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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.
1999 Nonstatutory 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, including all exhibits, 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
----------------- ---------- ------------ ---------- ------------
1999 NONSTATUTORY 400,000 $ 8.25 $3,300,000 $8,712.00
STOCK OPTION PLAN
Common Stock,
Par Value $0.01
TOTAL 400,000 $ 8.25 $3,300,000 $8,712.00
_______________________________
(1) The securities to be registered 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 October 16, 2000 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
The following documents filed with the Securities and Exchange Commission
by Garden Fresh Restaurant Corporation (the "Company") are hereby incorporated
by reference in this registration statement:
a) The Company's Annual Report on Form 10-K, filed with the Securities and
Exchange Commission on December 29, 1999 (SEC File No. 000-25886), as amended
on January 20, 2000 (SEC File No. 000-25886), 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.
b) The Company's Quarterly Report on Form 10-Q, filed on February 14,
2000 (SEC File No. 000-25886), for the period ended December 31, 1999.
c) The Company's Quarterly Report on Form 10-Q, filed on May 12, 2000
(SEC File No. 000-25886), as amended, filed on May 15, 2000 (SEC File No.
000-25886), for the period ended March 31, 2000.
d) The Company's Quarterly Report on Form 10-Q, filed on August 14, 2000
(SEC File No. 000-25886), for the period ended June 30, 2000.
e) 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.
f) 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 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
The class of securities to be offered is registered under section 12 of
the Securities Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
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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 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 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;
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(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.
(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 of 1933, 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 October 23, 2000.
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 of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities indicated on October 23, 2000.
SIGNATURE TITLE
-----------------------------------------------------------------------------
/s/ Michael P. Mack
------------------------
Michael P. Mack Chairman of the Board, President, Chief Executive
Officer and Director (Principal Executive Officer)
/s/ David W. Qualls
------------------------
David W. Qualls Executive Vice President-Finance and Real Estate,
Chief Financial Officer and Secretary (Principal
Financial and Accounting Officer)
/s/ Edgar F. Berner
------------------------
Edgar F. Berner Director
/s/ Robert A. Gunst
------------------------
Robert A. Gunst Director
/s/ Michael M. Minchin, Jr.
------------------------
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
GRAY CARY WARE & FREIDENRICH LLP
4365 EXECUTIVE DRIVE, SUITE 1600
SAN DIEGO, CA 92121
TEL (858) 677-1400
FAX (858) 677-1477
October 18, 2000
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 400,000
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. 1999 Nonstatutory 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 400,000 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 23.2a
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the use of our report incorporated by reference herein.
KPMG LLP
San Diego, California
October 23, 2000
EXHIBIT 23.2b
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
October 20, 2000
