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As filed with the Securities and Exchange Commission on April 4, 2001
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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COOKER RESTAURANT CORPORATION
(Exact name of registrant as specified in its charter)
Ohio
(State of other jurisdiction of incorporation or organization)
62-1292102
(IRS Employer identification number)
5500 Village Boulevard
West Palm Beach, Florida 33407
(Address of principal executive offices, including zip code)
2001 RESTRICTED STOCK PLAN
(Full title of plan)
John W. Titus
Boult, Cummings, Conners & Berry, PLC
414 Union Street
Suite 1600
P.O. Box 198062
Nashville, TN 37219
(Name and address of agent for service of process)
(615) 252-2341
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
==============================================================================================================================
Proposed
Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Price Registration Fee
To Be Registered Registered (1) per Share(2) (2) (3)
- ------------------------------------------------------------------------------------------------------------------------------
Common Stock, no par value,
together with associated rights
to purchase Class A Junior
Participating Preferred Shares,
without par value 659,699 $ 1.21875 $ 804,008.16 $ 201.00
==============================================================================================================================
(1) Plus an indeterminable number of additional shares as may become
issuable as a result of any antidilution provisions of the Plan.
(2) Estimated solely for the purpose of determining the registration fee.
Calculated on the basis of paragraphs (h)(1) and (c) of Rule 457 on
March 30, 2001.
(3) The registration fee was calculated on the basis of Section 6(b) of the
Securities Act of 1933.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by Cooker Restaurant Corporation, an Ohio
corporation (the "Company" or the "Registrant") with the Commission are
incorporated herein by reference and made a part hereof:
(a) The Registrant's latest annual report on Form 10-K (Commission
file number 001-13044) for the fiscal year ended December 31,
2000, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934 (the "Exchange Act");
(b) The description of the Registrant's common shares, without par
value, together with associated rights to purchase Class A
Junior Participating Preferred Shares, without par value,
contained in the Registrant's Form 8-A dated January 11, 2000,
as such description may be amended or updated.
All documents filed by the Registrant pursuant to Sections 13, 14 and
15(d) of the Exchange Act subsequent to the date of this Registration Statement
and prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all of the securities offered have been sold or
which deregisters all of such shares then 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. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modified or supersedes such statement. Any such 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
Not applicable
Item 5. Interest of Named Experts and Counsel
The validity of the common stock of the Registrant issuable under the
Plan will be passed upon for the Registrant by Boult, Cummings, Conners & Berry,
PLC.
Item 6. Indemnification of Directors and Officers
Pursuant to Section 1701.13(E)(1) of the Ohio Revised Code (the "ORC"),
the Registrant may, and pursuant to Section 5.01 of the Registrant's Amended and
Restated Code of Regulations (the "Registrant's Code") the Registrant shall,
indemnify any director or officer against expenses (including attorney's fees)
and other liabilities actually and reasonably incurred by him as a result of any
suit brought against him in his capacity as a director or officer, if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Registrant, and, with respect to any criminal action
or proceeding, if he had no reasonable cause to believe his conduct was
unlawful.
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Pursuant to Section 1701.13 (E) (2) of the ORC the Registrant may, and
pursuant to Section 5.02 of the Registrant's Code the Registrant shall,
indemnify any director or officer against expenses (including attorney's fees)
incurred by him in connection with a derivative suit brought against him in his
capacity as a director or officer, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Registrant. This indemnification is not available if such director or officer is
adjudged to have committed an act of negligence or misconduct in the performance
of his duty to the Registrant; nor is it available with regard to suits brought
solely to assert liability under Section 1701.95 of the ORC for approving
unlawful loans, dividends or distributions of assets.
Section 5.02 of the Registrant's Code provides that a director shall
not be deemed to have committed an act of negligence or misconduct in the
performance of his duty to the Registrant unless he has been adjudged to be
liable to the Registrant for damages under Section 1701.59 (D) of the ORC.
Section 1701.59 (D) of the ORC says a director is liable for actions he takes as
a director only if it is proven by clear and convincing evidence that those
actions were undertaken with deliberate intent to cause injury to the
corporation or with reckless disregard for the best interests of the
corporation.
Pursuant to Section 1701.13 (E)(3) of the ORC and Section 5.03 of the
Registrant's Code, to the extent any director or officer has been successful on
the merits of otherwise in defense of any suit brought against him in his
capacity as a director or officer, he shall be indemnified by the Registrant
against expenses (including attorney's fees) actually and reasonably incurred by
him in connection with such suit.
Pursuant to Section 1701.13 (E) (5) of the ORC, expenses (including
attorney's fees) incurred by a director in defending a suit, other than a suit
brought solely to assert liability for approving an unlawful loan, dividend or
distribution of assets, must be paid by the Registrant as they are incurred,
before the end of the suit, upon receipt of an undertaking by the director to
repay such amount if it is proven by blear and convincing evidence that his
actions were undertaken with reckless disregard for the best interests of the
Registrant and to reasonably cooperate with the Registrant concerning the suit.
