<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 3, 1994
REGISTRATION NO.33-____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
CKE RESTAURANTS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 33-0602639
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
1200 NORTH HARBOR BOULEVARD, ANAHEIM, CALIFORNIA 92801
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)(ZIP CODE)
CKE RESTAURANTS, INC. 1994 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLAN)
<TABLE>
<S> <C>
WILLIAM P. FOLEY, II (714)774-5796
CHAIRMAN OF THE BOARD (TELEPHONE NUMBER,
1200 NORTH HARBOR BOULEVARD INCLUDING AREA CODE,
ANAHEIM, CALIFORNIA 92801 OF AGENT FOR SERVICE)
(NAME AND ADDRESS OF AGENT FOR SERVICE)
</TABLE>
<PAGE> 2
________________________________________________________________________________
CALCULATION OF REGISTRATION FEE
________________________________________________________________________________
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE
_____________________________________________________________________________________________________________________
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 500,000 shares $8.3125 $4,156,250 $1,433.19
(Under the CKE Restaurants,
Inc. 1994 Stock Incentive
Plan)
_____________________________________________________________________________________________________________________
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Registrant's 1994
Employee Stock Purchase Plan by reason of any stock dividend, stock
split, recapitalization or any other similar transaction without
receipt of consideration which results in an increase in the number of
outstanding shares of Common Stock of CKE Restaurants, Inc.
(2) Estimated solely for the purpose of calculating the registration fee
and, pursuant to Rule 457(h) of the Securities Act of 1933, based on
the average of the high and low prices of a share of Common Stock of
the Registrant on the New York Stock Exchange on November 1, 1994.
================================================================================
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by Carl Karcher Enterprises, Inc. and
its successor corporation CKE Restaurants, Inc. (collectively, the "Company"),
are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended January 31, 1994, filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act").
(b) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act since January 31, 1994.
(c) The description of the Company's common stock, par value $.01
per share (the "Common Stock"), contained in the Company's
registration statement on Form 8-B filed under the Exchange
Act, including any subsequent amendment or any report filed
for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of 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, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents (such documents, and the
documents enumerated above, being hereinafter referred to as "Incorporated
Documents").
Any statement contained in an Incorporated Document 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
Incorporated Document 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.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
(the "Delaware Law") provides for the indemnification of directors and officers
under certain circumstances, as therein set forth. The Registrant's By-laws
provides that the Registrant shall indemnify its officers and directors in the
manner and to the fullest extent permitted by the Delaware Law. The By-Laws
also permit the Registrant to enter into indemnification agreements with any
one or more of its directors, officers, employees and agents upon the approval
of the Registrant's Board of Directors.
II-1
<PAGE> 4
In addition, the Registrant's Certificate of Incorporation provides
that, pursuant to the Delaware Law, the Registrant's directors shall not be
liable to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director. This provision in the Certificate of
Incorporation does not eliminate the duty of care, and in appropriate
circumstances equitable remedies such as injunctive or other forms of
non-monetary relief will remain available under the Delaware Law. This
provision also does not affect a director's responsibilities under any other
law, such as the federal securities laws or federal environmental laws. The
Certificate of Incorporation further provides that the Registrant shall
indemnify its directors and officers in the manner and to the fullest extent
permitted by the Delaware Law, and requires the Registrant to advance
litigation expenses under certain circumstances. The Certificate of
Incorporation also provides that the indemnification provided therein shall not
be deemed to be exclusive of any other rights to which any person seeking
indemnification from the Registrant may be entitled under any agreement, vote
of stockholders or disinterested directors, or otherwise. The above discussion
of the Registrant's Bylaws, Certificate of Incorporation and of the Delaware
Law is not intended to be exhaustive and is respectively qualified in its
entirety by such Bylaws, Certificate of Incorporation and the Delaware Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- -------- ------------------------------
<S> <C>
4.1 * Certificate of Incorporation of the Registrant.
4.2 * By-Laws of the Registrant.
5 Opinion and consent of McDermott, Will & Emery as to the legality of the securities being registered.
23.1 Consent of McDermott, Will & Emery (included in its opinion filed as Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
24 Power of Attorney. Reference is made to page II-5 of this Registration Statement.
99 CKE Restaurants, Inc. 1994 Employee Stock Purchase Plan.
- ------------------
</TABLE>
* Incorporated by reference to the Company's Registration Statement on
Form S-8 (File No. 33-55337), filed on September 1, 1994.
