<PAGE>
As filed with the Securities and Exchange Commission on November 24, 1997
Registration No. 333-_______
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
------------------
KOO KOO ROO, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 22-3132583
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
11075 SANTA MONICA BOULEVARD, SUITE 225
LOS ANGELES, CALIFORNIA 90025
(Address of principal executive offices) (Zip Code)
------------------
1997 STOCK OPTION PLAN FOR
RESTAURANT EMPLOYEES AND
MANAGEMENT OF KOO KOO ROO, INC.
AND
FUTURE FUND, A LONG-TERM 401(K) SAVINGS PROGRAM
FOR KOO KOO ROO EMPLOYEES
(Full Title of the Plan)
----------------------------------
ROBERT F. KAUTZ
PRESIDENT AND CHIEF FINANCIAL OFFICER
11075 SANTA MONICA BOULEVARD, SUITE 225
LOS ANGELES, CALIFORNIA 90025
(310) 479-2080
(Name, address, including zip code, and telephone
number,including area code, of agent for service)
------------------
Copies to:
Anthony J. Richmond, Esq.
Latham & Watkins
633 West Fifth Street, Suite 4000
Los Angeles, California 90071
(213) 485-1234
-----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------
Proposed
Amount Proposed Maximum
Title of Each of Shares Maximum Aggregate Amount of
Class of Securities to be Offering Price Offering Registration
to be Registered (1) Registered (1)(2) Per Share (3) Price (3) Fee
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 750,000 $3.4219 $2,566,425 $778
$.01 par value
</TABLE>
____________
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plans described herein and an indeterminate number of
shares of the common stock, par value $.01 per share (the "Common Stock") of
Koo Koo Roo, Inc., a Delaware corporation (the "Company"), to be offered and
sold pursuant to the employee benefit plans described herein.
(2) The 1997 Stock Option Plan for Restaurant Employees and Management of Koo
Koo Roo, Inc. (the "Stock Option Plan") authorizes the issuance of a maximum
of 750,000 shares of Common Stock. All of such shares are subject to
presently outstanding options granted under the Stock Option Plan as of the
date hereof.
(3) Pursuant to Rule 457(h), the Proposed Maximum Offering Price Per Share is
based upon the average of the high and low sales prices per share ($3.4219)
of the Company's Common Stock on the Nasdaq Stock Market on November 21,
1997.
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
(plan information and registrant information) will be sent or given to plan
participants as specified by Rule 428(b)(1) of the Securities Act. Such
documents need not be filed with the Securities and Exchange Commission either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 of the Act. These documents, which include the
statement of availability required by Item 2 of Form S-8, and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Form S-8 (Part II hereof), taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Act.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The registrant, Koo Koo Roo, Inc., a Delaware corporation (the
"Company"), hereby incorporates the following documents in this Registration
Statement by reference:
(a) Description of the Company's Common Stock contained in the
Registration Statement on Form S-3 filed with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act
of 1933, as amended, on March 13, 1997 (Registration No. 333-23263),
as amended by Amendment No. 1 filed with the Commission on May 5,
1997, and Amendment No. 2 filed with the Commission on June 5, 1997;
(b) Annual Report on Form 10-K for the Company's fiscal year ended
December 31, 1996 (the "Form 10-K");
(c) Amendment No. 1 to Form 10-K on Form 10-K/A for the year ended
December 31, 1996 filed with the Commission on April 30, 1997;
(d) Quarterly Reports on Form 10-Q for the quarterly periods ended
March 31, 1997, June 30, 1997, and September 30, 1997;
(e) Current Reports on Form 8-K for events dated February 27, 1997, March
6, 1997, April 10, 1997, May 2, 1997, May 19, 1997, June 24, 1997,
and October 21, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, are incorporated by reference in this registration statement
and are a part hereof from the date of filing such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is 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 4. Description of Securities
The Company's Common Stock is registered pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended, and, therefore, the description of
securities is omitted.
Page 2 of 8 pages
<PAGE>
Item 5. Interests of Named Experts and Counsel
The validity of the original issuance of the Common Stock registered
hereby is passed on for the Company by McKenna & Stahl, Irvine, California.
Harry S. Stahl, a partner in McKenna & Stahl, owns options to acquire 25,000
shares of Common Stock.
