As filed with the Securities and Exchange Commission on September 29, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------
U.S. FRANCHISE SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 58-2190911
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
----------------
13 Corporate Square, Suite 250
Atlanta, Georgia 30326
(404) 321-4045
(Address of Principal Executive Offices) (Zip Code)
U.S. FRANCHISE SYSTEMS, INC. AMENDED AND RESTATED
1996 STOCK OPTION PLAN
U.S. FRANCHISE SYSTEMS, INC. 1996
STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
(Full titles of the plans)
Michael A. Leven
Chairman, President and Chief Executive Officer
U.S. Franchise Systems, Inc.
13 Corporate Square
Atlanta, Georgia 30329
(Name and address of agent for service)
(404) 321-4045
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================== ============ ========================= ======================== ================
Title of Each Class of Amount to be Proposed Maximum Offering Proposed Maximum Amount of
Securities to be Registered Registered Price Per Share Aggregate Offering Price Registration Fee
- --------------------------- ------------ ------------------------- ------------------------ ----------------
<S> <C> <C> <C> <C>
Class A Common Stock,
par value $0.01 per share 266,200 $ 7,625(1) $2,029,775(1) $ 615.08
- --------------------------- ------------ ------------------------- ------------------------ ----------------
Class A Common Stock,
par value $0.01 per share 135,600(2) $ 13.50 $1,830,600 $ 554.73
- --------------------------- ------------ ------------------------- ------------------------ ----------------
Class A Common Stock,
par value $0.01 per share 800(3) $ 10.50 $ 8,400 $ 2.55
- --------------------------- ------------ ------------------------- ------------------------ ----------------
Class A Common Stock,
par value $0.01 per share 500(4) $ 10.12 $ 5,060 $ 1.53
- --------------------------- ------------ ------------------------- ------------------------ ----------------
Class A Common Stock,
par value $0.01 per share 4,700(5) $ 9.88 $ 46,436 $ 14.07
- --------------------------- ------------ ------------------------- ------------------------ ----------------
</TABLE>
<PAGE>
2
<TABLE>
<CAPTION>
=========================== ============ ========================= ======================== ================
Title of Each Class of Amount to be Proposed Maximum Offering Proposed Maximum Amount of
Securities to be Registered Registered Price Per Share Aggregate Offering Price Registration Fee
- --------------------------- ------------ ------------------------- ------------------------ ----------------
<S> <C> <C> <C> <C>
Class A Common Stock,
par value $0.01 per share 25,000(6) $ 9.63 $ 240,750 $ 72.95
- --------------------------- ------------ ------------------------- ------------------------ ----------------
Class A Common Stock,
par value $0.01 per share 300(7) $ 9.50 $ 2,850 $ 0.86
- --------------------------- ------------ ------------------------- ------------------------ ----------------
Class A Common Stock,
par value $0.01 per share 7,600(8) $ 9.25 $ 70,300 $ 21.30
- --------------------------- ------------ ------------------------- ------------------------ ----------------
Class A Common Stock,
par value $0.01 per share 5,100(9) $ 9.00 $ 45,900 $ 13.91
- --------------------------- ------------ ------------------------- ------------------------ ----------------
Class A Common Stock,
par value $0.01 per share 4,200(10) $ 7.00 $ 29,400 $ 8.91
- --------------------------- ------------ ------------------------- ------------------------ ----------------
Total 450,000(11) $ 1,305.89
=========================== ============ ========================= ======================== ================
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee in
accordance with Rule 457(c) and 457(h) under the Securities Act of 1933,
as amended (the "Securities Act"). The Proposed Maximum Offering Price was
determined by averaging the high and low prices of the Class A Common
Stock, $.01 per share par value ("Class A Common Stock"), of U.S.
Franchise Systems, Inc. ("USFS") as reported by the NASDAQ National Market
System, the automated quotation system of the National Association of
Securities Dealers, Inc. on September 25, 1997.