ITEM 9. UNDERTAKINGS.
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as
amended (the "Act");
II-2
<PAGE> 5
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
the Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
Registration Statement;
provided, however, that paragraphs (i) and (ii) shall not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
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.
(4) That, for the purposes of determining any liability under the
Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act and 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 the Registration Statement shall be deemed to be
a new registration statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
(5) Insofar as indemnification for liabilities arising under the
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
Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by
a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
II-3
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Anaheim, State of California, on October 28,
1994.
CKE RESTAURANTS, INC.
By: /s/ WILLIAM P. FOLEY, II
----------------------------------
William P. Foley, II
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints each of William P. Foley, II and
Loren C. Pannier his true and lawful attorney-in-fact and agent, each with full
power of substitution and revocation, for him and in his name, place and stead,
in any and all capacities, to sign any and 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 each such
attorney-in-fact and agent, full power and authority to do and perform such
each and every act and thing requisite and necessary to be done, as fully to
all intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement and the foregoing Power of Attorney have been signed on
October 28, 1994, by the following persons in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE
<S> <C>
/s/ WILLIAM P. FOLEY II Chairman of the Board
--------------------------------------- Chief Executive Officer
William P. Foley II (Principal Executive Officer)
/s/ LOREN C. PANNIER Senior Vice President,
--------------------------------------- Chief Financial Officer
Loren C. Pannier (Principal Financial Officer)
/s/ LAURIE A. BALL Vice President, Controller
--------------------------------------- (Principal Accounting Officer)
Laurie A. Ball
</TABLE>
II-4
<PAGE> 7
<TABLE>
<CAPTION>
SIGNATURES TITLE
<S> <C>
Director
---------------------------------------
Peter Churm
/s/ FRANK P. WILLEY Director
---------------------------------------
Frank P. Willey
Director
---------------------------------------
Carl L. Karcher
/s/ CARL N. KARCHER Director
---------------------------------------
Carl N. Karcher
/s/ DANIEL D. (RON) LANE Director
---------------------------------------
Daniel D. (Ron) Lane
Director
---------------------------------------
Elizabeth A. Sanders
</TABLE>
II-5
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION OF EXHIBIT NUMBER
<S> <C> <C>
4.1 * Certificate of Incorporation of the Registrant.
4.2 * By-Laws of the Registrant.
5 Opinion and consent of McDermott, Will & Emery as to the
legality of the securities being registered.
23.1 Consent of McDermott, Will & Emery (included in its opinion
filed as Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
24 Power of Attorney. Reference is made to page II-5 of this
Registration Statement.
99 CKE Restaurants, Inc. 1994 Employee Stock Purchase Plan.
- ------------------------
</TABLE>
* Incorporated by reference to the Company's Registration Statement
on Form S-8 (File No. 33-55337), filed on September 1, 1994.
II-6
<PAGE> 1
[MCDERMOTT, WILL & EMERY LETTERHEAD]
EXHIBIT 5
November 3, 1994
CKE Restaurants, Inc.
1200 North Harbor Boulevard
P.O. Box 4349
Anaheim, California 92803-4349
Re: CKE Restaurants, Inc. -
Registration Statement for Offering
of 500,000 Shares of Common Stock
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, of an aggregate of
500,000 shares of Common Stock under the CKE Restaurants, Inc. 1994 Employee
Stock Purchase Plan (the "Plan"). We advise you that, in our opinion, when such
shares have been issued and sold pursuant to the applicable provisions of the
Plan in accordance with the Registration Statement, such shares will be validly
issued, fully paid and non-assessable shares of CKE Restaurants, Inc. Common
Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
McDERMOTT, WILL & EMERY
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
CKE Restaurants, Inc.
We consent to the use of our reports relating to Carl Karcher Enterprises, Inc.
(now known as CKE Restaurants, Inc.), dated March 21, 1994, incorporated herein
by reference.
KPMG PEAT MARWICK LLP
Orange County, California
November 2, 1994
<PAGE> 1
EXHIBIT 99
CKE RESTAURANTS, INC.
1994 EMPLOYEE STOCK PURCHASE PLAN
<PAGE> 2
CKE RESTAURANTS, INC.
