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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): July 26, 1996
FOODMAKER, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1-9390 95-2698708
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
9330 Balboa Avenue
San Diego, California 92123
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (619) 571-2121
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Item 5. Other Events.
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Amendment of Bylaws. On July 26, 1996, the Board of
Directors of Foodmaker, Inc., a Delaware corporation (the
"Company") amended the Bylaws of the Company to add new Sections
2.10 and 3.15 thereto relating to advance notice of stockholder
proposals at annual meetings and stockholder nominations,
respectively. A copy of the Company's Bylaws, as so amended is
attached as an exhibit hereto and is incorporated herein by
reference.
Stockholder Rights Plan. On July 26, 1996 the Board of
Directors of the Company authorized and declared a dividend of
one preferred stock purchase right (a "Right") for each share of
common stock, par value $.01 per share, of the Company (the
"Common Shares"). The dividend is payable on August 15, 1996
(the "Record Date") to the holders of record of Common Shares as
of the close of business on such date.
The following is a brief description of the Rights. It
is intended to provide a general description only and is subject
to the detailed terms and conditions of a Rights Agreement (the
"Rights Agreement") dated as of July 26, 1996 by and between the
Company and Wells Fargo Bank, N. A., as Rights Agent (the "Rights
Agent").
1. Common Share Certificates Representing Rights
Until the Distribution Date (as defined in Section 2
below), (a) the Rights shall not be exercisable, (b) the Rights
shall be attached to and trade only together with the Common
Shares and (c) the stock certificates representing Common Shares
shall also represent the Rights attached to such Common Shares.
Common Share certificates issued after the Record Date and prior
to the Distribution Date shall contain a notation incorporating
the Rights Agreement by reference.
2. Distribution Date
The "Distribution Date" is the earliest of (a) the
tenth business day following the date of the first public
announcement that any person (other than the Company or certain
related entities, and with certain additional exceptions) has
become the beneficial owner of 20% or more of the then
outstanding Common Shares (such person is a "20% Stockholder" and
the date of such public announcement is the "20% Ownership
Date"), (b) the tenth business day (or such later day as shall be
designated by the Board of Directors) following the date of the
commencement of, or the announcement of an intention to make, a
tender offer or exchange offer, the consummation of which would
cause any person to become a 20% Stockholder or (c) the first
date, on or after 20% Ownership Date, upon which the Company is
acquired in a merger or other business combination in which the
Company is not the surviving corporation or in which the outstanding
Common Shares are changed into or exchanged for stock or assets of
another person, or upon which 50% or more of the Company's
consolidated assets or earning power are sold (other than in
transactions in the ordinary course of business). In calculating
the percentage of outstanding Common Shares that are beneficially
owned by any person, such person shall be deemed to beneficially own
any Common Shares issuable upon the exercise, exchange or conversion
of any options, warrants or other securities beneficially owned by
such person; provided, however, that such Common Shares issuable upon
such exercise shall not be deemed outstanding for the purpose of
calculating the percentage of Common Shares that are beneficially
owned by any other person. Notwithstanding the foregoing, no person
shall be deemed a "20% Stockholder" until such person becomes the
beneficial owner of a percentage of the then outstanding Common Shares
that is at least 1% more than the percentage of the outstanding
Common Shares beneficially owned by such person on July 26, 1996.
In addition, if, after July 26, 1996, any person becomes the beneficial
owner of at least 20% of the then outstanding Common Shares as a result
of any increase in the number of Common Shares issuable upon the
exercise, exchange or conversion of outstanding securities, or
any decrease in the number of outstanding Common Shares resulting
from any stock repurchase plan or self tender offer of the Company,
then such person shall not be deemed a "20% Stockholder" until
such person thereafter
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acquires beneficial ownership of, in the aggregate, a number of additional
Common Shares equal to 1% or more of the then outstanding Common Shares.
Upon the close of business on the Distribution Date,
the Rights shall separate from the Common Shares, Right
certificates shall be issued and the Rights shall become
exercisable to purchase Preferred Shares as described in Section
5 below.
3. Issuance of Right Certificates
As soon as practicable following the Distribution Date,
separate certificates representing only Rights shall be mailed to
the holders of record of Common Shares as of the close of
business on the Distribution Date, and such separate Right
certificates alone shall represent such Rights from and after the
Distribution Date.
4. Expiration of Rights
The Rights shall expire on July 26, 2006 unless earlier
redeemed or exchanged, unless the Distribution Date has
previously occurred and the Rights have separated from the Common
Shares, in which case the Rights will remain outstanding for ten
years.
