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Registration No.__________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GARDEN FRESH RESTAURANT CORP.
(Exact name of registrant as specified in its charter)
Delaware 33-0028786
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
17180 Bernardo Center Drive
San Diego, CA 92128
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(Address of principal executive offices) (Zip code)
GARDEN FRESH RESTAURANT CORP.
1998 STOCK OPTION PLAN
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(Full title of the plan)
David W. Qualls
Executive Vice President-Finance and Real Estate,
Chief Financial Officer and Secretary
Garden Fresh Restaurant Corp.
17180 Bernardo Center Drive
San Diego, CA 92128
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (619) 675-1600
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended (the
"Securities Act").
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CALCULATION OF REGISTRATION FEE
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PROPOSED
TITLE OF MAXIMUM PROPOSED
SECURITIES OFFERING MAXIMUM AMOUNT OF
TO BE AMOUNT TO BE PRICE PER AGGREGATE REGISTRATION
REGISTERED (1) REGISTERED SHARE (2) OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
1998 Stock Option Plan
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Common Stock 87,310 $15.84 $ 1,313,142.40
Par Value $0.01 993,008 $18.28125 $18,153,427.50
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TOTAL 1,080,318 $19,466,569.90 $5,742.64
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Garden Fresh Restaurant Corp. (the "Company") hereby incorporates by
reference in this registration statement the following documents:
(a) The Company's latest prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the "Securities Act"), containing
audited financial statements for the Company's fiscal year ended September
30, 1997, as filed with the Securities and Exchange Commission.
(b) All other reports filed 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 registrant document referred to in (a)
above.
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(1) Includes options to acquire such Common Stock.
(2) The offering price is estimated pursuant to Rule 457 solely for
purposes of calculating the registration fee. As to the shares subject to
outstanding but unexercised options, the price is computed on the basis of
the average exercise price for the options outstanding. As to the shares
available for grant under the 1998 Stock Option Plan, the price is based upon
the average of the high and low prices of the Common Stock on June 23, 1998
as reported on the National Association of Securities Dealers Automated
Quotations System.
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(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on April 19, 1995 under the
Exchange Act, including any amendment or 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 to this registration statement which indicates that
all securities offered hereby have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference
in this registration statement and to be a part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Delaware law authorizes corporations to eliminate the personal liability
of directors to corporations and their stockholders for monetary damages for
breach or alleged breach of the directors' "duty of care." While the
relevant statute does not change directors' duty of care, it enables
corporations to limit available relief to equitable remedies such as
injunction or rescission. The statute has no effect on directors' duty of
loyalty, acts or omissions not in good faith or involving intentional
misconduct or knowing violations of law, illegal payment of dividends and
approval of any transaction from which a director derives an improper
personal benefit.
The Company has adopted provisions in its Certificate of Incorporation
which eliminate the personal liability of its directors to the Company and
its stockholders for monetary damages for breach or alleged breach of their
duty of care. The Bylaws of the Company provide for indemnification of its
directors, officers, employees and agents to the full extent permitted by the
General Corporation Law of the State of Delaware, the Company's state of
incorporation, including those circumstances in which indemnification would
otherwise be discretionary under Delaware Law. Section 145 of the General
Corporation Law of the State of Delaware provides for indemnification in
terms sufficiently broad to indemnify such individuals, under certain
circumstances, for liabilities (including reimbursement of expenses incurred)
arising under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
See Exhibit Index.
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ITEM 9. UNDERTAKINGS
(a) RULE 415 OFFERING
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;
(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)(l)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by reference in
the 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.
(b) FILING INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE
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 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.
(h) REQUEST FOR ACCELERATION OF EFFECTIVE DATE OR FILING OF REGISTRATION
STATEMENT ON FORM S-8
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
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant
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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.
SIGNATURE
Pursuant to the requirements of the Securities Act, 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 San Diego, State of California, on June 24, 1998.
GARDEN FRESH RESTAURANT CORP.