(a Delaware corporation)
1994 EMPLOYEE STOCK PURCHASE PLAN
1. Purpose of Plan. The purpose of this 1994 Stock Purchase Plan
(the "Plan") is to encourage a sense of proprietorship on the part of employees
of CKE Restaurants, Inc., a Delaware corporation (the "Company"), and its
subsidiary corporations (as defined below) by assisting them in making regular
purchases of shares of the Company, and thus to benefit the Company by
increasing such employees' interest in the growth of the Company and subsidiary
corporations and in such entities' financial success. Participation in the
Plan is entirely voluntary, and the Company makes no recommendations to its
employees as to whether they should participate.
2. Definitions.
2.1 "Base Earnings" shall mean the Employee's regular
salary rate before deductions required by law and deductions authorized by the
Employee. Base Earnings do not include: pay for overtime, extended workweek
schedules, or any other form of extra compensation; payments by the Company or
subsidiary corporations, as applicable, of social security, worker's
compensation, unemployment compensation, any disability payments or other
payments required by statute; or contributions by the Company or subsidiary
corporations, as applicable, for insurance, annuity, or other employee benefit
plans.
2.2 "Board" shall mean the Board of Directors of the
Company.
2.3 "Broker" shall mean the financial institution
designated to act as Broker under the Plan pursuant to Paragraph 17 hereof.
2.4 "Brokerage Account" shall mean an account established
on behalf of each Participant pursuant to Paragraph 9.1 hereof.
2.5 "Committee" shall mean a Stock Purchase Committee
appointed by the Board.
2.6 "Common Stock" shall mean the Common Stock of the
Company.
2.7 "Company" shall mean CKE Restaurants, Inc., a
Delaware corporation, or any successor.
1
<PAGE> 3
2.8 "Company Account" shall mean the account established
in the name of the Company pursuant to Paragraph 7.2 hereof.
2.9 "Employee" shall mean any person who has reached the
age of majority and who is currently employed by the Company or one of its
subsidiary corporations (i) on an hourly basis as a restaurant employee for at
least 30 hours per week and has been so employed continuously during the
preceding one (1) year (Provided that the Board or the Committee may in its
discretion waive such one (1) year requirement), excluding non-employees and
persons on leave of absence; (ii) on an hourly basis as a non-restaurant
employee for at least 30 hours per week and has been so employed continuously
during the preceding 90 days (provided that the Board or the Committee may in
its discretion waive such 90 day requirement), excluding non-employees and
persons on leave of absence or (iii) is exempt from the overtime and minimum
wage requirements under federal and state laws and has been so employed
continuously during the preceding 90 days (provided that the Board or the
Committee may in its discretion waive such 90-day requirement), excluding
non-employees and persons on leave of absence. An Employee may also be
referred to herein as a Participant.
2.10 "Enrollment Form" shall mean the Employee Stock
Purchase Plan Enrollment Form.
2.11 "Interested Party" shall mean the persons described
in Paragraph 16 hereof.
2.12 "Plan" shall mean this 1994 Employee Stock Purchase
Plan.
2.13 "Subsidiary" shall mean a corporation, domestic or
foreign, of which not less than 50% of the voting shares are held by the
Company or a subsidiary corporation, whether or not such corporation now exists
or is hereafter organized or acquired by the Company or a subsidiary
corporation.
3. Administration. The Plan shall be administered by the Board
or, in the discretion of the Board, by the Committee which shall consist of not
less than two persons to be appointed by, and to serve at the pleasure of, the
Board. No member of the Board or Committee who is not an Employee shall be
eligible to participate in the Plan. An aggregate of 500,000 shares of Common
Stock shall be subject to the Plan, provided that such number shall be
automatically adjusted to reflect any stock split, reverse stock split, stock
dividend, recapitalization, merger, consolidation, combination,
reclassification or similar corporate change. The Board or the Committee shall
have full authority to construe, interpret, apply and administer the Plan and
to establish and amend such rules and procedures as it deems
2
<PAGE> 4
necessary or appropriate from time to time for the proper administration of the
Plan. In addition, the Board or the Committee may engage or hire such persons,
including without limitation, the Broker, to provide administrative,
recordkeeping and other similar services in connection with its administration
of the Plan, as it may deem necessary or appropriate from time to time. The
members of the Board and the Committee and the officers of the Company shall be
entitled to rely upon all certificates and reports made by such persons,
including the Broker, and upon all opinions given by any legal counsel or
investment adviser selected or approved by the Board or the Committee. The
members of the Board and the Committee and the officers of the Company shall be
fully protected in respect of any action taken or suffered to be taken by them
in good faith in reliance upon any such certificates, reports, opinions or
other advice of any such person, and all action so taken or suffered shall be
conclusive upon each of them and upon all Participants. The Company shall
indemnify each member of the Board and the Committee and any other officer or
employee of the Company who is designated to carry out any responsibilities
under the Plan for any liability arising out of or connected with his or her
duties hereunder, except such liability as may arise from such person's gross
negligence or willful misconduct.
