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Registration No: 333-______
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES EXCHANGE ACT OF 1933
Garden Fresh Restaurant Corp.
(Exact name of registrant as specified in its charter)
Delaware 33-0028786
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
17180 Bernardo Center Drive
San Diego, California 92128
(Address of principal executive offices) (Zip code)
Garden Fresh Restaurant Corp.
1998 Stock Option Plan
(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, California 92128
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (858) 675-1600
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Exchange Act of 1933, as amended.
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered (1) Registered per Share(2) Price(2) Fee
1998 Stock Option Plan 300,000 $16.3125 $4,893,750 $1,316.42
Common Stock,
Par Value $0.01
Total 300,000 $16.3125 $4,893,750 $1,316.42
_______________________________
(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. The price is based upon the average of
the high and low prices of the Common Stock on December 20, 1999 as
reported on the National Association of Securities Dealers Automated
Quotations System.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Garden Fresh Restaurant Corporation (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 1993, as amended (the "Securities Act"), containing audited
financial statements for the Company's fiscal year ended September 30, 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.
c) The description of the Company's Common Stock contained in the Company's
Registration Statement on Form 8-A filed on June 24, 1998 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 by 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
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indemnification of its directors, officers, employees and agents to the full
extent permitted by the General Corporation Law of the Sate 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.
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 Exchange 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 Exchange 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.
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(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 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 ACCELLERATION 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
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 Act and
will be governed by the final adjudication of such issue.
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SIGNATURE
Pursuant to the requirements of the Exchange 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 December 21, 1999.
GARDEN FRESH RESTAURANT CORP.
By: /s/ David W. Qualls
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, her 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 December 21, 1999.
/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.
- ------------------------
John M. Robbins, Jr. Director
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EXHIBIT INDEX
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
4365 EXECUTIVE DRIVE, SUITE 1600
SAN DIEGO, CA 92121
TEL (619) 677-1400
FAX (619) 677-1477
December 21, 1999
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 1,380,318
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 1,380,318 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 9, 1998 relating to the
financial statements, which appears in Garden Fresh Restaurant Corp.'s Annual
Report on Form 10-K for the year ended September 30, 1998.
PriceWaterhouseCoopers LLP
San Diego, California
December 16, 1999
