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As filed with the Securities and Exchange Commission on September 20, 1996
Registration No. 2-86142-01
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CKE RESTAURANTS, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 33-0602639
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1200 NORTH HARBOR BOULEVARD
ANAHEIM, CALIFORNIA 92801
(Address of principal executive offices)
AMENDED AND RESTATED KEY EMPLOYEE STOCK OPTION PLAN
(Full title of the plan)
Robert A. Wilson, Esq.
Vice President and General Counsel
CKE Restaurants, Inc.
1200 North Harbor Boulevard
Anaheim, California 92801
(Name and address of agent for service)
(714) 774-5796
(Telephone number, including area code, of agent for service)
Copy to:
C. Craig Carlson, Esq.
J. Michael Vaughn, Esq.
Stradling, Yocca, Carlson & Rauth, a Professional Corporation
660 Newport Center Drive, Suite 1600, Newport Beach, California 92660
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On June 20, 1994, the shareholders of Carl Karcher Enterprises, Inc.,
a California corporation and the predecessor of the Registrant ("Enterprises"),
approved a reorganization transaction as a result of which Enterprises was
succeeded by the Registrant for the purpose of changing its form of
organization. The reincorporation was effected by a merger of CKE Food
Services, Inc. with and into Enterprises on June 20, 1994. CKE Food Services,
Inc. was organized as a wholly-owned subsidiary of the Registrant, a Delaware
corporation, solely for the purpose of effecting the reorganization. At the
effective time of the merger, the separate corporate existence of CKE Food
Services, Inc. ceased, and Enterprises survived the merger as a wholly-owned
subsidiary of the Registrant.
The Registrant has assumed all of the obligations of Enterprises, its
predecessor, under the Amended and Restated Key Employee Stock Option Plan.
The registration statement of Enterprises on Form S-8, Registration No. 2-86142
(the "Registration Statement"), relating to 1,500,000 shares of Common Stock of
Enterprises (as adjusted for stock splits) offered pursuant to such plan, was
filed with the Commission on August 26, 1983. In accordance with Rule 414
under the Securities Act of 1933, the Registrant hereby adopts said
Registration Statement of Enterprises as the Registrant's own registration
statement for all purposes of the Securities Act of 1933 and the Securities
Exchange Act of 1934.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended January 29, 1996.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended May 20, 1996.
(c) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by the Report
referred to in (a) above.
(d) The description of the Registrant's Common Stock that is
contained in the Registrant's Registration Statement filed under Section 12 of
the Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant 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 of such securities then remaining unsold,
shall be deemed to be incorporated herein by reference and to be a part hereof
from the date of filing of such documents, except as to any portion of any
future annual or quarterly report to stockholders or document that is not
deemed filed under such provisions. For the purposes of this registration
statement, any statement in a document incorporated by reference shall be
deemed to be modified or superseded to the extent that a statement contained in
this registration statement modifies or
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supersedes a statement in such document. Any 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.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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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 Bylaws provides that the Registrant shall indemnify
its officers and directors in the manner and to the fullest extent permitted by
the Delaware Law. The Bylaws 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.
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 and Certificate of
Incorporation and of the Delaware Law is not intended to be exhaustive and is
respectively qualified in its entirety by such Bylaws and Certificate of
Incorporation and the Delaware Law.
Item 7. Exemption from Registration Claimed.
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Not applicable.
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Item 8. Exhibits.
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The following exhibits are filed as part of this Registration
Statement:
<TABLE>
<CAPTION>
Number Description
------ -----------
<S> <C>
23.1 Consent of KPMG Peat Marwick LLP, independent auditors, with respect to
the consolidated financial statements of the Registrant.
23.2 Consent of KPMG Peat Marwick LLP, independent auditors, with respect to
the consolidated financial statements of Summit Family Restaurants Inc.
24.1 Power of Attorney (included on signature page to the Registration Statement
at page S-1).
</TABLE>
Item 9. Undertakings.
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of
this section do not apply if the information required to be included in a
post-effective amendment by these 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 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to
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Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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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
Post-Effective Amendment No. 1 to Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Anaheim,
State of California on the 20th day of September, 1996.
CKE RESTAURANTS, INC.
By: /s/ WILLIAM P. FOLEY II
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William P. Foley II
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of CKE Restaurants, Inc.,
do hereby constitute and appoint William P. Foley II, Robert A. Wilson and
Joseph N. Stein, and each of them, our true and lawful attorneys-in-fact and
agents, each with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with 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 or necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that each of said attorneys-in-fact and agents, or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ WILLIAM P. FOLEY II
- ----------------------------------- Chairman of the Board September 20, 1996
William P. Foley II of Directors and
Chief Executive Officer
(Principal Executive Officer)
/s/ JOSEPH N. STEIN
- ----------------------------------- Chief Financial Officer September 20, 1996
Joseph N. Stein (Principal Financial Officer)
/s/ JOHN C. FULLER
- ----------------------------------- Controller September 20, 1996
John C. Fuller (Principal Accounting Officer)
</TABLE>
S-1
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<TABLE>
<S> <C> <C>
/s/ PETER CHURM
- ----------------------------------- Director September 20, 1996
Peter Churm
/s/ CARL L. KARCHER
- ----------------------------------- Director September 20, 1996
Carl L. Karcher
/s/ CARL N. KARCHER
- ----------------------------------- Director September 20, 1996
Carl N. Karcher
/s/ DANIEL D. (RON) LANE
- ----------------------------------- Vice Chairman of the Board September 20, 1996
Daniel D. (Ron) Lane
/s/ FRANK P. WILLEY
- ----------------------------------- Director September 20, 1996
Frank P. Willey
/s/ W. HOWARD LESTER
- ----------------------------------- Director September 20, 1996
W. Howard Lester
</TABLE>
S-2
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page Number
- ------ ----------- -----------
<S> <C> <C>
23.1 Consent of KPMG Peat Marwick LLP, independent --
auditors, with respect to the consolidated financial
statements of the Registrant
23.2 Consent of KPMG Peat Marwick LLP, independent --
auditors, with respect to the consolidated financial
statements of Summit Family Restaurants Inc.
24.1 Power of Attorney (included on signature page to the --
Registration Statement at page S-1).
</TABLE>
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EXHIBIT 23.1
[KPMG PEAT MARWICK LLP LETTERHEAD]
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
CKE Restaurants, Inc.:
We consent to the use of our report relating to CKE Restaurants, Inc. dated
March 19, 1996, on Form S-8 of CKE Restaurants, Inc. incorporated herein by
reference.
KPMG PEAT MARWICK LLP
Orange County, California
September 20, 1996
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Summit Family Restaurants, Inc.:
We consent to the use of our report relating to Summit Family Restaurants, Inc.
dated November 3, 1995, except as to Note 15 which is as of May 16, 1996 on
Form S-8 of CKE Restaurants, Inc. incorporated herein by reference.
KPMG PEAT MARWICK LLP
Salt Lake City, Utah
September 20, 1996