4. Eligibility. Any Employee as defined in Paragraph 2.9 shall
be eligible to participate in the Plan. Any Employee participating in the Plan
who, after the commencement of a particular Offering Period, as defined in
Paragraph 5, shall for any reason fail to meet the standards of eligibility
shall be considered to have withdrawn from the Plan, effective as of the date
upon which the Participant shall have become ineligible. Any reference in this
Plan to withdrawal by a Participant from the Plan shall include ineligibility
as described in this Paragraph 4.
5. Offering Periods. Shares shall be offered pursuant to this
Plan in periods which coincide with the Company's fiscal quarters ("Offering
Periods"), commencing on the effective date of the Plan pursuant to Paragraph
22 and continuing thereafter until terminated in accordance with Paragraph 15.
The Board shall have the power to change the duration of Offering Periods if
such change is announced at least 10 days prior to the scheduled beginning of
the first Offering Period to be affected.
6. Participation. Participation in the Plan is voluntary. An
eligible Employee may apply to participate in the Plan by submitting to the
Company's Benefits Department an Enrollment Form authorizing a payroll
deduction and purchase of shares. The Enrollment Form shall be on a form
provided by the Company and may be submitted to the Company at any time.
Participation shall not be effective until the Enrollment Form is reviewed and
accepted by the Company by written notice to the Employee. Once
3
<PAGE> 5
the Enrollment Form has been reviewed and accepted by the Company,
participation in the Plan shall commence immediately.
7. Payroll Deductions.
7.1 Election. At the time a Participant submits an
Enrollment Form, the Participant shall elect to have payroll deductions made on
each payday during the Offering Period at a whole percentage from 3% to 10% of
the Base Earnings which the Participant is to receive on such payday.
7.2 Holding of Funds. All payroll deductions authorized
by each Participant shall be held in a non-interest account in the name of the
CKE Restaurants, Inc. Employee Stock Purchase Plan (the "Company Account")
until used to purchase Common Stock and shall not be used for any other
purpose. The Company shall maintain records reflecting the amount in the
Company Account of each Participant. All withholding taxes in connection with
a Participant's payroll deduction shall be deducted from the remainder of the
Base Earnings paid to the Participant and not from the amount to be placed in
the Company Account. A Participant may not make any additional payments into
the Company Account except as provided in Paragraph 18. All amounts in the
Company Account derived from payroll deductions shall be referred to as the
"Participant Contribution."
7.3 Changes in Election. Participation in the Plan will
continue until the Participant withdraws from the Plan, is no longer eligible
to participate or the Plan is terminated. Such participation shall be on the
basis of the payroll deduction election submitted by such Employee to the
Company and then currently in effect. Each such election shall remain in
effect until the effective date of any change in the amount of payroll
deduction as requested by the Participant and accepted by the Company. To be
effective in any Offering Period, a change in the amount of payroll deduction
must be requested in writing and submitted to the Company. A Participant may
change his withholding percentage at any time during an Offering Period, but
only one time during any Offering Period. If a Participant's Base Earnings
change during an Offering Period, the amount of the payroll deduction will be
changed to the figure reflecting the Participant's previously elected deduction
percentage applied to his or her new Base Earnings (but will not in any event
be in excess of 10% of the Participant's Base Earnings).
8. Contribution by the Company or a Subsidiary. The Company or a
Subsidiary shall make matching contributions (the "Matching Contribution") as
follows:
8.1 Officers and Directors as Participants. For each
officer or director of the Company or a Subsidiary who participates in the Plan
and remains an Employee of the Company or a Subsidiary
4
<PAGE> 6
for at least one year after the termination of a particular Offering Period,
the Company or Subsidiary shall make upon the one year anniversary date after
such Offering Period a Matching Contribution equal to either one-half of the
number of shares purchased on behalf of such Participant or equal to one-half
of the dollar amount contributed by such Participant during such one year
earlier Offering Period subject to Paragraph 8.3, at the sole discretion of the
Company, less all withholding taxes in connection with such Matching
Contribution. "Officer" shall mean those individuals elected as Officers by
the Board of Directors of the Company and its Subsidiaries, and shall be
determined as of the end of an Offering Period. "Director" shall mean an
employee and a member of the Board of Directors of the Company and its
subsidiaries. Withholding taxes as and when required in connection with such
Matching Contribution shall be withheld based upon the person's existing
withholding percentages or as otherwise required by law from the Participant's
base earnings.
