[DESCRIPTION]COOKER RESTAURANT CORPORATION FORM 10-K/A
<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
_____________________
FORM 10-K/A
FOR ANNUAL AND TRANSITION REPORTS PURSUANT TO
SECTIONS 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
(Mark One)
|X| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended: January 3, 1999
| | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _________________ to ____________________
Commission file number: 1-13044
COOKER RESTAURANT CORPORATION
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(Exact Name of Registrant as Specified in its Charter)
OHIO 62-1292102
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(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
5500 Village Boulevard, West Palm Beach, Florida 33407
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (561) 615-6000
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Exchange on Which Registered
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Common Shares, without par value The New York Stock Exchange
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Rights to Purchase Class A Junior Trades with the Common Shares
Participating Preferred Shares,
without par value
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Securities registered pursuant to Section 12(g) of the Act:
6-3/4% Convertible Subordinated Debentures Due 2002
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(Title of Class)
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes |X| No | |
The aggregate market value of Common Shares held by non-affiliates of the
Registrant on April 2, 1999, was $28,105,000.
The number of Common Shares outstanding on April 2, 1999, was 6,177,000.
The following documents have been incorporated by reference into this Form
10-K:
Document Part of Form 10-K
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None
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. | |
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Cooker Restaurant Corporation hereby files this Amendment No. 1 on Form
10-K/A to amend Part III, Items 10 - 13 of its Annual Report on Form 10-K
for the year ending January 3, 1999.
PART III
Item 10. Directors and Executive Officers of the Registrant.
Information regarding the Registrant's executive officers is set forth
in PART I of the Registrant's Form 10-K for the fiscal year ended
January 3, 1999 filed on April 2, 1999 at "Supplemental Item. Executive
Officers of the Registrant."
The following provides information regarding the directors of the Company
as of the date of this Prospectus.
DAVID L. HOBSON, age 62, has been a director of the Company since 1986.
Mr. Hobson became a member of the United States House of Representatives in
January 1991. Before being elected to the House of Representatives, he served as
a member of the Ohio Senate for more than five years and was its president Pro
Temp.
ROBIN V. HOLDERMAN, age 47, has been a director of the Company since 1986.
Mr. Holderman has been an Executive Vice President of Corporate Development of
Karrington Health, Inc., an assisted living facilities operating and development
company, since November of 1996. He served as President of Ruscilli Development
Co., Ltd., a real estate development company, from May 1995 to November 1996. He
served as Manager of Industrial Development of Duke Realty Investments, Inc., a
real estate development company, from April 1994 to May 1995, and prior thereto
was the founder and President of Conquest Corporation, a commercial and
industrial real estate development company located in Columbus, Ohio. From 1990
through 1992, he was the Director of Development for the Columbus office of the
Miller-Valentine Group, a Dayton, Ohio-based commercial real estate developer
and design/build contractor.
HENRY R. HILLENMEYER, age 55, has been a director of the Company since
1994. Since March 1995, Mr. Hillenmeyer has served as the Chairman and Chief
Executive Officer of Skill Search Corporation, a resume database company. He
also was Chairman and President of Southern Hospitality Corporation, a Wendy's
franchise operator based in Nashville, Tennessee, from May 1988 to October
1994.
DAVID T. KOLLAT, age 60, has been a director of the Company since 1988
and is Chairman of 22 Inc., a company specializing in research and consulting
for retailers and consumer goods manufacturers. He is a director of
Consolidated Stores, Inc., The Limited, Inc., Wolverine Worldwide, Inc.,
Pipeliner Systems, Inc., Cheryl & Co., Inc., SBC Advertising, Christy &
Associates, Select Comfort and Audio Environments, Inc. He earned his Doctor
of Business Administration degree at Indiana University, and was a Professor
of Marketing in the College of Administrative Sciences of The Ohio State
University from 1965 to 1972.
HARVEY M. PALASH, age 65, has been a director of the Company since
January 1997. He has been a director of the National Hot Rod Association
since 1979 and has served as Vice Chairman since 1986. He also served as a
director of Southern Hospitality Corporation, a Wendy's franchise operator
based in Nashville, Tennessee, from 1988 to 1994. He has been a consultant
for Hubbard Broadcasting since January 1990. He was a consultant for the
Nashville Network from 1990 to 1992. In 1985, he founded Diamond P Video,
Inc. and served as Chief Executive Officer until he sold the company in
January 1990. In 1980, he founded Diamond P Sports, Inc. and served as
Chief Executive Officer until he sold the company in January 1990. He has
a J.D. degree from the Loyola Law School. He received his license to
practice law in California in 1966.
WILLIAM LEHR JACKSON, age 57, has been a director of the Company since
September 1998. He is a co-founder and Principal In Charge of Williams
Jackson Ewing, a specialty retail development company. He has been with
Williams Jackson Ewing since 1978. In 1971, he became the Regional Leasing
Director for the Rouse Company. Mr. Jackson received his Bachelor of Arts
in Economics from the University of Virginia. He also was a Captain in the
United States Marine Corps, earning a Distinguished Flying Cross and the
Navy Commendation Medal for time served in Vietnam.
