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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 11, 1994
Registration No. 33-__________
_____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT of 1933
________________________________________
CARL KARCHER ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
CALIFORNIA 95-2415578
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1200 North Anaheim Boulevard
Anaheim, California 92801
(Address of principal executive offices) (Zip Code)
1993 EMPLOYEE STOCK INCENTIVE PLAN and
DONALD E. DOYLE RESTRICTED STOCK GRANT
(Full title of the plan)
DONALD E. DOYLE
Carl Karcher Enterprises, Inc.
1200 North Anaheim Boulevard
Anaheim, California 92801
(Name and address of agent for service)
(714) 774-5796
(Telephone number, including area code, of agent for service)
With a copy to:
Richard A. Strong, Esq.
Gibson, Dunn & Crutcher
2029 Century Park East
Los Angeles, California 90067
(310) 552-8500
CALCULATION OF REGISTRATION FEE
================================================================================================================================
Proposed Proposed
Title of maximum maximum Amount of
securities Amount offering aggregate registration
to be to be price offering fee
registered registered per share price
- --------------------------------------------------------------------------------------------------------------------------------
Common Stock 1,762,121(1) $11.9375(2) $21,035,320(2) $7,254
================================================================================================================================
This document consists of ___ pages.
Exhibit Index is on page __.
(cover page continues on next page.)
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(1) Based on the registrant's estimate of the number of shares of Common
Stock that will be purchased pursuant to the 1993 Employee Stock
Incentive Plan (the "Plan") and issued pursuant to the Restricted
Stock Agreement dated as of January 6, 1993 by and between the
registrant and Donald E. Doyle (the "Doyle Restricted Stock Grant").
Pursuant to Rule 416(c), there is also being registered such number
of additional shares of Common Stock that may become available for
purchase under the Plan and the Doyle Restricted Stock Grant in
the event of certain changes in the outstanding shares of Common
Stock, including, among other things, reorganizations, mergers,
recapitalizations, restructurings, stock dividends, stock splits,
reverse stock splits and reclassifications.
(2) Estimated in accordance with Rule 457(h) and Rule 457(c) solely for
purposes of calculating the registration fee and based on the average
of the high and low prices of the Common Stock of the Company on the
NASDAQ National Market System on April 5, 1994 of $11.9375.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of Carl Karcher Enterprises, Inc., a
California corporation (the "Company"), previously filed with the Securities
and Exchange Commission are hereby incorporated by reference in the
Registration Statement:
(i) The Company's Annual Report on Form 10-K for the year
ended January 25, 1993 (File No. 0-10316) filed pursuant to Section 13(a) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act");
(ii) The Company's Quarterly Report on Form 10-Q for the
quarter ended May 17, 1993 (File No. 0-10316) filed pursuant to Section 13(a)
of the Exchange Act;
(iii) The Company's Quarterly Report on Form 10-Q for the
quarter ended August 9, 1993 (File No. 0-10316) filed pursuant to Section 13(a)
of the Exchange Act;
(iv) The Company's Quarterly Report on Form 10-Q for the
quarter ended November 1, 1993 (File No. 0-10316) filed pursuant to Section
13(a) of the Exchange Act;
(v) The Company's Current Report on Form 8-K (File No.
0-10316) dated September 7, 1993 filed pursant to Section 13 of the Exchange
Act; and
(vi) The description of the Company's Common Stock set
forth under the heading "Description of Registrant's Securities" in the
Company's Registration Statement on Form 8-A (File No. 0-10316) filed with the
Commission pursuant to the Exchange Act on April 12, 1982, together with any
amendment or report filed with the Securities and Exchange Commission for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates that
all securities offered hereunder have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to provisions of the California General Corporation
Law, the Company's Articles of Incorporation include a provision (the
"Provision") which eliminates the personal liability of its directors to the
Company and its shareholders for monetary damages to the fullest extent
permissible under California law. The Provision has no effect on a director's
liability (i) for acts or omissions that involve intentional misconduct or a
knowing and culpable violation of law, (ii) for acts or omissions that a
director believes to be contrary to the best interests of the Company or its
shareholders or that involve the absence of good faith on the part of the
director,
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(iii) for any transaction from which a director derived an improper personal
benefit, (iv) for acts or omissions that show a reckless disregard for the
director's duty to the Company or its shareholders in circumstances in which
the director was aware, or should have been aware, in the ordinary course of
performing a director's duties, of a risk of a serious injury to the Company or
its shareholders, (v) for acts or omissions that constitute an unexcused
pattern of inattention that amounts to an abdication of the director's duty to
the Company or its shareholders, (vi) under Section 310 of the California
General Corporation Law (concerning contracts or transactions between the
corporation and a director) or (vii) under Section 316 of the California
General Corporation Law (directors' liability for improper dividends, loans and
guarantees). The Provision does not eliminate liability of an officer for any
act or omission as an officer, notwithstanding that the officer is also a
director or that his or her actions, if negligent or improper, have been
ratified by the Board of Directors. Further, the Provision has no effect on
claims arising under federal or state securities laws and does not affect the
availability of injunctions and other equitable remedies available to the
Company's shareholders for any violation of a director's fiduciary duty to the
Company or its shareholders. Although the validity and scope of the
legislation underlying the Provision have not yet been interpreted to any
significant extent by the California courts, the Provision may relieve
directors of monetary liability to the Company for grossly negligent conduct,
including conduct in situations involving attempted takeovers of the Company.