8.2 Other Participants. For each Participant in the Plan
(other than an officer or director) who remains an Employee of the Company or a
Subsidiary for at least one year after the termination of a particular Offering
Period, the Company or Subsidiary shall make upon the one year anniversary date
after such Offering Period a Matching Contribution equal to either one-third of
the number of shares purchased on behalf of such Participant or equal to
one-third of the dollar amount contributed by such Participant during such one
year earlier Offering Period subject to Paragraph 8.3, at the sole discretion
of the Company. Withholding taxes as and when required in connection with such
Matching Contribution shall be withheld based upon the person's existing
withholding percentages or as otherwise required by law from the Participant's
base earnings.
8.3 Intentionally Omitted
8.4 Timing of Withholding. The Company shall withhold
taxes in two subsequent pay periods or as otherwise required by law.
9. Purchase of Shares Regarding Participant's Contribution.
9.1 Brokerage Account. Following the acceptance by the
Company of a Participant's Enrollment Form, the Company shall direct the Broker
to open and maintain an account (the "Brokerage Account") in the name of such
Participant and to purchase shares of Common Stock on behalf of such
Participant as permitted under this Plan.
9.2 Delivery of Funds to Broker from Company. The
Company, from time to time during an Offering Period, shall deliver to the
Broker an amount equal to the total of all Participant Contributions together
with a list of the amount of such Contributions form each Participant.
5
<PAGE> 7
9.3 Broker's Purchase of Shares. From time to time, the
Broker, as agent for the Participants, shall purchase as many full shares or
fractional shares of Common Stock as such Contributions will permit. The
shares to be purchased shall be purchased at the then current fair market value
and may, at the election of the Company, be either treasury shares, shares
authorized but unissued, or shares purchased on the open market. The amount of
Common Stock purchased by the Broker pursuant to this Paragraph 9.3 shall be
allocated to the respective Brokerage Account of each Participant on the basis
of the average cost of the Common Stock so purchased, in proportion to the
amount allocable to each Participant. At the end of each Offering Period under
the Plan, each Participant shall acquire full ownership of all full shares and
fractional shares of Common Stock purchased for his Brokerage Account. Unless
otherwise requested by the Participant, all such full shares and fractional
shares so purchased shall be registered in the name of the Broker and will
remain so registered until delivery is requested in accordance with Paragraph
9.5.
9.4 Fees and Commissions. The Company shall pay the
Broker's administrative charges for opening and maintaining the Brokerage
Accounts for active Participants and the brokerage commissions on purchases
made for such Brokerage Accounts which are attributable to Participant
Contributions and Matching Contributions under the Plan. Such Brokerage
Accounts may be utilized for other transactions as described in Paragraph 9.5
below, but any fees, commissions or other charges by the Broker in connection
with such other transactions shall, in certain circumstances described in
Paragraph 9.5, be payable directly to the Broker by the Participant.
9.5 Participant Accounts with Broker. Each Participant's
Brokerage Account shall be credited with all cash dividends paid with respect
to full shares and fractional shares of Common Stock purchased pursuant to
Paragraphs 9.3 and 10 unless such shares are registered in the Participant's
name. Unless otherwise instructed by the Participant, dividends on such Common
Stock shall automatically be reinvested in Common Stock as soon as practicable
following receipt of such dividends by the Broker. Applicable fees and
brokerage commissions on the reinvestment of such dividends will be payable by
the Participant. Any stock dividends or stock splits which are made with
respect to shares of Common Stock purchased pursuant to Paragraphs 9.3 and 10
shall be credited to the Participant's Brokerage Account without charge. Any
Participant may request that a certificate for any or all of the full shares of
Common Stock credited to his or her Brokerage Account be delivered to him at
any time; provided, however, the Participant shall be charged by the Broker for
any fees applicable to such requests. A Participant may request the Broker at
any time to sell any or all of the full shares or fractional shares of Common
Stock credited to his Brokerage Account. Unless otherwise instructed by the
Participant, upon such sale, the Broker will mail
6
<PAGE> 8
to the Participant a check for the proceeds, less any applicable fees and
brokerage commissions and any transfer taxes, registration fees or other normal
charges which shall be payable by the Participant. Except as provided in
Paragraph 13, a request by the Participant to the Broker to sell shares of
Common Stock or for delivery of certificates shall not affect an Employee's
status as a Participant. A Participant who has a Brokerage Account with the
Broker may purchase additional shares of Common Stock of the Company for his
Brokerage Account at any time by separate purchases arranged through the
Broker. When any such purchases are made, the Participant will be charged by
the Broker for any and all fees and brokerage commissions applicable to such
transactions. In addition, any subsequent transactions with respect to such
shares acquired including, but not limited to, purchases, sales, reinvestment
of dividends, requests for certificates, and crediting of stock dividends or
stock splits, shall be at the expense of the Participant and the Broker shall
charge the Participant directly for any and all fees and brokerage commissions
applicable to such transactions.
