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As filed with the Securities and Exchange Commission on July 31, 1998
Registration No. 333-___________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Cooker Restaurant Corporation
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(Exact Name of Registrant as Specified in Its Charter)
Ohio
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(State or Other Jurisdiction of Incorporation or Organization)
62-1292102
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(I.R.S. Employer Identification No.)
5500 Village Boulevard, West Palm Beach, Florida 33407
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(Address of Principal Executive Offices) (Zip Code)
1996 Employees' Stock Option Plan
1996 Officers' Stock Option Plan
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(Full Title of the Plans)
Robert S. Schwartz, c/o Benesch, Friedlander, Coplan & Aronoff LLP
88 East Broad Street, Suite 900, Columbus, Ohio 43215-3506
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(Name and Address of Agent For Service)
614-223-9300
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Telephone Number, Including Area Code, of Agent For Service.
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title Of Securities Amount To Be Offering Price Aggregate Amount Of
To Be Registered Registered Per Share(1) Offering Price(1) Registration Fee(2)
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Common Shares, no par value, together with
associated rights to purchase Class A Junior 2,000,000 $8.50 $17,000,000 $5,015
Participating Preferred Share, without par value
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(1) Calculated on the basis of paragraphs (h)(1) and (c) of Rule 457 on [ ],
1998.
(2) 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 DOCUMENTS BY REFERENCE.
The documents listed in (a) through (c) below are incorporated by
reference in this registration statement; and all documents subsequently filed
by Cooker Restaurant Corporation, an Ohio corporation (the "Registrant"),
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act"), 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.
(a) The Registrant's latest annual report on Form 10-K (Commission File
No. 0-26520), filed pursuant to Section 13(a) of the Exchange Act.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
Registrant's annual report referred to in (a) above.
(c) The descriptions 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 two Forms 8-A dated April 12, 1994 (Commission File
Number 0-16806) including any amendments or reports filed for the
purpose of updating such descriptions.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the Common Stock of the Registrant issuable under the
Plans will be passed upon for the Registrant by Benesch, Friedlander, Coplan &
Aronoff LLP, Columbus, Ohio.
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 ("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.
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.
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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 or 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 clear 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) Instruments Defining the Rights of Security Holders, Including Indentures.
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).
4.3. Rights Agreement dated as of February 1, 1990 between
the Registrant and National City Bank (incorporated
by reference to Exhibit 1 of the Registrant's Form
8-A filed with the Commission on February 9, 1990;
Commission File No. 0-16806).
4.4. Amendment to Rights Agreement dated as of November 1,
1992 between the Registrant and National City Bank
(incorporated by reference to Exhibit 4.4 of
Registrant's annual report on
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Form 10-K for the fiscal year ended January 3, 1993
(the "1992 Form 10-K"); Commission File No. 0-16806).
4.5. 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).
4.6. Letter dated October 29, 1992 from National City Bank
to the Registrant (incorporated by reference to
Exhibit 4.6 to the 1992 Form 10-K; Commission File
No. 0-16806).
4.7. See Section 7.4 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 (the "1995 Form
10-K"); Commission File No. 0-16806 ).
4.8. 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).
(5) Opinion re Legality.
5.1. Opinion of Benesch, Friedlander, Coplan & Aronoff LLP
as to the validity of the Common Stock being
registered hereunder.
(23) Consents of Experts and Counsel.
23.1. Consent of KPMG Peat Marwick LLP.
23.2. Consent of Benesch, Friedlander, Coplan & Aronoff LLP
is set forth as part of Exhibit 5.1 above.
(24) Powers of Attorney.
24.1. Powers of Attorney.
24.2. Certified copy of resolution of Registrant's Board of
Directors authorizing officers and directors signing
on behalf of the Registrant to sign pursuant to a
power of attorney.
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;
(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 aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
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may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective 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)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference 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.
(b) 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 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.
(h) 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
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 West Palm Beach, State of Florida, on this 14th day
of July, 1998.
COOKER RESTAURANT CORPORATION
(Registrant)
By: /s/ G. Arthur Seelbinder
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G. Arthur Seelbinder
Chairman of the Board, Chief Executive Officer and
Director (principal executive officer)
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 July 14, 1998.
Signature Title
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/s/ G. Arthur Seelbinder Chairman of the Board, Chief Executive
- ------------------------------- Officer and Director
G. Arthur Seelbinder (principal executive officer)
/s/ Phillip L. Pritchard* President, Chief Operating Officer and
- ------------------------------- Director
Phillip L. Pritchard
/s/ Glenn W. Cockburn* Senior Vice President - Operations and
- ------------------------------- Director
Glenn W. Cockburn
/s/ Mark W. Mikosz* Vice President - Chief Financial Officer
- ------------------------------- (principal financial and accounting
Mark W. Mikosz officer)
/s/ Robin V. Holderman* Director
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Robin V. Holderman
/s/ David T. Kollat* Director
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David T. Kollat
/s/ David L. Hobson* Director
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David L. Hobson
/s/ Henry R. Hillenmeyer* Director
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Henry R. Hillenmeyer
/s/ William Lehr Jackson* Director
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William Lehr Jackson
/s/ Harvey Palash* Director
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Harvey Palash
*G. Arthur Seelbinder, by signing his name hereto, does sign this document on
behalf of the person indicated above pursuant to a Power of Attorney duly
executed by such person.
By: /s/ G. Arthur Seelbinder
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G. Arthur Seelbinder, Attorney-in-Fact
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EXHIBIT INDEX
PAGE NUMBER IN
SEQUENTIALLY
NUMBERED COPY
4.1 See Articles FOURTH, FIFTH and SIXTH of the Amended and Restated Articles of *
Incorporation of the Registrant.
4.2 See Articles One, Four, Seven and Eight of the Amended and Restated Code of *
Regulations of the Registrant.
4.3 Rights Agreement dated as of February 1, 1990 between the Registrant and National *
City Bank.
4.4 Amendment to Rights Agreement dated as of November 1, 1992 between the Registrant *
and National City Bank.
4.5 Letter dated October 29, 1992 from the Registrant to First Union National Bank of North *
Carolina.
4.6 Letter dated October 29, 1992 from National City Bank to the Registrant. *
4.7 See Section 7.4 of the Amended and Restated Loan Agreement dated December 22, *
1995 between Registrant and First Union National Bank of Tennessee.
4.8 Indenture dated as of October 28, 1992 between Registrant and First Union National *
Bank of North Carolina, as Trustee.
5.1 Opinion of Benesch, Friedlander, Coplan & Aronoff LLP as to the validity of the 8
Common Stock being registered hereunder.
23.1 Consent of KPMG Peat Marwick LLP. 10
23.2 Consent of Benesch, Friedlander, Coplan & Aronoff LLP is set forth as part of Exhibit
5.1 above.
24.1 Powers of Attorney. 11
24.2 Certified copy of resolution of Registrant's Board of Directors authorizing officers and 20
directors signing on behalf of the Registrant to sign pursuant to a power of attorney.
* Incorporated by reference.