Item 6. Indemnification of Directors and Officers
The Company's Certificate of Incorporation, as amended, provides that a
director of the Company will not be personally liable to the Company or its
stockholders for monetary damages for any breach of fiduciary duty as a
director, except in certain cases where liability is mandated by the Delaware
General Corporation Law. This provision has no effect on any non-monetary
remedies that may be available to the Company or its stockholders, nor does it
relieve the Company or its directors from compliance with federal or state
securities laws. The Certificate of Incorporation also provides that each
person who is or was or had agreed to become a director or officer of the
Company or of certain affiliated entities shall be indemnified by the Company,
in accordance with its Bylaws, to the full extent permitted from time to time by
the Delaware General Corporation Law and that the Company may enter into one or
more agreements with any person which provide for indemnification greater or
different therefrom. The Bylaws provide that each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she or a person of whom he or she is the legal
representative is or was a director, officer or employee of the Company or is or
was serving at the request of the Company as a director, officer, employee or
agent of another enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in an official
capacity as a director, officer, employee or agent, or in any other capacity
while serving as a director, officer, employee or agent, shall be indemnified
and held harmless by the Company to the fullest extent authorized by the
Delaware General Corporation Law. The Bylaws also provide for advancement of
expenses. Following any "change in control" of the Company of the type required
to be reported under Item 1 to Form 8-K promulgated under the Exchange Act, any
determination of entitlement to indemnification under the Company's Bylaws must
be made by independent legal counsel.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
3.1 Restated Certificate of Incorporation of the Company/1/
3.2 Certificate of Amendment to the Restated Certificate of
Incorporation of the Company/2/
3.3 Amended and Restated By-laws of the Company/3/
3.4 Amendment to Bylaws/4/
4.1 Specimen of Common Stock Certificate of the Company/1/
*4.2 1997 Stock Option Plan for Restaurant Employees and
Management of Koo Koo Roo, Inc.
*5.1 Opinion of McKenna & Stahl
*23.1 Consent of BDO Seidman, LLP
*23.2 Consent of McKenna & Stahl (included in Exhibit 5.1 hereto)
*24.1 Power of Attorney (included on page 5)
(Footnotes on following page)
Page 3 of 8 pages
<PAGE>
_______________________
* Filed herewith
/1/ Incorporated by reference to the Company's Registration Statement on Form
S-18 (No. 33-42487-NY) declared effective on October 15, 1991.
/2/ Incorporated by reference from the Company's Current Report on Form 8-K
dated March 18, 1996.
/3/ Incorporated by reference to the Company's Transition Report on Form 10-K
for the six months ended June 30, 1992.
/4/ Incorporated by referenced from the Company's Current Report on Form 8-K
dated December 14, 1995.
Item 9. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(b) To reflect in the prospectus any facts or events arising after the
effective date of this 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(c) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (1)(a) and (1)(b) shall not apply to
information contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Page 4 of 8 pages
<PAGE>
Insofar as indemnification for liabilities arising under the Securities Act
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 Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
Page 5 of 8 pages
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Los Angeles, State of California, on this 24th day of November
1997.
KOO KOO ROO, INC.
By: /s/ Robert F. Kautz
--------------------------------------------
Robert F. Kautz
President of Koo Koo Roo, Inc.,
Chief Financial Officer and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Kenneth Berg, Robert F. Kautz, John S. Kaufman,
Michael D. Mooslin and Ronald D. Garber, and each of them, as his or her true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her 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 other 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
foregoing, as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Exchange Act of 1933, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Kenneth Berg Chairman of the Board, November 24, 1997
- ------------------------- Chief Executive
Kenneth Berg Officer and Director
(Principal Executive
Officer)
/s/ Robert F. Kautz President of Koo Koo Roo, November 24, 1997
- -------------------------
Robert F. Kautz Inc., Chief Financial Officer
and Director (Principal
Financial Officer)
/s/ John S. Kaufman President of Koo Koo Roo November 24, 1997
- -------------------------
John S. Kaufman USA and Director
/s/ Michael D. Mooslin President of Koo Koo Roo November 24, 1997
- -------------------------
Michael D. Mooslin International, President and
Chief Executive Officer of
Color Me Mine, Inc. and Director
Page 6 of 8 pages
<PAGE>
/s/ Mary E. Arnold Vice President Finance November 24, 1997
- --------------------- (Principal Accounting Officer)
Mary E. Arnold
Treasurer and Director November , 1997
- ---------------------
Morton J. Wall
/s/ Kory L. Berg Director November 24, 1997
- ---------------------
Kory L. Berg
Director November , 1997
- ---------------------
Lee A. Iacocca
Director November , 1997
- ---------------------
Donald Wohl
Director November , 1997
- ---------------------
Mel Harris
Page 7 of 8 pages
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT PAGE
- ------- ----
<S> <C> <C>
3.1 Restated Certificate of Incorporation of the Company/1/
3.2 Certificate of Amendment to the Restated Certificate of Incorporation
of the Company/2/
3.3 Amended and Restated By-laws of the Company/3/
3.4 Amendment to Bylaws/4/
4.1 Specimen of Common Stock Certificate of the Company/1/
*4.2 1997 Stock Option Plan for Restaurant Employees and Management of
Koo Koo Roo, Inc.