(2) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$13.50.
(3) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$10.50.
(4) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$10.12.
(5) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$9.88.
(6) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$9.63.
(7) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$9.50.
(8) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$9.25.
(9) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$9.00.
(10) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$7.00.
(11) Consists of 325,000 shares of Class A Common Stock to be issued to certain
employees, consultants, advisors and other persons whose skills would be
an asset to U.S. Franchise Systems, Inc. or any of its subsidiaries upon
the exercise by such persons of options granted to them pursuant to the
U.S. Franchise Systems, Inc. 1996 Stock Option Plan and 125,000 shares of
Class A Common Stock to be issued to certain non-employee directors of
U.S. Franchise Systems, Inc. upon the exercise by such Directors of
options granted to them pursuant to the U.S. Franchise Systems, Inc. 1996
Stock Option Plan for Non-Employee Directors.
================================================================================
<PAGE>
EXPLANATORY NOTE
The Section 10(a) prospectuses being delivered by U.S. Franchise
Systems, Inc. (the "Company") to participants in the U.S. Franchise Systems,
Inc. Amended and Restated 1996 Stock Option Plan (the "Option Plan") and the
U.S. Franchise Systems, Inc. 1996 Stock Option Plan for Non-Employee Directors
(the "Directors Plan") as required by Rule 428 under the Securities Act of 1933,
as amended (the "Securities Act"), have been prepared in accordance with the
requirements of Form S-8 and relate to shares of Class A Common Stock, par value
$0.01 per share, of the Company (the "Class A Common Stock") which have been
reserved for issuance pursuant to the Option Plan and the Directors Plan. The
information regarding the Option Plan and the Directors Plan required in the
Section 10(a) prospectuses is included in documents being maintained and
delivered by the Company as required by Rule 428 under the Securities Act. The
Company shall provide to participants in the Option Plan and the Directors Plan
a written statement advising them of the availability without charge, upon
written or oral request, of documents incorporated by reference herein, as is
required by Item 2 of Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by U.S. Franchise Systems, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996 (File No. 0-28908)
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997 (File No. 0-28908).
3. The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997 (File No. 0-28908).
4. The description of the Company's Class A Common Stock, par value
$0.01 per share, contained in the Company's Registration Statement on Form 8-A,
dated October 24, 1996, including any amendment or report filed for the purpose
of updating such description (File No. 0-28908).
All other documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Act of 1934, as amended, subsequent to the
date of this registration statement and prior to the filing of a post-effective
amendment which indicates that all securities registered 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.
<PAGE>
2
Item 4. DESCRIPTION OF SECURITIES
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145(a) of the General Corporation Law of the State of
Delaware provides that a Delaware corporation may indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding 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 corporation, and, with respect to any
criminal action or proceeding, had no cause to believe his conduct was unlawful.
Section 145(b) provides that a Delaware corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted under similar standards, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the court in which such action or suit was brought shall
determine that despite the adjudication of liability, such person is fairly and
reasonably entitled to be indemnified for such expenses which the court shall
deem proper.
Section 145 further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue, or matter therein, he shall be indemnified against expenses
actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
corporation may purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against him or
incurred by him in any such capacity or arising out of his status as such
whether or not the corporation would have the power to indemnify him against
such liabilities under such Section 145.
Section 102(b)(7) of the General Corporation Law provides that a
corporation in its original certificate of incorporation or an amendment thereto
validly approved by stockholders may eliminate or limit personal liability of
the members of its board of directors or governing body for breach of a
director's fiduciary duty. However, no such provision may eliminate or limit the
liability of a director for breaching his duty
<PAGE>
3
of loyalty, failing to act in good faith, engaging in intentional misconduct or
knowingly violating a law, paying a dividend or approving a stock repurchase
which was illegal, or obtaining an improper personal benefit. A provision of
this type has no effect on the availability of equitable remedies, such as
injunction or rescission, for breach of fiduciary duty. The Company's Charter
contains such a provision.