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G. ARTHUR SEELBINDER, age 55, is a founder of the Registrant. He has been
Chairman of the Board, Chief Executive Officer and a director of the
Registrant since 1986 and served as President from September 1989 until
December 1994. He was Chairman of the Board of Cooker Corporation (a
predecessor of the Registrant) from 1984 until 1988 when it was merged into
the Registrant. Mr. Seelbinder is also a director and the President of
Financial Land Corporation, a real estate holding company. Mr. Seelbinder
was a general partner in a single-asset real estate limited partnership that
owned and managed an office building in central Ohio. As part of the
foreclosure process, a state court appointed a receiver to take over the
property owned by the Partnership in December, 1994. The Partnership filed
a Chapter 11 petition in the United States Bankruptcy Court for the Southern
District of Ohio, Eastern Division, in December, 1995. The Bankruptcy Court
dismissed the case in December, 1996.
GLENN W. COCKBURN, age 43, is a founder of the Registrant. He has been a
director of the Registrant since 1989. In 1991, he was elected Senior Vice
President - Operations of the Registrant. He was Vice President - Food Services
of the Registrant from 1988 to 1991 and was Vice President of Food Operations of
Cooker Corporation from 1986 to 1988 when it was merged into the Registrant.
He is a graduate of the Culinary Institute of America in Hyde Park, New York.
PHILLIP L. PRITCHARD, age 49, has been a director of the Registrant since 1994
and has served as the President and Chief Operating Officer of the Registrant
since December 1994. Prior to joining the Registrant, Mr.Pritchard spent 22
years with GMRI. Most recently, Mr. Pritchard served as Executive Vice
President, Operations for GMRI's Red Lobster restaurants from 1986 through 1992
and Executive Vice President, Operations for GMRI's China Coast restaurants from
1992 to 1993. He has an MBA degree from Rollins College Graduate School of
Business Administration. On March 24, 1999, Mr. Pritchard resigned as a Director
and President and Chief Operating Officer of the Registrant effective April 4,
1999.
Board of Directors Meetings
The Board of Directors held nine meetings in fiscal 1999 and each of the
directors attended at least 75 percent of the aggregate number of meetings of
the Board of Directors and committees (if any) on which he served.
Committees
The Company has a standing Audit Committee and a standing Compensation
Committee. The Company does not have a committee whose functions include
nominating directors.
The Audit Committee (comprised of Robin V. Holderman, W. Lehr Jackson and
Harvey M. Palash (chair) as of the end of fiscal 1998) recommends the firm to
be employed by the Company as its independent auditors; reviews, in
consultation with the independent auditors, their report of audit, or
proposed report of audit, and the management letter, if any; consults with
the independent auditors (periodically and, as appropriate, out of the
presence of management) with regard to the adequacy of the internal
accounting controls; and approves transactions between the Company and
its officers. The Audit Committee held two meetings in fiscal 1998.
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The Compensation Committee (comprised of Henry R. Hillenmeyer, David L.
Hobson, and David T. Kollat (Chairman)) establishes the compensation of all
officers and management employees of the Company, adopts compensation plans
for them, approves employment agreements with such persons, administers and
interprets the 1988 and 1992 Employee Stock Option Plans and the 1996
Officers' Stock Option Plan, takes any action that is permitted to be taken
by a committee of the Board of Directors under the terms of such plans,
including the granting of options, and provided instructions to the trustee
of the Company's employee stock ownership plan (the "ESOP") with respect to
the voting of unallocated Common Shares thereunder. The Compensation
Committee held five meetings in fiscal 1998.
Item 11. Executive Compensation.
The following table sets forth certain information concerning the annual
and long term compensation for the last three fiscal years of the Chief
Executive Officer of the Company and the other executive officers whose total
annual salary and bonus exceeded $100,000 during the last fiscal year
(the "Named Executives").
<TABLE>
Long Term
Compensation
Awards
Securities
Annual Compensation Underlying
Name and Options All Other
Principal Position Year Salary Bonus (Shares) Compensation
<S> <C> <C> <C> <C> <C>
G. Arthur Seelbinder 1998 $228,158 49,438 75,000 $ ---
Chairman of the Board 1997 231,357 142,380 160,000 ---
Chief Executive Officer 1996 215,000 437,259 75,000 2,190 (a)
Phillip L. Pritchard 1998 185,619 30,713 33,000 ---
President-Chief 1997 191,357 81,648 42,000 ---
Operating Officer 1996 180,000 256,860 150,000 2,190 (a)
Glenn W. Cockburn 1998 140,240 15,000 21,000 ---
Senior Vice-President 1997 155,734 40,500 26,000 ---
Operations 1996 143,750 141,574 25,000 2,190 (a)
David C. Sevig 1998(b) 58,016 9,916 --- ---
Vice President-Chief 1997 131,684 33,750 23,000 ---
Financial Officer 1996 115,000 92,019 20,000 2,190 (a)
Mark W. Mikosz 1998(c) 111,810 5,000 22,000 ---
Vice President-Chief 1997 --- --- --- ---
Financial Officer 1996 --- --- --- ---
</TABLE>
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(a) The amount listed is an allocation to the account of the Named Executive
in the ESOP, which was an employee stock ownership plan under the Code. Any
amounts shown for 1996 and 1997 represent Common Shares allocated to the account
of the Named Executive as of the end of each such year. Such allocations were
made during the next year. Common Shares were valued at $11.75 at the end of
1996 and $9.75 at the end of 1997. The Company, in its sole discretion, could
make contributions to the ESOP in the form of cash or Common Shares. These
contributions and forfeiture of invested accounts were allocated to the
individual account of every employee of the Company who is age 21 and employed
on December 31 of each year in proportion to such employee's relative
compensation for the year. The accounts became 20 percent vested after three
years of employment increasing to 100 percent vested after seven years of
employment. Upon termination of employment, the vested amount of his account
was delivered to the terminated employee. The ESOP was terminated by the
Company effective June 30, 1998, with any vested shares and/or cash
distributed to the participants.