*5.1 Opinion of McKenna & Stahl
*23.1 Consent of BDO Seidman, LLP
*23.2 Consent of McKenna & Stahl (included in Exhibit 5.1 hereto)
*24.1 Power of Attorney (included on page 5)
</TABLE>
_______________________
* Filed herewith
/1/ Incorporated by reference to the Company's Registration Statement on Form
S-18 (No. 33-42487-NY) declared effective on October 15, 1991.
/2/ Incorporated by reference from the Company's Current Report on Form 8-K
dated March 18, 1996.
/3/ Incorporated by reference to the Company's Transition Report on Form 10-K
for the six months ended June 30, 1992.
/4/ Incorporated by referenced from the Company's Current Report on Form 8-K
dated December 14, 1995.
Page 8 of 8 pages
<PAGE>
1997 STOCK OPTION PLAN
FOR
RESTAURANT EMPLOYEES AND MANAGEMENT
OF
KOO KOO ROO, INC.
Koo Koo Roo, Inc., a corporation organized under the laws of the State
of Delaware, hereby adopts this 1997 Stock Option Plan for Restaurant Employees
and Management of Koo Koo Roo, Inc. and its subsidiaries. The purposes of this
Plan are as follows:
(1) To further the growth, development and financial success of the
Company by providing additional incentives to certain of its Employees by
assisting them to become owners of the Company's Common Stock and thus to
benefit directly from its growth, development and financial success.
(2) To enable the Company to obtain and retain the services of
certain Employees considered essential to the long-range success of the Company
by providing and offering them an opportunity to become owners of the Company's
Common Stock under options.
ARTICLE I
DEFINITIONS
-----------
Whenever the following terms are used in this Plan, they shall have
the meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and neuter and the
singular shall include the plural, where the context so indicates.
Section 1.1 - Board
- ----------- -----
"Board" shall mean the Board of Directors of the Company.
-----
<PAGE>
Section 1.2 - Code
- ----------- ----
"Code" shall mean the Internal Revenue Code of 1986, as amended.
----
Section 1.3 - Committee
- ----------- ---------
"Committee" shall mean the Board or, if it so designates, a Stock Option
---------
Committee of the Board appointed to administer this Plan as provided in Section
6.1.
Section 1.4 - Company
- ----------- -------
"Company" shall mean Koo Koo Roo, Inc., a Delaware Corporation.
-------
Section 1.5 - Director
- ----------- --------
"Director" shall mean a member of the Board.
--------
Section 1.6 - Employee
- ----------- --------
"Employee" shall mean any employee (as defined in accordance with the
--------
regulations and revenue rulings then applicable under Section 3401(c) of the
Code) of the Company, or of any corporation or other entity which is then a
Parent Corporation or a Subsidiary, whether such employee is so employed at the
time this Plan is adopted or becomes so employed subsequent to the adoption of
this Plan.
Section 1.7 - Exchange Act
- ----------- ------------
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
------------
Section 1.8 - Ineligible Employee
- ----------- -------------------
"Ineligible Employee" shall mean, as of a particular date, any Employee if
-------------------
such Employee is also an officer or Director of the Company on such date.
Section 1.9 - Option
- ----------- ------
"Option" shall mean an option to purchase Common Stock of the Company,
------
granted under the Plan. All such "Options" shall constitute "non-qualified"
options under the Code.
Section 1.10 - Optionee
- ------------ --------
"Optionee" shall mean an Employee to whom an Option is granted under the
--------
Plan.
