As filed with the Securities and Exchange Commission on March 26, 2002
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
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Checkers Drive-In Restaurants, Inc.
(Exact name of registrant as specified in its charter)
Delaware 58-1654960
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
4300 West Cypress Street, Suite 600
Tampa, Florida 33607
(Address of Principal Executive Office) (Zip Code)
Checkers Drive-In Restaurants, Inc. 2001 Stock Option Plan
Employment Agreement between Checkers Drive-In Restaurants,
Inc. and Daniel J. Dorsch
(Full title of the plan)
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Brian R. Doster, Esq.
Secretary and General Counsel
Checkers Drive-In Restaurants, Inc.
4300 West Cypress Street, Suite 600
Tampa, Florida 33607
(Name and address of agent for service)
(813) 283-7000
(Telephone number, including area code, of agent for service)
Copies of all communications to:
John Giordano, Esq.
Bush, Ross, Gardner, Warren & Rudy, P.A.
220 South Franklin Street
Tampa, Florida 33602
Phone: (813) 204-6403
Fax: (813) 223-9620
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities To be offering price Aggregate registration
to be registered Registered(1) per unit Offering price fee
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Common Stock, par value $0.001 1,500,000 $10.65895(2) $15,988,425(2) $1,470.94
per share reserved under
Checkers Drive-In Restaurants,
Inc. Stock Option Plan
Common Stock, par value $0.001
per share granted to Daniel J. 17,350 $6.34005 $110,000 $10.12
Dorsch pursuant to the
Employment between Checkers
Drive-In Restaurants, Inc. and
Mr. Dorsch
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/(1)/The provisions of Rule 416 under the Securities Act of 1933 shall apply to
this Registration Statement and the number of shares registered on this
Registration Statement shall increase or decrease as a result of stock splits,
stock dividends or similar transactions.
/(2)/Estimated solely for the purpose of calculating the registration fee. The
fee is calculated upon the basis of the average between the high and low sales
prices for shares of common stock of the registrant as reported on the NASDAQ
National Market System on March 25, 2002.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Registrant,
Checkers Drive-In Restaurants, Inc., a Delaware corporation, are incorporated by
reference in this Registration Statement.
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 2001 (including information specifically incorporated by reference
into the Registrant's Form 10-K from the Registrant's definitive Proxy
Statement).
(b) The description of the Common Stock contained in the Registrant's
Registration Statement on Form 8-A, dated October 24, 1991, filed pursuant to
Section 12(g) of the Securities and Exchange Act of 1934.
(c) All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby 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
The Company's Vice President, Secretary and General Counsel, Brian R.
Doster, Esq., is giving an opinion on the legality of the issuance of the shares
of Common Stock being offered hereby.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant is a Delaware corporation. The Registrant's Amended and
Restated Certificate of Incorporation provides that, to the fullest extent
permitted by Delaware law, its directors shall not be liable to the Registrant
or its stockholders for monetary damages for breach of fiduciary duty as a
director. This provision in the Amended and Restated Certificate of
Incorporation does not eliminate the directors' fiduciary duty, and in
appropriate circumstances, equitable remedies such as injunctive or other forms
of non-monetary relief will remain available under Delaware law. In addition,
each director will continue to be subject to liability for breach of the
director's duty of loyalty to the Registrant for acts or omissions not in good
faith or involving intentional misconduct, for knowing violations of law, for
actions leading to improper personal benefit to the director, and for payment of
dividends or approval of stock repurchases or redemptions that are unlawful
under Delaware law. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws.
In addition, the Registrant's Bylaws provide that the Registrant will
indemnify its directors and officers and may indemnify its employees and other
agents to the fullest extent permitted by Delaware law. The Registrant believes
that indemnification under its Bylaws covers at least negligence and gross
negligence by indemnified parties, and permits the Registrant to advance
litigation expenses in the case of stockholder derivative actions or other
actions, against an undertaking by the indemnified party to repay such advances
if it is ultimately determined that the indemnified party is not entitled to
indemnification. The Registrant's Bylaws permit, and its Board of Directors has
authorized, the purchase of liability insurance for the Registrant's officers
and directors.