10. Issuance of Shares Regarding Matching Contribution. Subject
to Paragraph 20, on the 10th day after the first anniversary of an Offering
Period, each Participant's direct employer shall make the Matching Contribution
for each qualified Participant in an amount described in Paragraph 8 by
delivering to the Broker an amount equal to the total funds necessary to make
the Matching Contributions described in Paragraph 8 together with a list of the
number of shares allocable to the Brokerage Account of each Participant. As
soon as practicable thereafter, the Broker shall purchase the number of shares
of Common Stock required in order to make the Matching Contributions. The
shares to be purchased shall be purchased at the then current fair market value
and allocated to participant accounts on the settlement date. The shares may,
at the election of the Company, be either treasury shares, shares authorized
but unissued, or shares purchased on the open market. At the time of such
allocation, each Participant shall immediately acquire full ownership of all
full and fractional shares of Common Stock purchased. Unless otherwise
requested by the Participant, all such shares so purchased shall be registered
in the name of the Broker and will remain so registered until delivery is
requested in accordance with Paragraph 9.5.
11. Voting and Shares. All voting rights with respect to the full
and fractional shares of Common Stock held in the Brokerage Account of each
Participant may be exercised by each Participant and the Broker shall exercise
such voting rights in accordance with the Participant's signed proxy
instruction duly delivered to the Broker.
12. Statement of Account. As soon as practicable after the end of
each Offering Period, the Broker shall deliver to each Participant a statement
regarding all activity in his or her
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Brokerage Account, including his or her participation in the Plan for such
Offering Period. Such statement will show the number of shares acquired or
sold, the price per share, the transaction date, stock splits, dividends paid,
dividends reinvested and the total number of shares held in the Brokerage
Account. The Broker shall also deliver to each Participant as promptly as
practicable, by mail or otherwise, all notices of meetings, proxy statements
and other material distributed by the Company to its stockholders, including
the Company's annual report to its stockholders containing audited financial
statements.
13. Withdrawal from the Plan. A Participant may withdraw from the
Plan, effective as of the end of any Offering Period, by giving written notice
to the Company not later than the 15th day prior to the end of such Offering
Period. Upon any such withdrawal, the Participant shall be entitled to receive
as promptly as possible from the Company all of the Participant's payroll
deductions credited to the Company Account in his or her name during the
applicable Offering period, but shall not be entitled to the benefit of any
Matching Contributions. In the event a Participant withdraws from the Plan
pursuant to this Paragraph 13, the Company shall notify the Broker as soon as
practicable and the broker shall maintain or close the Participant's Brokerage
Account in accordance with the procedures set forth in Paragraph 16. A
Participant who withdraws from the Plan may not reenter the Plan except by
execution and delivery of a new Enrollment Form and payroll deduction election,
and his or her participation shall be effective upon acceptance of the
Enrollment Form by the Company by written notice to the Employee not sooner
than 30 days after receipt of the Enrollment Form, provided that the Company
may in its discretion accept an Enrollment Form prior to the expiration of such
30 days.