2
<PAGE>
Section 1.11 - Parent Corporation
- ------------ ------------------
"Parent Corporation" shall mean any corporation in an unbroken chain of
------------------
corporations ending with the Company if each of the corporations other than the
Company then owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in such chain.
Section 1.12 - Plan
- ------------ ----
"Plan" shall mean this 1997 Stock Option Plan for Restaurant Employees and
----
Management of Koo Koo Roo, Inc.
Section 1.13 - Secretary
- ------------ ---------
"Secretary" shall mean the Secretary of the Company.
---------
Section 1.14 - Securities Act
- ------------ --------------
"Securities Act" shall mean the Securities Act of 1933, as amended.
--------------
Section 1.15 - Subsidiary
- ------------ ----------
"Subsidiary" shall mean any corporation, partnership, limited liability
----------
company or other entity in an unbroken chain beginning with the Company if each
of the entities other than the last such entity in the unbroken chain then owns
equity interests possessing 50% or more of the total combined voting power of
all classes of equity ownership interests in one of the other entities in such
chain. A partnership or limited liability shall in any event be deemed a
"Subsidiary" for purposes of the Plan if the Company or a Subsidiary is the
general partner or managing member thereof, respectively.
Section 1.16 - Termination of Employment
- ------------ -------------------------
"Termination of Employment" shall mean the time when the employee-employer
-------------------------
relationship between the Optionee and the Company, a Parent Corporation or a
Subsidiary is terminated for any reason, with or without cause, including, but
not by way of limitation, a termination by resignation, discharge, death or
retirement, but excluding any termination where there is a simultaneous
reemployment by the Company, a Parent Corporation or a Subsidiary. The
Committee, in its absolute discretion, shall determine the effect of all other
matters and questions relating to Termination of Employment, including, but not
by way of limitation, the question of whether a Termination of Employment
resulted from a discharge for good cause, and all questions of whether
particular leaves of absence constitute Terminations of Employment.
3
<PAGE>
ARTICLE II
SHARES SUBJECT TO PLAN
----------------------
Section 2.1 - Shares Subject to Plan
- ----------- ----------------------
The shares of stock subject to Options shall be shares of the
Company's $.01 par value Common Stock. The aggregate number of such shares
which may be issued upon exercise of Options shall not exceed 750,000.
Section 2.2 - Unexercised Options
- ----------- -------------------
If any Option expires or is cancelled without having been fully
exercised, the number of shares subject to such Option but as to which such
Option was not exercised prior to its expiration or cancellation may again be
optioned hereunder, subject to the limitations of Section 2.1.
Section 2.3 - Changes in Company's Shares
- ----------- ---------------------------
In the event that the outstanding shares of Common Stock of the
Company are hereafter changed into or exchanged for a different number or kind
of shares or other securities of the Company, or of another corporation, by
reason of reorganization, merger, consolidation, recapitalization,
reclassification, stock split-up, stock dividend or combination of shares,
appropriate adjustments shall be made by the Committee in the number and kind of
shares for the purchase of which Options may thereafter be granted, including
adjustments of the limitations in Section 2.1 on the maximum number and kind of
shares which may be issued on exercise of Options.
ARTICLE III
GRANTING OF OPTIONS
-------------------
Section 3.1 - Eligibility
- ----------- -----------
Any Employee of the Company or of any entity which is then a Parent
Corporation or a Subsidiary, other than an Ineligible Employee, shall be
eligible to be granted Options.
Section 3.2 - Granting of Options
- ----------- -------------------
(a) The Committee shall from time to time, in its absolute
discretion:
(i) Determine which Employees (other than Ineligible Employees)
should be granted Options; and
4
<PAGE>
(ii) Determine the number of shares to be subject to such Options
granted to such selected; and
(iii) Determine the terms and conditions of such Options,
consistent with the Plan.
(b) Upon the selection of an Employee (other than an Ineligible Employee)
to be granted an Option, the Committee shall instruct the Secretary to issue
such Option and may impose such conditions on the grant of such Option as it
deems appropriate. Without limiting the generality of the preceding sentence,
the Committee may, in its absolute discretion and on such terms as it deems
appropriate, require as a condition to the grant of an Option to an Employee
that the Employee surrender for cancellation some or all of the unexercised
options which have been previously granted to him (whether granted under the
Plan or any other stock option plan of the Company). An Option the grant of
which is conditioned upon such surrender may have an option price lower (or
higher) than the option price of the surrendered option, may cover the same (or
a lesser or greater) number of shares as the surrendered option, may contain
such other terms as the Committee deems appropriate and shall be exercisable in
accordance with its terms, without regard to the number of shares, price, option
period or any other term or condition of the surrendered option.