(b) Resigned effective March 28, 1998
(c) Hired June 1, 1998.
Option Grants in Last Fiscal Year
The following table sets forth certain information concerning grants of stock
options to the Named Executives during the last fiscal year.
<TABLE>
Individual Grants (a) Grant Date
Value
-------------------------------------------- ----------
Number of Percent of
Securities Total Options
Underlying granted Exercise of Grant Date
Options granted to Employees Base Price Expiration Present
Name (shares) in fiscal year ($/share) Date Value
- ---- ------ --------- ------- ---- -----
<S> <C> <C> <C> <C> <C>
G. Arthur
Seelbinder 47,587(a) 18.4% $5.50 01/26/08 $229,714(c)
27,156(b) 15.4% $5.50 04/15/08 $130,349(c)
Phillip L.
Pritchard 33,311(a) 12.9% $5.50 01/26/08 $159,893(c)
Glenn W.
Cockburn 20,621(a) 8.0% $5.50 01/26/08 $98,981(c)
Mark W. Mikosz 21,854(d) 9.2% $5.50 07/14/08 $104,899(c)
</TABLE>
(a) These options were granted on January 26, 1998. The exercise price
is the market value of the Common Shares on December 15, 1998, as all options
granted in 1996, 1997, and 1998, were repriced on December 15, 1998. Each option
vests in four equal installments on each of the first four anniversaries of the
date of original grant and lapses 90 days after death or disability or 30 days
after termination of employment. All unvested options vest upon a change in
control, see "Change in Control Arrangements."
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(b) These options were granted on April 15, 1998. The exercise price is the
market value of the Common Shares on December 15, 1998, as all options granted
in 1996, 1997, and 1998, were repriced on December 15, 1998. These options
vested one year after the date of grant and lapse 90 days after death or
disability or 30 days after termination of employment. All options vest upon a
change in control, see "Change in Control Arrangements."
(c) The per share weighted-average fair value of stock options during 1998
was $4.80 on the date of grant using the Black Scholes option-pricing model
with the following weighted average assumptions: expected dividend yield of 1.05
percent, risk-free interest rate of 4.54%, an expected life of 7 years, and
volatility of 35%.
(d) These options were granted on July 14, 1998. The exercise price is the
market value of the Common Shares on December 15, 1998, as all options granted
in 1996, 1997, and 1998, were repriced on December 15, 1998. These options
vested one year after the date of grant and lapse 90 days after death or
disability or 30 days after termination of employment. All options vest upon a
change in control, see "Change in Control Arrangements."
Aggregate Option Exercises and Fiscal Year-End Stock Option Values
The following table sets forth certain information concerning the exercise of
stock options by the Named Executives during the last fiscal year and the
number and value of unexercised stock options held by each of them at the end
thereof.
<TABLE>
Number of Value of
Securities Unexercised
Underlying In-the-money
Unexercised Options Options at
Shares Acquired Value at fiscal year end fiscal year end
Name on Exercise Realized (Exercisable/Unexercisable)
- ---- ----------- -------- -------------- --------------
<S> <C> <C> <C> <C>
G. Arthur
Seelbinder 100,000 $556,250 125,808 / 168,689 $22,877 / 84,480 (1)
Glenn W.
Cockburn 0 0 148,388 / 40,114 84,850 / 20,057 (1)
Phillip L.
Pritchard 0 0 199,927 / 96,454 24,964 / 48,227 (1)
Mark W.
Mikosz 0 0 0 / 21,854 0 / 10,927 (1)
</TABLE>
(1) The dollar value of the unexercised options has been calculated by
determining the difference between the fair market value of the securities
underlying the options and the exercise or base price of the option at
exercise or fiscal year-end, respectively.
<PAGE> 7
Stock Option Plans
The Company has stock option plans adopted in 1988 ("1988 Plan") and 1992
("1992 Plan"), as amended. Under these plans, employees and nonmanagement
directors are granted stock options as determined by a committee appointed by
the board of directors at an exercise price no less than fair market value at
the date of grant. Each option permits the holder to purchase one share of
common stock of the Company at the stated exercise price up to ten years from
the date of grant. Options vest at a rate of 25 percent per year or, if there
is substantial change in control of the Company, the options become fully
vested and exercisable. The Company has reserved 682,000 and 718,000 common
shares for issuance to employees and 73,332 and 200,000 for issuance to
nonmanagement directors under the 1988 Plan and 1992 Plan, respectively. No
further options can be granted under the 1988 Plan for employees and
nonmanagement directors and under the 1992 Plan for employees. The granting
of options under the 1992 Plan for directors expires April 13, 2002.
In April 1996, the board of directors and shareholders approved the 1996
officer option plan (the "1996 Plan") which provides for the grant of
nonqualified options to officers and employee-directors of the Company. The
number of shares is limited to fifteen percent of the issued and outstanding
shares of common stock, less shares subject to options issued to officers
and employee-directors. The recipients of the options granted under the
1996 Plan, the number of shares to be covered by each option, and the
exercise price, vesting terms, if any, duration and other terms of each
option shall be determined by the committee of the Company's board of
directors. Each option permits the holder to purchase one share of common
stock of the Company at the stated exercise price up to ten years from the
date of grant. The exercise price shall be determined by the committee at
the time of grant, but in no event shall the exercise price be less than the
fair market value of a share on the date of grant. These options become
vested over various periods not to exceed four years from the date of grant
or, if there is substantial change in control of the Company, the options
become fully vested and exercised. The maximum number of shares granted
during any fiscal year by the Company shall be 500,000 to any one officer.
