non-taxable when
they are paid to you, and they cannot be rolled over. (After-tax employee
contributions generally are contributions you made from your own pay that were
already taxed.)
Payments Spread Over Long Periods. You cannot roll over a payment if it is
part of a series of equal (or almost equal) payments that are made at least once
a year and that will last for
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- your lifetime (or your life expectancy), or
- your lifetime and your beneficiary's lifetime (or life expectancies), or
- a period of ten years or more.
Required Minimum Payments. Beginning in the year you reach age 70 1/2, a
certain portion of your payment cannot be rolled over because it is a "required
minimum payment" that must be paid to you.
II. DIRECT ROLLOVER
You can choose a direct rollover of all or any portion of your payment that
is an "eligible rollover distribution," as described above. In a direct
rollover, the eligible rollover distribution is paid directly from the Plan to
an IRA or another employer plan that accepts rollovers. If you choose a direct
rollover, you are not taxed on a payment until you later take it out of the IRA
or the employer plan.
Direct Rollover to an IRA. You can open an IRA to receive the direct
rollover. (The term "IRA," as used in this notice, includes individual
retirement accounts and individual retirement annuities.) If you choose to have
your payment made directly to an IRA, contact an IRA sponsor (usually a
financial institution) to find out how to have your payment made in a direct
rollover to an IRA at that institution. If you are unsure of how to invest your
money, you can temporarily establish an IRA to receive the payment. However, in
choosing an IRA, you may wish to consider whether the IRA you choose will allow
you to move all or a part of your payment to another IRA at a later date,
without penalties or other limitations. See IRS Publication 590, Individual
Retirement Arrangements, for more information on IRAs (including limits on how
often you can roll over between IRAs).
Direct Rollover to a Plan. If you are employed by a new employer that has
a plan, and you want a direct rollover to that plan, ask the administrator of
that plan whether it will accept your rollover. An employer plan is not legally
required to accept a rollover. If your new employer's plan does not accept a
rollover, you can choose a direct rollover to an IRA.
Direct Rollover of a Series of Payments. If you receive eligible rollover
distributions that are paid in a series for less than ten years, your choice to
make or not make a direct rollover for a payment will apply to all later
payments in the series until you change your election. You are free to change
your election for any later payment in the series.
III. PAYMENT PAID TO YOU
If you have the payment made to you, it is subject to 20% income tax
withholding. The payment is taxed in the year you receive it unless, within 60
days, you roll it over to an IRA or another plan that accepts rollovers. If you
do not roll it over, special tax rules may apply.
Income Tax Withholding:
Mandatory Withholding. If any portion of the payment to you is an eligible
rollover distribution, the Plan is required by law to withhold 20% of that
amount. This amount is sent to the IRS as income tax withholding. For example,
if your eligible rollover distribution is $10,000, only $8,000 will be paid to
you because the Plan must withhold $2,000 as income tax. However, when you
prepare your income tax return for the year, you will report the full $10,000 as
a payment from the Plan. You will report the $2,000 as tax withheld, and it will
be credited against any income tax you owe for the year.
Voluntary Withholding. If any portion of your payment is not an eligible
rollover distribution but is taxable, the mandatory withholding rules described
above do not apply. In this case, you may elect not to have withholding apply to
that portion. To elect out of withholding, ask the Plan administrator for the
election form and related information.
Sixty-Day Rollover Option. If you have an eligible rollover distribution
paid to you, you can still decide to roll over all or part of it to an IRA or
another employer plan that accepts rollovers. If you decide to roll over, you
must make the rollover within 60 days after you receive the payment. The portion
of your payment that is rolled over will not be taxed until you take it out of
the IRA or the employer plan.
You can roll over up to 100% of the eligible rollover distribution,
including an amount equal to the 20% that was withheld. If you choose to roll
over 100%, you must find other money within the 60 day period to contribute
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to the IRA or the employer plan to replace the 20% that was withheld. On the
other hand, if you roll over only the 80% that you received, you will be taxed
on the 20% that was withheld.
Example: Your eligible rollover distribution is $10,000, and you choose to
have it paid to you. You will receive $8,000, and $2,000 will be sent to
the IRS as income tax withholding. Within 60 days after receiving the
$8,000, you may roll over the entire $10,000 to an IRA or employer plan. To
do this, you roll over the $8,000 you received from the Plan, and you will
have to find $2,000 from other sources (your savings, a loan, etc.). In
this case, the entire $10,000 is not taxed until you take it out of the IRA
or employer plan. If you roll over the entire $10,000, when you file your
income tax return you may get a refund of the $2,000 withheld.
If, on the other hand, you roll over only $8,000, the $2,000 you did not
roll over is taxed in the year it was withheld. When you file your income
tax return you may get a refund of part of the $2,000 withheld. (However,
any refund is likely to be larger if you roll over the entire $10,000.)
Additional 10% Tax If You Are Under Age 59 1/2. If you receive a payment
before you reach age 59 1/2 and you do not roll it over, then, in addition to
the regular income tax, you may have to pay an extra tax equal to 10% of the
taxable portion of the payment. The additional 10% tax does not apply to your
payment if it is (1) paid to you because you separate from service with your
employer during or after the year you reach age 55, (2) paid because you retire
due to disability, (3) paid to you as equal (or almost equal) payments over your
life or life expectancy (or your and your beneficiary's lives or life
expectancies), or (4) used to pay certain medical expenses. See IRS Form 5329
for more information on the additional 10% tax.