ARTICLE IV
TERMS OF OPTIONS
----------------
Section 4.1 - Option Agreement
- ----------- ----------------
Each Option shall be evidenced by a written Stock Option Agreement,
which shall be executed by the Optionee and an authorized officer of the Company
and which shall contain such terms and conditions as the Committee shall
determine, consistent with the Plan.
Section 4.2 - Option Price
- ----------- ------------
(a) The price of the shares subject to each Option shall be set by
the Committee; provided, however, that the price per share shall be not less
than 100% of the fair market value of such shares on the date such Option is
granted.
(b) For purposes of the Plan, the "fair market value" of a share of
-----------------
the Company's Common Stock as of a given date shall be: (i) the closing price of
a share of the Company's Common Stock on the principal exchange on which shares
of the Company's Common Stock are then trading, if any, on the day previous to
such date, or, if shares were not traded on the day previous to such date, then
on the next preceding trading day during which a sale occurred; or (ii) if such
Common Stock is not traded on an exchange but is quoted on Nasdaq or a successor
quotation system, (1) the last reported sales price (if the Company's Common
Stock is then quoted on the Nasdaq National Market) or (2) the mean between the
closing representative bid and asked prices (in all other cases) for the
5
<PAGE>
Company's Common Stock on the day previous to such date as reported by Nasdaq or
such successor quotation system; or (iii) if such Common Stock is not publicly
traded on an exchange and not quoted on Nasdaq or a successor quotation system,
the mean between the closing bid and asked prices for the Company's Common
Stock, on the day previous to such date, as determined in good faith by the
Committee; or (iv) if the Company's Common Stock is not publicly traded, the
fair market value established by the Committee acting in good faith.
Section 4.3 - Commencement of Exercisability
- ----------- ------------------------------
(a) Subject to the provisions of Section 4.3(b), Options shall become
exercisable at such times and in such installments (which may be cumulative) as
the Committee shall provide in the terms of each individual Option; provided,
however, that by a resolution adopted after an Option is granted the Committee
may, on such terms and conditions as it may determine to be appropriate and
subject to Section 4.3(b), accelerate the time at which such Option or any
portion thereof may be exercised.
(b) No portion of an Option which is unexercisable at Termination of
Employment shall thereafter become exercisable.
Section 4.4 - Expiration of Options
- ----------- ---------------------
(a) No Option may be exercised to any extent by anyone after the
first to occur of the following events:
(i) The expiration of ten years from the date the Option was
granted; or
(ii) Except in the case of any Optionee who is disabled (within
the meaning of Section 22(e)(3) of the Code), the expiration of three
months from the date of the Optionee's Termination of Employment for any
reason other than such Optionee's death unless the Optionee dies within
said three-month period; or
(iii) In the case of an Optionee who is disabled (within the
meaning of Section 22(e)(3) of the Code), the expiration of one year from
the date of the Optionee's Termination of Employment for any reason other
than such Optionee's death unless the Optionee dies within said one-year
period; or
(iv) The expiration of one year from the date of the Optionee's
death.
(b) Subject to the provisions of Section 4.4(a), the Committee shall
provide, in the terms of each individual Option, when such Option expires and
becomes unexercisable; and (without limiting the generality of the foregoing)
the Committee may provide in the terms of individual Options that said Options
expire immediately upon a Termination of Employment for any reason.
6
<PAGE>
Section 4.5 - Consideration
- ----------- -------------
In consideration of the granting of an Option, if the Committee shall
request, the Optionee shall agree in the written Stock Option Agreement to
remain in the employ of the Company, a Parent Corporation or a Subsidiary for a
period of time after the Option is granted as the Committee may specify, if any.
Nothing in this Plan or in any Stock Option Agreement hereunder shall confer
upon any Optionee any right to continue in the employ of the Company, any Parent
Corporation or any Subsidiary or shall interfere with or restrict in any way the
rights of the Company, its Parent Corporations and its Subsidiaries, which are
hereby expressly reserved, to discharge any Optionee at any time for any reason
whatsoever, with or without cause and with or without notice.