The Plan expires April 22, 2006.
On December 14, 1998, the Company's Board of Directors offered to exchange
880,000 outstanding stock options issued to officers and employees in fiscal
years 1996, 1997, and 1998 for 567,837 stock options at a new option price
of $5.50 per share, the closing market price on the date of the exchange
offer. All options subject to the exchange offer were exchanged for the new
options at the new price.
Item 12. Security Ownership of Certain Beneficial Owners and Management.
The following table sets forth, as of March 31, 1999, certain information
with respect to the beneficial ownership of Common Shares by (i) each person
known to the Company to be the beneficial owner of more than five percent of
the outstanding Common Shares, (ii) each director or nominee for director of
the Company, (iii) each of the Named Executives and (iv) the Company's
directors and executive officers as a group.
<TABLE>
Number of Shares
Shareholder Beneficially Owned (a) Percent of Class
<S> <C> <C>
G. Arthur Seelbinder (b) 494,286 (c) 7.8%
Glenn W. Cockburn 315,395 (c) 5.0%
Henry R. Hillenmeyer 15,666 (c)(d) (i)
David L. Hobson 58,874 (e) (i)
Robin V. Holderman 39,918 (c) (i)
David T. Kollat 135,344 (c) 2.2%
W. Lehr Jackson - 0.0%
Harvey M. Palash 100,650 (c) 1.3%
Phillip L. Pritchard 432,950 (c) 6.8%
Mark W. Mikosz - 0.0%
Margaret A. Epperson 6,726 (c) (i)
All directors and
executive officers as
a group (11 persons) 1,599,809 (c) 23.0%
Dimensional Fund Advisors
Inc. 686,162 (e) 11.1%
Heartland Advisors, 569,900 (h) 9.2%
The TCW Group, Inc. 65,503 (g) 1.0%
Wellington Management
Company, LLP 757,000 (f) 12.3%
</TABLE>
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(a) Unless otherwise indicated, the beneficial owner has sole voting and
investment power over these shares subject to the spousal rights, if any, of
the spouses of those beneficial owners who have spouses.
(b) G. Arthur Seelbinder's address is c/o the Company, 5500 Village
Boulevard, West Palm Beach, Florida 33407.
(c) Includes Common Shares subject to stock options outstanding and
exercisable within 60 days of February 28, 1998; for Mr. Seelbinder,
164,765 Common Shares; for Mr. Cockburn, 161,245 Common Shares; for Mr.
Hillenmeyer, 12,600 Common Shares; for Mr. Hobson, 19,442 Common Shares;
for Mr. Holderman, 37,836 Common Shares; for Mr. Kollat, 61,712 Common
Shares; for Mr. Pritchard, 236,522 Common Shares; for Mrs. Epperson,
4,106 Common Shares; and for all directors and executive officers as a
group, 698,228 Common Shares.
(d) Includes 1,314 Common Shares owned of record by his spouse and
children, as to which beneficial ownership is disclaimed.
(e) Dimensional Fund Advisors Inc.'s address is 1299 Ocean Avenue, 11th
Floor, Santa Monica, California 90401. Dimensional Fund Advisors Inc.
("Dimensional"), a registered investment advisor, is deemed to have sole
voting power with regard to 686,162 Common Shares and sole investment power
with regard to 686,162 Common Shares as of February 12, 1999, all of which
shares are held in portfolios of DFA Investment Dimensions Group Inc., a
registered open-end investment company, or in a series of the DFA Investment
Trust Company, a Delaware business trust, or the DFA Group Trust and DFA
Participation Group Trust, investment vehicles for qualified employee benefit
plans, all of which Dimensional Fund Advisors Inc. serves as investment
manager. Dimensional disclaims beneficial ownership of all such shares. A
Schedule 13G filed by Dimensional with the Securities and Exchange Commission
for calendar year 1998 is the source of information concerning Dimensional
reported in this Proxy Statement.
(f) Wellington Management Company, LLP's ("WMC") address is 75 State
Street, Boston, Massachusetts 02109. WMC has shared voting power with regard
to 457,000 Common Shares and shared investment power with regard to 757,000
Common Shares. A Schedule 13G filed by WMC with the Securities and Exchange
Commission dated December 31, 1998 is the source of information concerning
WMC reported in this Proxy Statement.
<PAGE> 9
(g) The TCW Group, Inc.'s ("TCW") address is 865 South Figueroa Street,
Los Angeles, California 90017. TCW is deemed to beneficially own 64,503 Common
Shares as of February 12, 1999. Mr. Robert Day may be deemed to control TCW.
Mr. Day's address is 200 Park Avenue, Suite 2200, New York, New York 10166.
Neither TCW nor Mr. Day directly own Common Shares. The Common Shares which
they are deemed to beneficially owned are directly owned by subsidiaries of
TCW. Both TCW and Mr. Day disclaim beneficial ownership of all such shares. A
Schedule 13G filed by TCW with the Securities and Exchange Commission dated
February 12, 1999 is the source of information concerning TCW reported in
this Proxy Statement.
(h) Heartland Advisors, Inc.'s ("Heartland") address is 790 North
Milwaukee Street, Milwaukee, Wisconsin 53202. Heartland has sole voting power
with regard to 51,900 Common Shares and sole investment power with regard to
569,900 Common Shares. A Schedule 13G filed by Heartland with the Securities
and Exchange Commission dated January 13, 1999 is the source of information
concerning Heartland reported in this Proxy Statement.