5. Exercise of Rights
Unless the Rights have expired or been redeemed or
exchanged, they may be exercised, at the option of the holders,
pursuant to paragraphs (a), (b) or (c) below. No Right may be
exercised more than once or pursuant to more than one of such
paragraphs. From and after the first event of the type described
in paragraphs (b) or (c) below, each Right that is beneficially
owned by a 20% Stockholder or that was attached to a Common Share
that is subject to an option beneficially owned by a 20%
Stockholder shall be void.
(a) Right to Purchase Preferred Shares. From and
after the close of business on the Distribution Date, each
Right (other than a Right that has become void) shall be
exercisable to purchase one one-hundredth of a share of
Series A Junior Participating Cumulative Preferred Stock,
par value $.01 per share, of the Company (the "Preferred
Shares"), at an exercise price of $40 (forty dollars) (the
"Exercise Price"). Prior to the Distribution Date, the
Company may substitute for all or any portion of the
Preferred Shares that would otherwise be issuable upon
exercise of the Rights, cash, assets or other securities
having the same aggregate value as such Preferred Shares.
The Preferred Shares are nonredeemable and, unless otherwise
provided in connection with the creation of a subsequent
series of preferred stock, are subordinate to any other
series of the Company's preferred stock, whether issued
before or after the issuance of the Preferred Shares. The
Preferred Shares may not be issued except upon exercise of
Rights. The holder of a Preferred Share is entitled to
receive when, as and if declared, the greater of (i) cash
and non-cash dividends in an amount equal to 100 times the
dividends declared on each Common Share or (ii) a
preferential annual dividend of $1.00 per Preferred Share
($.01 per one one-hundredth of a Preferred Share). In the
event of liquidation, the holders of Preferred Shares shall
be entitled to receive a liquidation payment in an amount
equal to the greater of (1) $1.00 per Preferred Share ($.01
per one one-hundredth of a Preferred Share), plus all
accrued and unpaid dividends and distributions on the
Preferred Shares, or (2) an amount equal to 100 times the
aggregate amount to be distributed per Common Share. Each
Preferred Share has 100 votes, voting together with the
Common Shares. In the event of any merger, consolidation or
other transaction in which Common Shares are exchanged, the
holder of a Preferred Share shall be entitled to receive 100
times the amount received per Common Share. The rights of
the Preferred Shares as to dividends, voting and liquidation
preferences are protected by antidilution provisions. It is
anticipated that the value of one one-hundredth of a Preferred
Share should approximate the value of one Common Share.
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(b) Right to Purchase Common Shares of the Company.
From and after the close of business on the tenth business
day following the 20% Ownership Date, each Right (other
than a Right that has become void) shall be exercisable
to purchase, at the Exercise Price (initially $40),
Common Shares with a market value equal to two times the
Exercise Price. If the Company does not have sufficient
Common Shares available for all Rights to be exercised,
the Company shall substitute for all or any portion of the
Common Shares that would otherwise be issuable upon the exercise
of the Rights, cash, assets or other securities having the same
aggregate value as such Common Shares.
(c) Right to Purchase Common Stock of a Successor
Corporation. If, on or after the 20% Ownership Date,
(i) the Company is acquired in a merger or other business
combination in which the Company is not the surviving
corporation, (ii) the Company is the surviving corporation
in a merger or other business combination in which all or
part of the outstanding Common Shares are changed into or
exchanged for stock or assets of another person or (iii) 50%
or more of the Company's consolidated assets or earning
power are sold (other than in transactions in the ordinary
course of business), then each Right (other than a Right
that has become void) shall thereafter be exercisable to
purchase, at the Exercise Price (initially $40), shares of
common stock of the surviving corporation or purchaser,
respectively, with an aggregate market value equal to two
times the Exercise Price.
6. Adjustments to Prevent Dilution
The Exercise Price, the number of outstanding Rights
and the number of Preferred Shares or Common Shares issuable upon
exercise of the Rights are subject to adjustment from time to
time as set forth in the Rights Agreement in order to prevent
dilution. With certain exceptions, no adjustment in the Exercise
Price shall be required until cumulative adjustments require an
adjustment of at least 1%.
7. Cash Paid Instead of Issuing Fractional Securities
No fractional securities shall be issued upon exercise
of a Right (other than fractions of Preferred Shares that are
integral multiples of one one-hundredth of a Preferred Share and
that may, at the election of the Company, be evidenced by
depositary receipts) and in lieu thereof, an adjustment in cash
shall be made based on the market price of such securities on the
last trading date prior to the date of exercise.