Section 4.6 - Adjustments in Outstanding Options
- ----------- ----------------------------------
Subject to the provisions of Section 4.7, in the event that the
outstanding shares of the stock subject to Options are changed into or exchanged
for a different number or kind of shares of the Company or other securities of
the Company by reason of merger, consolidation, recapitalization,
reclassification, stock split-up, stock dividend or combination of shares, the
Committee shall make an appropriate and equitable adjustment in the number and
kind of shares as to which all outstanding Options, or portions thereof then
unexercised, shall be exercisable, to the end that after such event the
Optionee's proportionate interest shall be maintained as before the occurrence
of such event. Such adjustment in an outstanding Option shall be made without
change in the total price applicable to the Option or the unexercised portion of
the Option (except for any change in the aggregate price resulting from
rounding-off of share quantities or prices) and with any necessary corresponding
adjustment in Option price per share.
Section 4.7 - Merger, Consolidation, Acquisition, Liquidation or Dissolution
- ----------- --------------------------------------------------------------
Notwithstanding the provisions of Section 4.6, in its absolute
discretion, and on such terms and conditions as it deems appropriate, the
Committee may provide by the terms of any Option that such Option shall be
terminated and cannot be exercised after the merger or consolidation of the
Company with or into another corporation, the acquisition by another corporation
or person of all or substantially all of the Company's assets or 80% or more of
the Company's then outstanding voting stock or the liquidation or dissolution of
the Company; and if the Committee so provides, it may, in its absolute
discretion and on such terms and conditions as it deems appropriate, also
provide, either by the terms of such Option or by a resolution adopted prior to
the occurrence of such merger, consolidation, acquisition, liquidation or
dissolution, that, for some period of time prior to such event, such Option
shall be exercisable as to all shares covered thereby, notwithstanding anything
to the contrary in Section 4.3(a) and/or any unsatisfied installment vesting
provisions of such Option.
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ARTICLE V
EXERCISE OF OPTIONS
-------------------
Section 5.1 - Person Eligible to Exercise
- ----------- ---------------------------
Except as otherwise expressly permitted by the Committee in its
absolute discretion, during the lifetime of the Optionee, only he may exercise
an Option (or any portion thereof) granted to such Optionee. After the death of
the Optionee, any exercisable portion of an Option may, prior to the time when
such portion becomes unexercisable under the Plan or the applicable Stock Option
Agreement, be exercised by his personal representative or by any person
empowered to do so under the deceased Optionee's will or under the then
applicable laws of descent and distribution.
Section 5.2 - Partial Exercise
- ----------- ----------------
At any time and from time to time prior to the time when any
exercisable Option or exercisable portion thereof becomes unexercisable under
the Plan or the applicable Stock Option Agreement, such Option or portion
thereof may be exercised in whole or in part; provided, however, that the
Company shall not be required to issue fractional shares and the Committee may,
by the terms of the Option, require any partial exercise to be with respect to a
specified minimum number of shares.
Section 5.3 - Manner of Exercise
- ----------- ------------------
An exercisable Option, or any exercisable portion thereof, may be
exercised solely by delivery of all of the following to the Secretary or his
office or that of his designee prior to the time when such Option or such
portion becomes unexercisable under the Plan or the applicable Stock Option
Agreement:
(a) Notice in writing signed by the Optionee or other person then
entitled to exercise such Option or portion, stating that such Option or portion
is exercised, such notice complying with all applicable rules established by the
Committee; and
(b) Full payment for the shares with respect to which such Option or
portion is thereby exercised, such payment to be made by cashier's or official
bank check or, if then permitted by the Committee, by direct broker payment if
the shares of Common Stock issuable upon exercise are to be immediately resold
in a market transaction; and
(c) The payment to the Company (or other employer entity) of all
amounts which it is required to withhold under federal, state or local law in
connection with the exercise of the Option; with the consent of the Committee;
and
(d) Such representations and documents as the Committee, in its
absolute discretion, deems necessary or advisable to effect compliance with all
applicable provisions of the Securities Act and any other federal or state
securities laws or regulations. The
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Committee may, in its absolute discretion, also take whatever additional actions
it deems appropriate to effect such compliance including, without limitation,
placing legends on share certificates and issuing stop-transfer orders to the
Company's transfer agent and registrar; and
(e) In the event that the Option or portion thereof shall be
exercised pursuant to Section 5.1 by any person or persons other than the
Optionee, appropriate proof of the right of such person or persons to exercise
the Option or portion thereof.