(i) Less than one percent.
Section 16(A) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934 requires Cooker
Restaurant Corporation's executive officers, directors, and persons who own
more than 10% of the Company's stock to file reports of ownership and
changes in ownership with the Securities and Exchange Commission. These
reports are also filed with the New York Stock Exchange.
SEC Regulations require Cooker Restaurant Corporation to identify
anyone who filed a required report late during the most recent fiscal year.
Based on review of reports furnished to the Company and written
representations, the Company believes during fiscal year ended January
3, 1999, all section 16(a) filing requirements were met except:
Peggy Epperson, an officer of the Company, failed to file a Form 4
on time as to the exercise of 4,854 options of the Company's common
stock in April 1998. The exercise was reported in May 1998.
Item 13. Certain Relationships and Related Transactions.
Certain information required by this item is set forth at Part III, Item
11 herein and Part II, Item 7, of the Registrant's previously filed Form 10-K
for the fiscal year ended January 3, 1999.
In 1994, the Board of Directors approved a guaranty by the Company of a
loan of $5,000,000 to G. Arthur Seelbinder (the "Loan"), the Chairman of the
Board. In January 1997, the Board approved a refinancing of the loan with The
Chase Manhattan Bank of New York (the "Bank"). As refinanced and extended,
the Loan from the Bank bears interest at the Bank's prime rate or LIBOR plus
2%, and was secured by 570,000 Common Shares and is guaranteed by the
Company in the principal amount up to $6,250,000, including capitalized
interest. Pursuant to the loan agreement between Mr. Seelbinder and the
Bank, any reduction of the principal amount outstanding under the Loan shall
not entitle Mr. Seelbinder to the advancement of additional funds under the
Loan. The guaranty provides that the Bank will sell the pledged shares and
apply the proceeds thereof to the Loan prior to calling on the Company for
its guaranty. The term of the Loan has been extended until January 31, 2000.
Pursuant to the Offer, Mr. Seelbinder tendered 737,562 shares,
approximately 99% of the outstanding Common shares that he owned, including
all 570,000 shares which secured the Loan. Approximately 414,555 shares were
taken up in the Offer for a total price of approximately $4,352,827. Pursuant
to Mr. Seelbinder's letter to the Company dated September 17, 1998, the net
after tax proceeds of the sale of 167,652 shares or approximately $1,408,276
were applied by Mr. Seelbinder to the repayment of certain personal
indebtedness and tax liabilities, the remaining net after tax proceeds
(approximately $2,073,985) were applied to the Loan and the remaining
323,007 Common shares were returned to the Bank.
As of February 10, 1999, the amount of the Loan outstanding, including
capitalized and accrued interest, was approximately $3,457,569 and the
undiscounted fair market value of the pledged shares was approximately
$1,898,676, based upon a market price of $6.1875 per common share. The
guaranty secures the loan until it is paid or refinanced without a guaranty.
The Company would fund any obligation it incurs under the terms of its
guaranty from additional borrowing under its Revolver. Mr. Seelbinder agreed
to pay to the Company a guaranty fee each year that the guaranty remains
outstanding beginning on March 9, 1994, the date the Company first issued
its guaranty of the Loan. The amount of the guaranty fee is 1/4 percent of
the outstanding principal amount of the guaranteed loan on the date that the
guaranty fee becomes due. Mr. Seelbinder has agreed to use at least on-half
of any incentive bonus paid to him by the Company to pay principal and
interest on the Loan beginning with any incentive bonus paid for fiscal
year 1998.
Because the value of the shares pledged to secure the Loan at February
10, 1999, and on the date of this filing was less than the amount required
under the terms of the Loan, the Bank required the Company to make a cash
deposit in such amount to satisfy the collateral shortfall as a result of
the decreased price of the Company's common stock. The Bank, the Company
and Mr. Seelbinder reached a preliminary agreement concerning such
deposit under which Mr. Seelbinder paid $150,000 to the Bank, the Bank
extended their maturity of the Loan to January 31, 2000, the Company made
a cash deposit of approximately $1,600,000 in the Bank which will be
revalued monthly, and Mr. Seelbinder will reimburse the Company for
the amount by which the interest on the deposit is less than the interest
the Company pays for funds under its Term Loan and Revolver. This use of
the Company's funds will not materially affect its working capital or its
ability to implement its capital expenditure plan or make improvements and
betterments on its property. Mr. Seelbinder has also informed the Company
that he intends to discuss with the Bank or other financing sources the
refinancing of the balance of the Loan. There can be no assurance that
such refinancing will occur or that, if the Loan is refinanced, the
guaranty will not remain outstanding or that the deposit will be returned
to the Company.
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K.
(a) Documents filed as part of this Form 10-K/A.
(1) Consolidated Financial Statements:
Independent Auditors' Report (previously filed)
Consolidated Balance Sheet as of January 3, 1999 and December 28, 1997
(previously filed)
Consolidated Statement of Income for the Fiscal Years Ended January
3, 1999, December 28, 1997 and December 29, 1996 (previously filed)
Consolidated Statement of Changes in Shareholders' Equity for the Fiscal
Years Ended January 3, 1999, December 28, 1997 and December 29, 1996
(previously filed)
Consolidated Statement of Cash Flows for the Fiscal Years Ended January
3, 1999, December 28, 1997 and December 29, 1996 (previously filed)
Notes to Consolidated Financial Statements for the Fiscal Years Ended
January 3, 1999, December 28, 1997 and December 29, 1996
(previously filed)
<PAGE> 10
(3) The following exhibits are filed as part of this Form 10-K.