14. Termination of Employment. In the event of the termination of
a Participant's employment with the Company or a Subsidiary for any reason
during an Offering Period, including, but not limited to, the death of a
Participant, participation in the Plan shall terminate as well as any rights to
future Matching Contributions. The Participant or the personal representative
of the Participant shall be entitled to receive an amount of cash determined in
the same manner and payable at the same time as if the Participant had
withdrawn from the Plan by giving notice of withdrawal effective as of the date
such termination occurs. Notwithstanding the foregoing, termination of
employment by one employer for the purpose of being re-employed immediately by
the Company or one of its Subsidiaries shall not be considered termination
under this Paragraph 14. Any reference in this Plan to withdrawal by a
Participant from the Plan shall include termination as described in this
Paragraph 14. In the event of the termination of a Participant's employment
pursuant to this Paragraph 14, the Company shall notify the broker as soon as
practicable and the
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Broker shall maintain or close the Participant's Brokerage Account in
accordance with the procedures set forth in Paragraph 16.
15. Amendment, Suspension and Termination of Plan. This Plan may
be amended or terminated by the Board at any time and such amendment or
termination shall be communicated in writing to all Participants as soon as
practicable after the date of such Board action. If the Plan is terminated,
each Participant shall be entitled to receive as promptly as possible from the
Company all payroll deductions attributable to him or her which have not been
used for purchase of Common Stock pursuant to Paragraph 9, ("Account Balance"),
but he or she shall not be entitled to the benefit of any future Matching
Contributions with respect to such deductions or interest or otherwise for any
past Offering Periods. In any event, this Plan shall terminate 20 years from
the date the Plan is adopted or the date the Plan is approved by the
stockholders, whichever is earlier. In the event that the Company terminates
the Plan pursuant to this Paragraph 15, the Broker shall maintain or close the
Participant's Brokerage Accounts in accordance with the procedures set forth in
Paragraph 16. Notwithstanding any other provision to the contrary, any
provision of this Plan may be amended by the Board or the Committee as required
to obtain necessary approvals of governmental agencies if such change does not
materially alter the rights and interests of stockholders of the Company. If
there are any changes in the capitalization of the Company, such as through
mergers, consolidations, reorganizations, recapitalizations, stock splits or
stock dividends, appropriate adjustments will be made by the Company in the
number of shares of its Common stock subject to purchase under the Plan.
16. Disposition of Brokerage Account Following Withdrawal, Death,
Termination of Employment or Termination of Plan. As soon as practicable
following the notification of the withdrawal of a Participant from the Plan,
the notification of the termination of a Participant's employment with the
Company or a Subsidiary (which includes the death of the Participant) or of the
notification that the Plan is terminated pursuant to Paragraph 15 hereof, the
Broker shall notify the former Participant, or in the event of his death, his
designated beneficiary, if any, or if no designated beneficiary the estate of
the deceased Participant (collectively, an "Interested Party"), regarding the
disposition of the former Participant's or deceased Participant's Brokerage
Account. As soon as practicable following receipt of the notification set
forth in the preceding sentence, the Interested Party may request the Broker to
dispose of the former Participant's or deceased Participant's Brokerage
Account, at the Interested Party's expense, by any one of the following means:
(a) The Interested Party may request the Broker to
maintain the former Participant's or deceased Participant's Brokerage Account
for the benefit of the Interested Party or any other person. The Interested
Person shall be charged by the Broker
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for all maintenance fees and any and all other fees in connection with the
Brokerage Account.
(b) The Interested Party may request the Broker to sell
all of the full shares and fractional shares of Common Stock, if any, held in
the former Participant's or deceased Participant's Brokerage Account. Upon
such sale, the Broker will mail to the Interested Party a check for the
proceeds, less any applicable fees and brokerage commissions and any transfer
taxes, registration fees or other charges which shall be payable by the
Interested Party.
(c) The Interested Party may request the Broker to
provide a certificate for all of the full shares of Common Stock, if any,
together with a check in an amount equal to the proceeds of the sale any
fractional shares of Common Stock held in the former Participant's or deceased
Participant's Brokerage Account, less any applicable fees and brokerage
commissions and any transfer taxes, registration fees or other charges which
are payable by the Participant.
17. Broker. The Broker shall be Merrill Lynch, Pierce, Fenner &
Smith Incorporated which has agreed to act as Broker for such period as is
determined by the Company. Either the Company or the Broker may terminate
such designation at any time upon 30 days' written notice. In the event of
such termination of the Broker, the Company may administer the Plan without the
use of a Broker or may appoint a successor Broker. Any successor Broker shall
be vested with all the powers, rights, duties and immunities of the Broker
hereunder to the same extent as if originally named as the Broker hereunder.