Special Tax Treatment. If your eligible rollover distribution is not
rolled over, it will be taxed in the year you receive it. However, if it
qualifies as a "lump sum distribution," it may be eligible for special tax
treatment. A lump sum distribution is a payment, within one year, of your entire
balance under the Plan (and certain other similar plans of the employer) that is
payable to you because you have reached age 59 1/2 or have separated from
service with your employer (or, in the case of a self-employed individual,
because you have reached age 59 1/2 or have become disabled). For a payment to
qualify as a lump sum distribution, you must have been a participant in the Plan
for at least 5 years. The special tax treatment for lump sum distributions is
described below.
Five-Year Averaging. If you receive a lump sum distribution after you
are age 59 1/2, you may be able to make a one-time election to figure the
tax on the payment by using "5-year averaging." Five-year averaging often
reduces the tax you owe because it treats the payment much as if it were
paid over 5 years.
Ten-Year Averaging If You Were Born Before January 1, 1936. If you
receive a lump sum distribution and you were born before January 1, 1936,
you can make a one-time election to figure the tax on the payment by using
"10-year averaging" (using 1986 tax rates) instead of 5-year averaging
(using current tax rates). Like the 5-year averaging rules, 10-year
averaging often reduces the tax you owe.
Capital Gain Treatment If You Were Born Before January 1, 1936. In
addition, if you receive a lump sum distribution and you were born before
January 1, 1936, you may elect to have the part of your payment that is
attributable to your pre-1974 participation in the Plan (if any) taxed as
long-term capital gain at a rate of 20%.
There are other limits on the special tax treatment for lump sum
distributions. For example, you can generally elect this special tax treatment
only once in your lifetime, and the election applies to all lump sum
distributions that you receive in that same year. If you have previously rolled
over a payment from the Plan (or certain other similar plans of the employer),
you cannot use this special tax treatment for later payments from the Plan. If
you roll over your payment to an IRA, you will not be able to use this special
tax treatment for later payments from the IRA. Also, if you roll over only a
portion of your payment to an IRA, this special tax treatment is not available
for the rest of the payment. Additional restrictions are described in IRS Form
4972, which has more information on lump sum distributions and how you elect the
special tax treatment.
Employer Stock or Securities. There is a special rule for a payment from
the Plan that includes employer stock (or other employer securities). To use
this special rule, 1) the payment must qualify as a lump sum distribution, as
described above (or would qualify except that you do not yet have 5 years of
participation in the Plan), or 2) the employer stock included in the payment
must be attributable to "after-tax" employee contributions, if any. Under this
special rule, you may have the option of not paying tax on the "net unrealized
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appreciation" of the stock until you sell the stock. Net unrealized appreciation
generally is the increase in the value of the employer stock while it was held
by the Plan. For example, if employer stock was contributed to your Plan account
when the stock was worth $1,000 but the stock was worth $1,200 when you received
it, you would not have to pay tax on the $200 increase in value until you later
sold the stock.
You may instead elect not to have the special rule apply to the net
unrealized appreciation. In this case, your net unrealized appreciation will be
taxed in the year you receive the stock, unless you roll over the stock. The
stock (including any net unrealized appreciation) can be rolled over to an IRA
or another employer plan either in a direct rollover or a rollover that you make
yourself.
If you receive employer stock in a payment that qualifies as a lump sum
distribution, the special tax treatment for lump sum distributions described
above (such as 5-year averaging) also may apply. See IRS Form 4972 for
additional information on these rules.
IV. SURVIVING SPOUSES, ALTERNATE PAYEES, AND OTHER BENEFICIARIES
In general, the rules summarized above that apply to payments to employees
also apply to payments to surviving spouses of employees and to spouses or
former spouses who are "alternate payees." You are an alternate payee if your
interest in the Plan results from a "qualified domestic relations order," which
is an order issued by a court, usually in connection with a divorce or legal
separation. Some of the rules summarized above also apply to a deceased
employee's beneficiary who is not a spouse. However, there are some exceptions
for payments to surviving spouses, alternate payees, and other beneficiaries
that should be mentioned.
If you are a surviving spouse, you may choose to have an eligible rollover
distribution paid in a direct rollover to an IRA or paid to you. If you have the
payment paid to you, you can keep it or roll it over yourself to an IRA but you
cannot roll it over to an employer plan. If you are an alternate payee, you have
the same choices as the employee. Thus, you can have the payment paid as a
direct rollover or paid to you. If you have it paid to you, you can keep it or
roll it over yourself to an IRA or to another employer plan that accepts
rollovers. If you are a beneficiary other than the surviving spouse, you cannot
choose a direct rollover, and you cannot roll over the payment yourself.
If you are a surviving spouse, an alternate payee, or another beneficiary,
your payment is not subject to the additional 10% tax described in section III
above, even if you are younger than age 59 1/2.
If you are a surviving spouse, an alternate payee, or another beneficiary,
you may be able to use the special tax treatment for lump sum distributions and
the special rule for payments that include employer stock, as described in
section III above. If you receive a payment because of the employee's death, you
may be able to treat the payment as a lump sum distribution if the employee met
the appropriate age requirements, whether or not the employee had 5 years of
participation in the Plan.
HOW TO OBTAIN ADDITIONAL INFORMATION
This notice summarizes only the federal (not state or local) tax rules that
might apply to your payment. The rules described above are complex and contain
many conditions and exceptions that are not included in this notice. Therefore,
you may want to consult with a professional tax advisor before you take a
payment of your benefits from the Plan. Also, you can find more specific
information on the tax treatment of payments from qualified retirement plans in
IRS Publication 575, Pension and Annuity Income, and IRS Publication 590,
Individual Retirement Arrangements. These publications are available from your
local IRS office or by calling 1-800-TAX-FORM.
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