The Registrant has entered into separate indemnification agreements
with its directors and officers. These agreements require the Registrant, among
other things, to indemnify them against certain liabilities that may arise by
reason of their status or service as directors or officers (other than
liabilities arising from actions not taken in good faith or in a manner the
director or officer believed to be opposed to the best interests of the
Registrant), to advance their expenses incurred as a result of any proceeding
against them as to which they could be indemnified (subject to certain
conditions), and to obtain liability insurance for any director with terms of
insurance no less favorable than those provided to any other director of the
Registrant, and for any officer with terms of insurance no less favorable than
those provided to any other officer of the Registrant. Insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers or persons controlling the Registrant pursuant
to the foregoing provisions, the Registrant has been informed that in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Securities Act of 1933 and is
therefore unenforceable. The Registrant believes that its Amended and Restated
Certificate of Incorporation, Bylaw provisions and indemnification agreements
are necessary to attract and retain qualified persons as directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
4.1 The 2001 Checkers Drive-In Restaurants, Inc. Stock Option Plan as
filed with the Commission as Appendix B in the Registrant's
definitive Proxy Statement dated August 6, 2001 is hereby
incorporated by reference.
4.2 Employment Agreement , dated November 20, 2000, between the
Registrant and Daniel J. Dorsch as filed with the Commission as
Exhibit 10.16 to Form 10-K for the year ended January 1, 2001, is
hereby incorporated by reference.
5.1 Opinion of Brian R. Doster regarding legality of the Common Stock.
23.1 Independent Auditors' Consent of KPMG LLP.
24.1 Powers of Attorney (included on signature page).
ITEM 9. UNDERTAKINGS.
(a) 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 this 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 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) 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 Securities and Exchange Commission by the Registrant pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this 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 herein, 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
and 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 and
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.
(c) 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 (see Item 6) 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 of 1933 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
Securities Act of 1933 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, Checkers Drive-In Restaurants, Inc., a corporation organized and
existing under the laws of the State of Delaware, 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 Tampa,
State of Florida, on March 26, 2002.
Checkers Drive-In Restaurants, Inc.
By: /s/ Daniel J. Dorsch
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Daniel J. Dorsch, Chief Executive
Officer
POWER OF ATTORNEY
KNOWN TO ALL PERSONS BY THESE PRESENTS, we, the undersigned officers and
directors of Checkers Drive-In Restaurants, Inc., hereby severally constitute
and appoint Brian R. Doster, acting as an attorney-in-fact with the full power
of substitution, for him and in his 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 all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorneys-in-fact, or either of their substitute or
substitutes, may 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 and on the dates indicated.
Signatures Title Date
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Chairman of the Board of Directors March 26, 2002
By: /s/ Ronald B. Maggard
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Ronald B. Maggard
Vice Chairman of the Board of Directors March 26, 2002
By: /s/ Peter C. O'Hara
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Peter C. O'Hara
President, Chief Executive Officer and March 26, 2002
By: /s/ Daniel J. Dorsch Director (Principal Executive Officer)
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Daniel J. Dorsch
Chief Financial Officer (Principal Financial March 26, 2002
By: /s/ David G. Koehler and Accounting Officer)
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David G. Koehler
Director March 26, 2002
By: /s/ William P. Foley, II
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William P. Foley, II
Director March 26, 2002
By: /s/ Terry N. Christensen
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Terry N. Christensen
Director March 26, 2002
By: /s/ Clarence V. McKee
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Clarence V. McKee
Director March 26, 2002
By: /s/ Burt Sugarman
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Burt Sugarman
Director March 26, 2002
By: /s/ Willie D. Davis
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Willie D. Davis
Director March 26, 2002
By: /s/ David Gotterer
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David Gotterer
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INDEX OF EXHIBITS
5.1 Opinion of Brian R. Doster regarding legality of the Common Stock.
23.1 Independent Auditors' Consent of KPMG LLP.
24.1 Powers of Attorney (included on signature page).
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