Pursuant to Section 5.05 of the Registrant's Code, expenses (including
attorney's fees) incurred by an officer in defending a suit brought against him
in his capacity as an officer of the Registrant may be paid by the Registrant in
advance of the final disposition of the suit as authorized by the Registrant's
Board of Directors in the specific case upon receipt of an undertaking by the
officer to repay such amount, unless it is ultimately determined that he is
entitled to be indemnified by the Registrant as authorized by the Registrant's
Code.
Item 7. Exemption from Registration Claimed
Not applicable
Item 8. Exhibits
The following exhibits are filed as part of this Registration
Statement:
4.1 See Articles FOURTH, FIFTH and SIXTH of the Amended and
Restated Articles of Incorporation of the Registrant
(incorporated by reference to Exhibit 28.2 of Registrant's
quarterly report on Form 10-Q for the quarterly period ended
March 29, 1992; Commission File No. 0-16806)
4.2 See Articles One, Four, Seven and Eight of the Amended and
Restated Code of Regulations of the Registrant (incorporated
by reference to Exhibit 4.5 of the Registrant's quarterly
report on Form 10-Q for the fiscal quarter ended April 1.
1990; Commission File No. 0-16806)
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4.3 Rights Agreement dated as of January 16, 2000 between the
Registrant and First Union National Bank (incorporated by
reference to Exhibit 2 of the Registrant's Form 8-A filed with
the Commission on January 12, 2000; Commission File No.
1-13044)
4.4 Letter dated October 29, 1992 from the Registrant to First
Union National Bank of North Carolina (incorporated by
reference to Exhibit 4.5 to the 1992 Form 10-K; Commission
File No. 0-16806)
4.5 See Section 7.5 of the Amended and Restated Loan Agreement
dated December 22, 1995 between Registrant and First Union
National Bank of Tennessee (incorporated by reference to
Exhibit 10.4 of the Registrant's annual report on Form 10-K
for the fiscal year ended December 31, 1995; Commission File
No. 0-16806)
4.6 Indenture dated as of October 28, 1992 between Registrant and
First Union National Bank of North Carolina, as Trustee
(incorporated by reference to Exhibit 2.5 of Registrant's Form
8-A filed with the Commission on November 10, 1992; Commission
File Number 0-16806)
4.7 Cooker Restaurant Corporation, 2001 Restricted Stock Plan
5.1 Opinion of Boult, Cummings, Conners & Berry, PLC as to the
validity of the common stock being registered hereunder
23.1 Consent of KPMG LLP
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Boult, Cummings, Conners & Berry PLC is set forth
as part of Exhibit 5.1 above
24.1 Powers of Attorney - included on signature page of
Registration Statement
Item 9. Undertakings
(a) The undersigned 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 (the "Securities Act");
(ii) to reflect in the prospectus any facts or
events arising after the effective date of
this Registration Statement (of the most
recent post-effective amendment hereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in this Registration
Statement;
(iii) to include any material information with
respect to the plan of distribution not
previously disclosed in this Registration
Statement or any material change to such
information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
shall not apply if 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 this registration statement.
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(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) 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 that is incorporated by
reference in this Registration Statement shall be
deemed to be a new registration statement relating to
the securities offered herein 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 may be permitted to
directors, officers and controlling persons of the
Registrant pursuant to the ORC, the Registrant's
Articles of Incorporation, the Registrant's Code of
Regulations or otherwise, the Registrant has been
advised that in the opinion of the 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
payment by the Registrant of expenses incurred or
paid by a 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 its is
against public policy as expressed in the Securities
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
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Nashville, State of Tennessee, on this 30 day
of March, 2001.
COOKER RESTAURANT CORPORATION
(Registrant)
By: /s/ Henry R. Hillenmeyer
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Henry R. Hillenmeyer
Chairman of the Board,
Chief Executive Officer and
Director
(principal executive officer)
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this
Registration Statement and Power of Attorney have been signed below by the
following persons in the capacities and on the dates indicated.
Each person whose signature appears below constitutes and
appoints Henry R. Hillenmeyer and Mark W. Mikosz, and each of them, his or her
true and lawful attorney-in-fact and agents, with full power of substitution to
execute in his or her name and on his or her behalf, and to file any amendments
(including without limitation, post-effective amendments) to this Registration
Statement necessary or advisable in the opinion of any of them to enable the
Company to comply with the Securities Act, and any rules, regulations and
requirements of the Commission thereunder, in connection with the registration
of the additional securities which are the subject of this Registration
Statements.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Henry R. Hillenmeyer Chairman of the Board March 30, 2001
- ------------------------------------ Chief Executive Officer
Henry R. Hillenmeyer Director
(principal executive officer)
/s/ Dan Clay Senior Vice President - March 30, 2001
- ------------------------------------ Operations
Dan Clay Director
/s/ Mark W. Mikosz Vice President - Chief March 30, 2001
- ------------------------------------ Financial Officer
Mark W. Mikosz (principal financial and
accounting officer)
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/s/ Robin V. Holderman Director March 30, 2001
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Robin V. Holderman
/s/ David Kollat Director March 30, 2001
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David T. Kollat
/s/ Shannon LeRoy Director March 30, 2001
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D. Shannon LeRoy
/s/ Harvey M. Palash Director March 30, 2001
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Harvey M. Palash
/s/ Brad Saltz Director March 30, 2001
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Brad Saltz