Section 5.4 - Certain Timing Requirements; Transfer Restrictions
- ----------- --------------------------------------------------
The Committee, in its absolute discretion, may adopt from time to time
such policies and procedures establishing "black-out" and "window" periods
during which exercise of Options or resale of the related shares of Common Stock
are prohibited as it shall deem prudent or advisable to facilitate compliance
with all applicable securities laws. The Committee may enforce any such
policies by directing that the certificates evidencing shares acquired by
exercise of an Option refer to the related restrictions, by imposition of "stock
transfer" instructions with the Company's transfer agent and registrar, or
otherwise, as it deems appropriate in its absolute discretion.
Section 5.5 - Conditions to Issuance of Stock Certificates
- ----------- --------------------------------------------
The shares of stock issuable and deliverable upon the exercise of an
Option, or any portion thereof, may be either previously authorized but unissued
shares or issued shares which have then been reacquired by the Company. The
Company shall not be required to issue or deliver any certificate or
certificates for shares of stock purchased upon the exercise of any Option or
portion thereof prior to fulfillment of all of the following conditions:
(a) The admission of such shares to listing on all stock exchanges on
which such class of stock is then listed; and
(b) The completion of any registration or other qualification of such
shares under any state or federal law or under the rulings or regulations of the
Securities and Exchange Commission or any other governmental regulatory body,
which the Committee shall, in its absolute discretion, deem necessary or
advisable; and
(c) The obtaining of any approval or other clearance from any state
or federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
(d) The payment to the Company (or other employer corporation) of all
amounts which it is required to withhold under federal, state or local law in
connection with the exercise of the Option; and
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<PAGE>
(e) The lapse of such reasonable period of time following the
exercise of the Option as the Committee may establish from time to time for
reasons of administrative convenience.
Section 5.6 - Rights as Stockholders
- ----------- ----------------------
The holders of Options shall not be, nor have any of the rights or
privileges of, stockholders of the Company in respect of any shares purchasable
upon the exercise of any part of an Option unless and until certificates
representing such shares have been issued by the Company to such holders.
ARTICLE VI
ADMINISTRATION
--------------
Section 6.1 - Stock Option Committee
- ----------- ----------------------
The Committee shall be the Board unless and until the Board shall duly
constitute a Stock Option Committee expressly for the purpose of administering
this particular Plan.
Section 6.2 - Duties and Powers of Committee
- ----------- ------------------------------
It shall be the duty of the Committee to conduct the general
administration of the Plan in accordance with its provisions. The Committee
shall have the power to interpret the Plan and the Options and to adopt such
rules for the administration, interpretation and application of the Plan as are
consistent therewith and to interpret, amend or revoke any such rules.
Section 6.3 - Majority Rule
- ----------- -------------
The Committee shall act by a majority of its members. The Committee
may act either by vote at a meeting or by written instrument signed by the
members of the Committee.
Section 6.4 - Compensation; Professional Assistance; Good Faith Actions
- ----------- ---------------------------------------------------------
Members of the Committee shall receive such compensation for their
services as members as may be determined by the Board. All expenses and
liabilities incurred by members of the Committee in connection with the
administration of the Plan shall be borne by the Company. The Committee may
employ attorneys, consultants, accountants, appraisers, brokers or other
persons. The Committee, the Company and its officers and Directors shall be
entitled to rely upon the advice, opinions or valuations of any such persons.
All actions taken and all interpretations and determinations made by the
Committee in good faith shall be final and binding upon all Optionees, the
Company and all other
10
<PAGE>
interested persons. No member of the Committee shall be personally liable for
any action, determination or interpretation made in good faith with respect to
the Plan or the Options, and all members of the Committee shall be fully
protected by the Company in respect to any such action, determination or
interpretation.
ARTICLE VII
OTHER PROVISIONS
----------------
Section 7.1 - Options Not Transferable
- ----------- ------------------------
Except as otherwise expressly permitted by the Committee in its
absolute discretion, no Option or interest or right therein or part thereof
shall be liable for the debts, contracts or engagements of the Optionee or his
successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means
whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that nothing in this
Section 7.1 shall prevent transfers by will or by the applicable laws of descent
and distribution.