(3) Articles of Incorporation and By-Laws.
3.1. Amended and Restated Articles of Incorporation of the Registrant
(incorporated by reference to Exhibit 28.2 of Registrant's quarterly report on
Form 10-Q for the quarterly period ended March 29, 1992; Commission File
Number 0-16806).
3.2. Amended and Restated Code of Regulations of the Registrant (incorporated
by reference to Exhibit 4.5 of the Registrant's quarterly report on Form 10-Q
for the fiscal quarter ended April1, 1990; Commission File No. 0-16806).
(4) Instruments Defining the Rights of Security Holders.
4.1. See Articles FOURTH, FIFTH and SIXTH of the Amended and Restated
Articles of Incorporation of the Registrant (see 3.1 above).
4.2. See Articles One, Four, Seven and Eight of the Amended and Restated Code
of Regulations of the Registrant (see 3.2 above).
4.3. Rights Agreement dated as of February1, 1990 between the Registrant and
National City Bank (incorporated by reference to Exhibit1 of the Registrant's
Form 8-A filed with the Commission on February9, 1990; Commission File No.
0-16806).
4.4. Amendment to Rights Agreement dated as of November 1, 1992 between the
Registrant and National City Bank (incorporated by reference to Exhibit 4.4 of
Registrant's annual report on Form 10-K for the fiscal year ended January 3,
1993 (the "1992 Form 10-K"); Commission File No. 0-16806).-
4.5. Letter dated October 29, 1992 from the Registrant to First Union
National Bank of North Carolina (incorporated by reference to Exhibit4.5 to the
1992 Form 10-K; Commission File No. 0-16806).
4.6. Letter dated October 29, 1992 from National City Bank to the Registrant
(incorporated by reference to Exhibit4.6 to the 1992 Form 10-K; Commission
File No. 0-16806).
4.7. See Section 7.4 of the Amended and Restated Loan Agreement dated
December22, 1995 between Registrant and First Union National Bank of Tennessee.
(see 10.4 below).
4.8. Indenture dated as of October 28, 1992 between Registrant and First
Union National Bank of North Carolina, as Trustee (incorporated by reference
to Exhibit 2.5 of Registrant's Form8-A filed with the Commission on November
10, 1992; Commission File Number 0-16806).
<PAGE> 11
(10) Material Contracts (*Management contract or compensatory plan
or arrangement.)
10.1.-10.3. Reserved.
10.4. Amended and Restated Loan Agreement dated December22, 1995 between
Registrant and First Union National Bank of Tennessee (incorporated by
reference to Exhibit 10.4 of the Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1995 (the "1995 Form 10-K"), Commission
File No. 0-16806).
10.5. Underwriting Agreement dated May 7, 1996 with Montgomery Securities
and Equitable Securities Corporation (incorporated by reference to Exhibit
10.1 to the Registrant's quarterly report on Form 10-Q for the quarter ended
June 30, 1996 (the "June 1996 Form 10-Q"), Commission File No. 0-16806).
10.6. Form of Contingent Employment Agreement and schedule of executed
Agreements (incorporated by reference to Exhibit 10.5 of the 1995 Form
10-K; Commission File No. 0-16806).*
10.7. The Registrant's 1988 Employee Stock Option Plan and 1992 Employee
Stock Option Plan, Amended and Restated April 22, 1996, (incorporated by
reference to Exhibit 10.2 to the June 1996 Form 10-Q, Commission File No.
0-16806).*
<PAGE> 17
10.8. The Registrant's 1988 Directors Stock Option Plan, as amended and
restated. (incorporated by reference to Exhibit 10.8 to the Registrant's
annual report on Form 10-K for the fiscal year ended December 29, 1996
(the "1996 Form 10-K"); Commission File No. 0-13044).*
10.9. The Registrant's 1992 Directors Stock Option Plan, as amended and
restated. (incorporated by reference to Exhibit 10.9 to the 1996 Form
10-K; Commission File No. 0-13044).*
10.10. The Registrant's 1996 Officers' Stock Option Plan (incorporated by
reference to Exhibit 10.10 of the 1995 Form 10-K; Commission File No.
0-16806). *
10.11. Reaffirmation and Amendment to Guaranty and Suretyship Agreement
between Registrant and NationsBank of Tennessee, N.A. dated July 24, 1995
(incorporated by reference to Exhibit10.5 of the Registrant's Quarterly
Report on Form 10-Q for the quarterly period ended July 2, 1995; Commission
File No.1-13044).
10.12. Amended and Restated Guaranty between Registrant and Chase Manhattan
Bank dated January 31, 1997 (incorporated by reference to Exhibit 10.12 to the
1996 Form 10-K; Commission File No. 0-13044).
10.13. Letter dated February 3, 1997 from G. Arthur Seelbinder to the
Registrant (incorporated by reference to Exhibit 10.13 to the 1996 Form 10-K;
Commission File No. 0-13044).
10.14. Letter dated January 30, 1998 from G. Arthur Seelbinder to the
Registrant (incorporated by reference to Exhibit 10.14 to the 1997 Form 10-K;
Commission File No. 0-13044).
10.15 Second Amendment to Amended and Restated Loan Agreement dated as of
January 1,1998 between the Registrant and First Union National Bank, a national
banking association, as successor in interest to First Union National Bank of
Tennessee (incorporated by reference to Exhibit 10.15 to the 1997 Form 10-K;
Commission File No. 0-13044).