The Company's Articles of Incorporation also include a section
authorizing the Company to indemnify its officers, directors and other agents
through bylaw provisions, agreements, vote of shareholders or disinterested
directors or otherwise, to the full extent permitted by law. The Company's
Bylaws permit the Company to indemnify its directors, officers, employees and
other agents to the fullest extent permitted by law. The Bylaws and Articles
of Incorporation expressly authorize the use of indemnity agreements. The
Company's Bylaws and Articles of Incorporation may require the Company, among
other things, to indemnify such directors, officers, employees and other agents
against certain liabilities that may arise by reason of their status or service
as directors, officers, employees or agents (other than liabilities from
willful misconduct of a culpable nature), to advance expenses to them as they
are incurred, provided that they undertake to repay the amount advanced if it
is ultimately determined by a court that they are not entitled to
indemnification, and to obtain directors' and officers' insurance.
Section 317 of the California General Corporation Law makes
provisions for the indemnification of officers, directors and other corporate
agents in terms sufficiently broad to indemnify such persons, under certain
circumstances, for liabilities (including reimbursement of expenses incurred)
arising under the Securities Act of 1933. The Company has entered into
indemnification agreements with all of the directors and executive officers of
the Company and its subsidiaries whereby the Company will indemnify each such
person (an "Indemnitee") against certain claims arising out of certain past,
present or future acts, omissions or breaches of duty committed by an
Indemnitee while serving in his or her employment capacity. Such
indemnification does not apply to acts or omissions which are knowingly
fraudulent, deliberately dishonest or arise from willful misconduct.
Indemnification will only be provided to the extent that the Indemnitee has not
already received payment in respect of such claim from the Company or from an
insurance company.
The Company also maintains a liability insurance policy that
insures directors and officers against certain liabilities incurred by them in
their capacities as such, or arising out of their status as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 Articles of Incorporation of the Company, filed as Exhibit
3-1 to the Registration Statement on Form S-1 (File
No. 2-73695).
4.2 Bylaws of the Company, as amended, filed as Exhibit 3-2 to
the Registration Statement on Form S-1 (File No. 2-73695).
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5.1 Opinion of Gibson, Dunn & Crutcher.
24.1 Consent of Independent Accountants.
24.2 Consent of Gibson, Dunn & Crutcher (included in Exhibit 5.1).
25.1 Power of Attorney (included on Signature Pages).
99.1 Form of 1993 Employee Stock Incentive Plan (the "Plan").
99.2 Form of Incentive Stock Option Agreement.
99.3 Form of Non-Qualified Stock Option Agreement.
99.4 Form of Directors' Non-Qualified Stock Option Agreement.
99.5 Restricted Stock Agreement dated as of January 6, 1993 by and
between the Company and Donald E. Doyle.
ITEM 9. UNDERTAKINGS.
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 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.
2. That, for the purpose of determining any liability
under the Securities 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.
4. 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 Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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.
5. Insofar as indemnification for liabilities arising
under the Securities Act of 1933 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 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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SIGNATURES AND POWER OF ATTORNEY
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 Anaheim, State of California, on April 11,
1994.
CARL KARCHER ENTERPRISES, INC.
By: /s/ Donald E. Doyle
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Its: President and Chief Executive
-----------------------------
Officer
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KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints Donald E. Doyle, Loren
C. Pannier and Richard C. Celio, each individually as his or her true and
lawful attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities indicated on the dates indicated.
Signature Title Date
/s/ Donald E. Doyle President, Chief Executive Officer and Director April 11, 1994
- ------------------------------ (Principal Executive Officer)
Donald E. Doyle
/s/ William P. Foley II Chairman of the Board April 11, 1994
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William P. Foley II
/s/ Carl N. Karcher Director and Chairman of the Board Emeritus April 11, 1994
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Carl N. Karcher
/s/ Peter Churm Director April 11, 1994
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Peter Churm
/s/ Daniel W. Holden Director April 11, 1994
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Daniel W. Holden
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/s/ Carl L. Karcher Director April 11, 1994
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Carl L. Karcher
/s/ Daniel D. (Ron) Lane Director April 11, 1994
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Daniel D. (Ron) Lane
/s/ Kenneth O. Olsen Director April 11, 1994
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Kenneth O. Olsen
/s/ Elizabeth A. Sanders Director April 11, 1994
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Elizabeth A. Sanders
/s/ Loren C. Pannier Senior Vice President, Chief Financial Officer April 11, 1994
- ------------------------------ (Principal Financial Officer)
Loren C. Pannier
/s/ Laurie A. Ball Vice President, Controller April 11, 1994
- ------------------------------ (Chief Accounting Officer)
Laurie A. Ball
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INDEX TO EXHIBITS
Exhibit Sequentially
Number Description Numbered Page
------- -------------------------------------------------------------- -------------
4.1 Articles of Incorporation of the Company, and amendments
thereto, filed as Exhibit 3-1 to the Registration Statement on
Form S-1 (File No. 2-73695).
4.2 Bylaws of the Company, as amended, filed as Exhibit 3-2 to the
Registration Statement on Form S-1 (File No. 2-73695).
5.1 Opinion of Gibson, Dunn & Crutcher.
24.1 Consent of Independent Accountants.
24.2 Consent of Gibson, Dunn & Crutcher (included in Exhibit 5.1).
25.1 Power of Attorney (included on Signature Pages).
99.1 Form of 1993 Employee Stock Incentive Plan
99.2 Form of Incentive Stock Option Agreement
99.3 Form of Non-Qualified Stock Option Agreement
99.4 Form of Directors' Non-Qualified Stock Option Agreement
99.5 Restricted Stock Agreement dated as of January 6, 1993 by and
between the Company and Donald E. Doyle.