Section 7.2 - Amendment, Suspension or Termination of the Plan
- ----------- ------------------------------------------------
The Plan may be wholly or partially amended or otherwise modified,
suspended or terminated at any time or from time to time by the Board. Neither
the amendment, suspension nor termination of the Plan shall, without the consent
of the holder of the Option, impair any rights or obligations under any Option
theretofore granted. No Option may be granted during any period of suspension
nor after termination of the Plan, and in no event may any Option be granted
under this Plan after the expiration of ten years from the date the Plan is
adopted by the Board.
Section 7.3 - Effect of Plan Upon Other Option and Compensation Plans
- ----------- -------------------------------------------------------
The adoption of this Plan shall not affect any other compensation or
incentive plans in effect for the Company, any Parent Corporation or any
Subsidiary. Nothing in this Plan shall be construed to limit the right of the
Company, any Parent Corporation or any Subsidiary (a) to establish any other
forms of incentives or compensation for employees of the Company, any Parent
Corporation or any Subsidiary or (b) to grant or assume options otherwise than
under this Plan in connection with any proper corporate purpose, including, but
not by way of limitation, the grant or assumption of options in connection with
the acquisition by purchase, lease, merger, consolidation or otherwise, of the
business, stock or assets of any corporation, firm or association.
11
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Section 7.4 - Titles
- ----------- ------
Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of the Plan.
Section 7.5 - Conformity to Securities Laws
- ----------- -----------------------------
The Plan is intended to conform to the extent necessary with all
provisions of the Securities Act and the Exchange Act and any and all
regulations and rules promulgated by the Securities and Exchange Commission
thereunder. Notwithstanding anything herein to the contrary, the Plan shall be
administered, and Options shall be granted and may be exercised, only in such a
manner as to conform to such laws, rules and regulations. To the extent
permitted by applicable law, the Plan and Options granted hereunder shall be
deemed amended to the extent necessary to conform to such laws, rules and
regulations.
* * * *
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EXHIBIT 5.1
[LETTERHEAD OF MCKENNA & STAHL]
November 21, 1997
Koo Koo Roo, Inc.
11075 Santa Monica Boulevard
Los Angeles, California 90025
Re: Registration Statement on Form S-8
----------------------------------
Gentlemen:
This opinion is furnished to you in connection with the
Registration Statement on Form S-8 ("Registration Statement"), which has been
filed with the Securities and Exchange Commission ("SEC") to register (a)
750,000 shares ("Shares") of the common stock, par value $.01 per share ("Common
Stock") of Koo Koo Roo, Inc., a Delaware corporation ("Company") pursuant to the
1997 Stock Option Plan for Restaurant Employees and Management of Koo Koo Roo,
Inc. and (b) an indeterminate number of shares of the Company's Common Stock to
be offered and sold pursuant to the Future Fund, A Long-Term 401(K) Savings
Program for Koo Koo Roo Employees.
In rendering this opinion, we have examined the original,
certified, conformed or photostatic copies of certificates of public officials,
certificates of officers and representatives of the Company and others, and such
other documents as we have deemed necessary or relevant as a basis for the
opinions herein expressed. In all such examinations we have assumed the
genuineness of all signatures on original or certified documents and the
conformity to original or certified documents of all copies submitted to us as
conformed or photostatic copies. As to various questions of fact material to
such opinions, we have relied upon statements or certificates of officers and
representatives of the Company and others.
<PAGE>
Koo Koo Roo, Inc.
November 21, 1997
Page 2
Based upon the foregoing, in our opinion the Shares have been duly
authorized and, when issued, will be validly issued, fully paid and
nonassessable.
Our opinions expressed above are limited to the laws of the State
of California, the laws of the United States of America and the General
Corporation Law of the State of Delaware, and we do not express any opinion
herein concerning the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as an Exhibit to
the Registration Statement and we further consent to the reference to our firm
under the caption "Interests of Named Experts and Counsel" in Item 5 of Part II
of the Registration Statement.
Very truly yours,
/s/ Harry S. Stahl
Harry S. Stahl
HSS:pk
<PAGE>
EXHIBIT 23.1
Consent of Independent Certified Public Accounts
Koo Koo Roo, Inc.
Los Angeles, California
We hereby consent to the use in the Prospectus constituting a part of this
Registration Statement on Form S-8 of our report dated March 5, 1997, relating
to the consolidated financial statements of Koo Koo Roo, Inc. which is
incorporated by reference in such Prospectus.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/ BDO SEIDMAN, LLP
BDO SEIDMAN, LLP
Los Angeles, California
November 19, 1997