10.16 Fourth Amendment to Revolving/Term Loan Note dated as of January 1,
1998 betweenthe Registrant and First Union National Bank, a national banking
association, assuccessor in interest to First Union National Bank of Tennessee
(incorporated by reference to Exhibit 10.16 to the 1997 Form 10-K; Commission
File No. 0-13044).
10.17 Reaffirmation of Amended and Restated Guaranty made by the Registrant
on April 20, 1998 to the Chase Manhattan Bank (incorporated by reference to
Exhibit 10.17 to the 1997 Form 10-K; Commission File No. 0-13044).
<PAGE> 12
10.18 Letter agreement dated March 26, 1998 between The Chase Manhattan Bank
and G.Arthur Seelbinder (incorporated by reference to Exhibit 10.18 to the
1997 Form 10-K; Commission File No. 0-13044).
10.19 Amendment to Grid Time Promissory Note dated March 26, 1998 between
The ChaseManhattan Bank and G. Arthur Seelbinder (incorporated by reference
to Exhibit 10.19 to the 1997 Form 10-K; Commission File No. 0-13044).
10.20 Loan Agreement dated September 24, 1998, between the Registrant and
First Union National Bank and NationsBank of Tennessee, N.A., both national
banking associations (incorporated by reference to Exhibit 10.20 of the
Registrant's Quarterly Report on Form10-Q for the quarterly period ended
September 27, 1998; Commission File No.1-13044).
10.21 Loan Agreement dated September 24, 1998, between the Registrant and
The CIT Group/Equipment Financing, Inc. (incorporated by reference to
Exhibit 10.21 of the Registrant's Quarterly Report on Form10-Q for the
quarterly period ended September 27, 1998; Commission File No.1-13044).
10.22 Letter dated September 17, 1998 from G. Arthur Seelbinder to the
Registrant (incorporated by reference to Exhibit (c)(10) to Amendment
No. 3 to the Registrant's Schedule 13E-4 filed on September 18, 1998;
Commission File No. 0-16806).
(16) Letter regarding Change in Certifying Accountant.
16.1. Letter dated August 14, 1996 from Price Waterhouse LLP to the
Securities and Exchange Commission (incorporated by reference to Exhibit
16.1 to the Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 1996; Commission File No. 1- 13044).
(21) Subsidiaries of Registrant.
21.1 Subsidiaries of Registrant. (previously filed)
(23) Consents of Experts and Counsel.
23.1 Consent of KPMG LLP.
<PAGE> 18
(24) Powers of Attorney.
24.1. Powers of Attorney. (previously filed)
24.2. Certified resolution of the Registrant's Board of Directors
authorizing officers and directors signing on behalf of the Registrant to
sign pursuant to a power of attorney. (previously filed)
(27) Financial Data Schedule.-
27.1. Financial Data Schedule (submitted electronically for SEC
information only). (previously filed)
(b) Reports on Form 8-K.
No current report on Form 8-K was filed by the Registrant during the fourth
quarter of fiscal 1998.
<PAGE> 13
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned, thereunto duly authorized.
Dated: May 3, 1999
COOKER RESTAURANT CORPORATION (the "Registrant")
By: /s/ G. Arthur Seelbinder
------------------------
G. Arthur Seelbinder Chairman of the Board, Chief Executive
Officer and Director (principal executive officer)
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities indicated on April 2, 1999.
Signature Title
/s/ G. Arthur Seelbinder Chairman of the Board, Chief Executive
- ------------------------ Officer and Director (principal executive
G. Arthur Seelbinder officer)
/s/ Phillip L. Pritchard * President, Chief Operating Officer
- ------------------------ and Director
Phillip L. Pritchard
/s/ Glenn W. Cockburn * Senior Vice President - Operations and
- ------------------------ Director
Glenn W. Cockburn
/s/ Mark W. Mikosz * Vice President - Chief Financial Officer
- ------------------------ (principal financial and accounting officer)
Mark W. Mikosz
/s/ Robin V. Holderman * Director
- ------------------------
Robin V. Holderman
/s/ David T. Kollat * Director
- ------------------------
David T. Kollat
/s/ David L. Hobson * Director
- ------------------------
David L. Hobson
/s/ Henry R. Hillenmeyer * Director
- ------------------------
Henry R. Hillenmeyer
/s/ Lehr Jackson * Director
- ------------------------
Lehr Jackson
/s/ Harvey Palash * Director
- ------------------------
Harvey Palash
* By: /s/ G. Arthur Seelbinder
G. Arthur Seelbinder Attorney-in-Fact
<PAGE> 14
_______________________________________________________________________________
_______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
COOKER RESTAURANT CORPORATION
_______________________
FORM 10-K ANNUAL REPORT
FOR THE FISCAL YEAR ENDED:
JANUARY 3, 1999
_______________________
EXHIBITS
_______________________
_______________________________________________________________________________
_______________________________________________________________________________
<PAGE> 15
EXHIBIT INDEX
<TABLE>
<CAPTION>
Number of Pages
Exhibit in Original Incorporated
Number Description Document (a) by reference
- ------ ----------- ------------------ ------------
<S> <C> <C> <C>
3.1. Amended and Restated Articles of
Incorporation of the Registrant. 13 *
3.2. Amended and Restated Code of Regulations
of the Registrant. 12 *
4.1. See Articles FOURTH, FIFTH and SIXTH of
the Amended and Restated Articles of
Incorporation of the Registrant (see 3.1
above). 13 *
4.2. See Articles One, Four, Seven and Eight
of the Amended and Restated Code of
Regulations of the Registrant (see 3.2
above). 12 *
4.3. Rights Agreement dated as of February 1,
1990 between the Registrant and National
City Bank. 65 *
4.4. Amendment to Rights Agreement dated as of
November 1, 1992 between the Registrant and
National City Bank. 1 *
4.5. Letter dated October 29, 1992 from the
Registrant to First Union National Bank of
North Carolina. 1 *
4.6. Letter dated October 29, 1992 from National
City Bank to the Registrant. 1 *
4.7. See Section 7.4 of the Amended and Restated
Loan Agreement dated December 22, 1995
between Registrant and First Union National
Bank of Tennessee (see 10.4 below). 31 *
4.8. Indenture dated as of October 28, 1992
between Registrant and First Union National
Bank of North Carolina, as Trustee. 61 *
<PAGE> 16
10.1.-10.3. Reserved.