The relationship between the Broker and the Participant will be the normal
relationship of a broker and its client, and the Company assumes no
responsibility in this respect.
18. Initial Contribution. Any Participant who files a Enrollment
Form prior to the first Offering Period may elect to make an initial
contribution ("Initial Contribution") to be allocated to him or her in the
Company Account, by check payable to the Company, in any amount up to 10% of
his or her Base Earnings for the period between August 16, 1994, and the
commencement of the first Offering Period. The amount of the Initial
Contribution shall be matched as provided in Paragraph 8, and withholding taxes
in connection with such Matching Contributions shall be deducted in the same
manner as provided in Paragraph 8.
18.1 Lump Sum Contribution. The Board and/or Committee
may from time to time in its discretion allow any Participant in the Plan to
make a lump sum contribution ("Lump Sum Contribution") to be credited to him or
her in the Company Account, by check
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payable to the Company, in any amount up to 10% of his or her Base Earnings,
for a period prescribed by the Board and/or Committee. The amount of the Lump
Sum Contribution shall be matched as provided in Paragraph 8, and withholding
taxes in connection with such Matching Contributions shall be deducted in the
same manner as provided in Paragraph 8.
19. Conditions to Issuance of Shares. Shares shall not be issued
under the Plan unless issuance and delivery of such shares pursuant to the Plan
shall comply with all applicable provisions of law, domestic or foreign,
including, without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the rules and regulations
promulgated thereunder, the securities laws of the state in which any Employee
resides, NASD requirements and the requirements of any stock exchange upon
which the Common Stock may then be listed, and shall be further subject to the
approval of counsel for the Company with respect to such compliance. By
execution of the Enrollment Form, the Participant covenants and agrees that all
shares are being purchased only for investment and without any present
intention to sell or distribute such shares.
20. Notices.
20.1 To Company or Subsidiaries. Any notice hereunder to
the Company or to its Subsidiaries shall be in writing and such notice shall be
deemed made only when delivered or three days after being mailed by certified
mail, return receipt requested, to the Company's principal office at 1200 North
Harbor Boulevard, Anaheim, California 92801 or to such other address as the
Company may designate by notice to the Participants.
20.2 To Participant. Any notice to a Participant
hereunder shall be in writing and any such communication and any delivery to a
Participant shall be deemed made if mailed or delivered to the Participant at
such address as the Participant may have on file with the Company and with the
Broker.
21. Miscellaneous.
21.1 No Limitation on Termination of Employment. Nothing
in the Plan shall in any manner be construed to limit in any way the right of
the Company or any of its Subsidiaries to terminate an Employee's employment at
any time, without regard to the effect of such termination on any right such
Employee would otherwise have under the Plan, or give any right to an Employee
to remain employed by the Company in any particular position or at any
particular rate of remuneration.
21.2 Liability. The Company, its Subsidiaries, any member
of the Board or Committee and any other person participating in any
determination of any question under the Plan, or in the
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interpretation, administration or application of the Plan, shall have no
liability to any party for any action taken or not taken in good faith under
the Plan, or based on or arising out of a determination of any question under
the Plan or an interpretation, administration or application of the Plan made
in good faith.
21.3 Captions. The captions of the paragraphs of this
Plan are for convenience only and shall not control or affect the meaning or
construction of any of its provisions.
21.4 Assignment. Any rights of Employees hereunder shall
be nonforfeitable, and no Account Balance or contribution made by any employer
may revert or inure to the benefit of the Company or any Subsidiary, provided
that no Participant shall be entitled to sell, assign, pledge or hypothecate
any right or interest in his or her Account Balance.
21.5 Governing Law. Delaware law governs this Plan.
21.6 Severability. In case any provision of this Plan
shall be held illegal or invalid for any reason, said illegality or invalidity
shall not affect the remaining parts hereof, but this Plan shall be construed
and enforced as if such illegal and invalid provision had never been inserted
herein.
21.7 Successors. The provisions of this Plan shall bind
and inure to the benefit of the Company and its successors and assigns. The
term "successors" as used herein shall include any corporate or other business
entity which shall by merger, consolidation, purchase or otherwise acquire all
or substantially all of the business and assets of the Company, and successors
of any such corporation or other business entity.
22. Effective Date of Plan. The Plan shall become effective upon
the first day of the next fiscal quarter after which the Board approves the
Plan, subject to ratification by the stockholders of the Company, and all
necessary approvals of governmental agencies have been received.
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