8. Redemption
At any time prior to the earlier of (a) the tenth
business day (or such later day as shall be designated by the
Board of Directors) following the date of the commencement of, or
the announcement of an intention to make, a tender offer or
exchange offer, the consummation of which would cause any person
to become a 20% Stockholder, (b) the tenth business day after the
20% Ownership Date or (c) the first event of the type giving rise
to exercise rights under Section 5(c) above, the Board of Directors
may, at its option, direct the Company to redeem the Rights in whole,
but not in part, at a price of $.001 per Right (the "Redemption Price"),
and the Company shall so redeem the Rights. Immediately upon
such action by the Board of Directors (the date of such action is
the "Redemption Date"), the right to exercise Rights shall
terminate and the only right of the holders of Rights thereafter
shall be to receive the Redemption Price.
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9. Exchange
At any time after the 20% Ownership Date and prior to
the first date thereafter upon which a 20% Stockholder shall
be the beneficial owner of 50% or more of the outstanding
Common Shares, the Board of Directors may, at its option,
direct the Company to exchange all, but not less than all,
of the then outstanding Rights for Common Shares at an exchange ratio per
Right equal to that number of Common Shares which, as of the date
of the Board of Directors' action, has a current market price
equal to the difference between the Exercise Price and the
current market price of the shares that would otherwise be
issuable upon exercise of a Right on such date (the "Exchange
Ratio"), and the Company shall so exchange the Rights.
Immediately upon such action by the Board of Directors, the right
to exercise Rights shall terminate and the only right of the
holders of Rights thereafter shall be to receive a number of
Common Shares equal to the Exchange Ratio.
10. No Stockholder Rights Prior to Exercise
Until a Right is exercised, the holder thereof, as
such, shall have no rights as a stockholder of the Company (other
than rights resulting from such holder's ownership of Common
Shares), including, without limitation, the right to vote or to
receive dividends.
11. Amendment of Rights Agreement
The Board of Directors may, from time to time, without
the approval of any holder of Rights, direct the Company and the
Rights Agent to supplement or amend any provision of the Rights
Agreement in any manner, whether or not such supplement or
amendment is adverse to any holder of Rights, and the Company and
the Rights Agent shall so supplement or amend such provision;
provided, however, that from and after the earliest of (a) the
tenth business day (or such later day as shall be designated by
the Board of Directors) following the date of the commencement
of, or the announcement of an intention to make, a tender offer
or exchange offer, the consummation of which would cause any
person to become a 20% Stockholder, (b) the 20% Ownership Date,
(c) the first event of the type giving rise to exercise rights
under Section 5(c) above, or (d) the Redemption Date, the
Rights Agreement shall not be supplemented or amended in any
manner that would materially and adversely affect any holder of
outstanding Rights other than a 20% Stockholder; provided, further,
that from and after the first date upon which there shall exist a
20% Stockholder, the Rights Agreement shall not be supplemented or
amended in any manner without the approval of a majority of the
Company's directors who were directors prior to such date.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
Attached hereto as exhibits and incorporated herein by
reference are the following: (1) the Bylaws of the Company, as
amended on July 26, 1996; (2) the Rights Agreement dated as of
July 26, 1996 by and between the Company and Wells Fargo Bank, N.
A., as Rights Agent, which includes as Exhibit A thereto the form
of the Certificate of Designations of Series A Junior
Participating Cummulative Preferred Stock, as Exhibit B thereto
the form of Rights Certificate and as Exhibit C thereto, the
Summary of the Rights; (3) a Press Release dated July 26, 1996;
and (4) a form of Letter to Shareholders dated August __, 1996.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed by on its behalf by the undersigned, thereto duly
authorized.
FOODMAKER, INC.
Dated: July 31, 1996
By WILLIAM E. RULON
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William E. Rulon
Senior Vice President and Secretary
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EXHIBIT INDEX
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Exhibit No.
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3.1 Bylaws of the Company, as amended on July 26, 1996.
4.1 Rights Agreement dated as of July 26, 1996 by
and between the Company and Wells Fargo Bank,
N. A., as Rights Agent, which includes as
Exhibit A thereto the form of the Certificate
of Designations of Series A Junior
Participating Cummulative Preferred Stock, as
Exhibit B thereto the form of Right
Certificate, and, as Exhibit C thereto, the
Summary of the Rights.
20.1 A Press Release dated July 29, 1996.
20.2 A form of Letter to Shareholders dated August __, 1996.
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