By: /s/ David W. Qualls
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David W. Qualls, Executive Vice
President-Finance and Real Estate,
Chief Financial Officer and Secretary
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POWER OF ATTORNEY
The officers and directors of Garden Fresh Restaurant Corp. whose
signatures appear below, hereby constitute and appoint Michael P. Mack and
David W. Qualls, and each of them, their true and lawful attorneys and
agents, with full power of substitution, each with power to act alone, to
sign and execute on behalf of the undersigned any amendment or amendments to
this registration statement on Form S-8, and each of the undersigned does
hereby ratify and confirm all that each of said attorney and agent, or their
or his substitutes, shall do or cause to be done by virtue hereof. Pursuant
to the requirements of the Securities Act, this registration statement has
been signed by the following persons in the capacities indicated on June 24,
1998.
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SIGNATURE TITLE
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/s/ Michael P. Mack
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Michael P. Mack Chairman of the Board, President, Chief
Executive Officer and Director
(Principal Executive Officer)
/s/ David W. Qualls
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David W. Qualls Executive Vice President-Finance and Real
Estate, Chief Financial Officer and Secretary
(Principal Financial and Accounting Officer)
/s/ Edgar F. Berner
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Edgar F. Berner Director
/s/ Robert A. Gunst
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Robert A. Gunst Director
/s/ Michael M. Minchin, Jr.
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Michael M. Minchin, Jr. Director
/s/ John M. Robbins, Jr.
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John M. Robbins, Jr. Director
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EXHIBIT INDEX
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4.1 Restated Certificate of Incorporation of the Company
is incorporated by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-8 (File
No. 33-95368) filed with the Securities and Exchange
Commission on June 16, 1995
4.2 Bylaws of the Company are incorporated by reference
to Exhibit 3.4 and 3.4A to the Company's Registration
Statement on Form S-1 filed with the Securities and
Exchange Commission on March 17, 1995 (File No. 33-
90404)
5 Opinion regarding Legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Independent Accountants
24 Power of Attorney (included in signature pages to
this registration statement)
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EXHIBIT 5
ATTORNEYS AT LAW
400 HAMILTON AVENUE
PALO ALTO, CA 94301-1825
TEL (650) 328-6561
FAX (650) 327-3699
June 24, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Garden Fresh Restaurant Corp., a Delaware
corporation (the "Company"), we are rendering this opinion in connection with
the registration under the Securities Act of 1933, as amended, of up to
1,080,318 shares of the Common Stock, $0.01 par value, of the Company
which may be issued pursuant to the exercise of options granted under the
Garden Fresh Restaurant Corp. 1998 Stock Option Plan (the "Plan").
We have examined all instruments, documents and records which we deemed
relevant and necessary for the basis of our opinion hereinafter expressed.
In such examination, we have assumed the genuineness of all signatures and
the authenticity of all documents submitted to us as originals and the
conformity to the originals of all documents submitted to us as copies. We
are admitted to practice only in the State of California and we express no
opinion concerning any law other than the law of the State of California, the
corporation laws of the State of Delaware and the federal law of the United
States. As to matters of Delaware corporation law, we have based our opinion
solely upon our examination of such laws and the rules and regulations of the
authorities administering such laws, all as reported in standard, unofficial
compilations. We have not obtained opinions of counsel licensed to practice
in jurisdictions other than the State of California.
Based on such examination, we are of the opinion that the 1,080,318
shares of Common Stock which may be issued upon exercise of options granted
under the Plan are duly authorized shares of the Company's Common Stock, and,
when issued against receipt of the consideration therefor in accordance with
the provisions of the Plan, will be validly issued, fully paid and
nonassessable. We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement referred to above and the use of our name
wherever it appears in said Registration Statement.
Respectfully submitted,
GRAY CARY WARE & FREIDENRICH LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated November 7, 1997, except as to net
income (loss) per share information as reflected in the Statement of
Operations and Notes 1 and 5 which is as of April 27, 1998, which appears on
page F-2 of the Registration Statement on Form S-1 (No. 333-51267) of Garden
Fresh Restaurant Corp.
Price Waterhouse LLP
San Diego, California
June 23, 1998