10.4. Amended and Restated Loan Agreement dated
December 22, 1995 between Registrant and
First Union National Bank of Tennessee. 31 *
10.5. Underwriting Agreement dated May 7, 1996
with Montgomery Securities and Equitable
Securities Corporation. 28 *
10.6. Form of Contingent Employment Agreement and
schedule of executed Agreements. 10 *
10.7. The Registrant's 1988 Employee Stock Option
Plan and 1992 Employee Stock Option Plan,
Amended and Restated April 22, 1996. 11 *
10.8. The Registrant's 1988 Directors Stock Option
Plan, as amended and restated. 6 *
10.9. The Registrant's 1992 Directors Stock Option
Plan, as amended and restated. 6 *
10.10. The Registrant's 1996 Officers' Stock
Option Plan. 10 *
10.11. Reaffirmation and Amendment to Guaranty and
Suretyship Agreement between Registrant and
NationsBank of Tennessee, N.A. dated
July 24, 1995. 2 *
10.12. Amended and Restated Guaranty between
Registrant and Chase Manhattan Bank dated
January 31, 1997. 7 *
10.13. Letter dated February 3, 1997 from G. Arthur
Seelbinder to the Registrant. 1 *
</TABLE>
<PAGE> 17
<TABLE>
<S> <C> <C> <C>
10.14. Letter dated January 30, 1998 from G. Arthur
Seelbinder to the Registrant. 1 *
10.15 Second Amendment to Amended and Restated
Loan Agreement dated as of January 1,1998
between the Registrant and First Union
National Bank, a national banking association,
as successor in interest to First Union
National Bank of Tennessee. 7 *
10.16 Fourth Amendment to Revolving/Term Loan
Note dated as of January 1, 1998 between
the Registrant and First Union National Bank,
a national banking association, a ssuccessor
in interest to First Union National Bank of
Tennessee. 1 *
10.17 Reaffirmation of Amended and Restated
Guaranty made by the Registrant on April 20,
1998 to the Chase Manhattan Bank. 3 *
10.18 Letter agreement dated March 26, 1998 between
The Chase Manhattan Bank and G.Arthur
Seelbinder. 2 *
10.19 Amendment to Grid Time Promissory Note dated
March 26, 1998 between The ChaseManhattan Bank and
G. Arthur Seelbinder. 1 *
10.20 Loan Agreement dated September 24, 1998,
between the Registrant and First Union
National Bank and NationsBank of Tennessee,
N.A., both national banking associations. 69 *
10.21 Loan Agreement dated September 24, 1998,
between the Registrant and The CIT
Group/Equipment Financing, Inc. 8 *
10.22 Letter dated September 17, 1998 from G.
Arthur Seelbinder to the Registrant 1 *
16.1 Letter dated August 14, 1996 from Price
Waterhouse LLP to the Securities and
Exchange Commission. 1 *
21.1 Subsidiaries of Registrant 1 **
23.1 Consent of KPMG LLP. 1 18
24.1. Powers of Attorney. 9 **
24.2. Certified resolution of the Registrant's
Board of Directors authorizing officers and
directors signing on behalf of the Registrant
to sign pursuant to a power of attorney. 1 **
27.1. Financial Data Schedules (submitted
electronically for SEC information only). 3 **
</TABLE>
(a) The Registrant will furnish a copy of any exhibit to a
beneficial owner of its securities or to any person from whom a
proxy was solicited in connection with the Registrant's most
recent Annual Meeting of Shareholders upon the payment of a fee
of fifty cents ($.50) per page.
* Incorporated by reference.
** Previously filed
<PAGE> 1
Exhibit 23.1
Consent of Independent Certified Public Accountants
The Board of Directors
Cooker Restaurant Corporation
We consent to the incorporation by reference in the registration
statements on Form S-8 (Nos. 33-45467, 33-46475, 33- 46965,
33-48396 and 33-48397) of Cooker Restaurant Corporation of our
report dated January 27, 1999, relating to the consolidated
balance sheets of Cooker Restaurant Corporation and subsidiaries
as of January 3, 1999 and December 28, 1997, and the related
consolidated statements of income, changes in shareholders'
equity and cash flows for each of the years in the three-year
period ended January 3, 1999, which report appears in the
January 3, 1999 annual report on Form 10-K of Cooker Restaurant
Corporation. Our report refers to a change in method of
accounting for preoperational costs in fiscal year 1997.
/s/ KPMG LLP
Fort Lauderdale, Florida
May 3, 1999