The Company's Charter further provides that the Company shall
indemnify its officers and directors and, to the extent authorized by the Board
of Directors, employees and agents of the Company, to the fullest extent
permitted by and in the manner permissible under the laws of the State of
Delaware.
In addition, the Company has entered into agreements (the
"Indemnification Agreements") with each of the directors of the Company pursuant
to which the Company has agreed to indemnify each director against claims,
liabilities, damages, expenses, losses, costs, penalties or amounts paid in
settlement (collectively, "Losses") incurred by such director and arising out of
his capacity as a director, officer, employee and/or agent of the Company to the
maximum extent permitted by applicable law. In addition, each director shall be
entitled to an advance of expenses to the maximum extent authorized or permitted
by law to meet the obligations indemnified against. The Indemnification
Agreements also obligate the Company to purchase and maintain insurance for the
benefit and on behalf of each of its directors insuring such director in or
arising out of his capacity as a director, officer, employee and/or agent of the
Company.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
Exhibits
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4.1 -- Amended Restated Certificate of Incorporation of the Company, as
amended (incorporated by reference from the Company's Registration
Statement on Form S-1 (Registration No. 333-11427)).
4.2 -- Amended and Restated By-laws of the Company (incorporated by
reference from the Company's Registration Statement on Form S-1
(Registration No. 333-11427)).
5.1 -- Opinion of Paul, Weiss, Rifkind, Wharton & Garrison, counsel to the
Company, regarding the legality of the Class A Common Stock being
registered.
23.1 -- Consent of Deloitte & Touche LLP.
23.2 -- Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in
Exhibit 5).
24 -- Power of Attorney (included on signature page).
<PAGE>
4
Item 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes: (i) 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 this
registration statement or any material change to such information in this
registration statement; (ii) 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; and (iii) 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, as amended, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended, that is incorporated
by reference in this 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, as amended, may be permitted to directors, officers and
controlling persons of the registrant pursuant to the registrant's Certificate
of Incorporation or by-laws, by contract, 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.
<PAGE>
5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Atlanta, State of Georgia, on September 29,
1997.
U.S. FRANCHISE SYSTEMS, INC.
By: /s/ Michael A. Leven
-------------------------
Michael A. Leven
Chairman, President and
Chief Executive Officer
We, the undersigned officers and directors of U.S. Franchise
Systems, Inc. hereby severally constitute Michael A. Leven and Neal K. Aronson
our true and lawful attorneys, and each of them singly, with full power to sign
for us and in our names in the capacities indicated below, any and all
amendments, including post-effective amendments, to this registration statement,
and generally do all such things in our name and behalf in such capacities to
enable U.S. Franchise Systems, Inc. to comply with the applicable provisions of
the Securities Act of 1933, as amended, and all requirements of the Securities
and Exchange Commission, and we hereby ratify and confirm our signatures as they
may be signed by our said attorney to any and all such amendments.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the following persons in
the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Michael A. Leven Chairman, President, Chief Executive September 29, 1997
- --------------------------- Officer and Director (Principal
Michael A. Leven Executive Officer)
/s/ Neal K. Aronson Executive Vice President, Chief September 29, 1997
- --------------------------- Financial Officer and Director
Neal K. Aronson (Principal Financial and Accounting
Officer)
/s/ Irwin Chafetz Director September 29, 1997
- ---------------------------
Irwin Chafetz
/s/ Richard D. Goldstein Director September 29, 1997
- ---------------------------
Richard D. Goldstein
</TABLE>
<PAGE>
6
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Barry Sternlicht Director September 29, 1997
- ---------------------------
Barry Sternlicht
/s/ Dean S. Adler Director September 29, 1997
- ---------------------------
Dean S. Adler
/s/ Jeffrey A. Sonnenfeld Director September 29, 1997
- ---------------------------
Jeffrey A. Sonnenfeld
</TABLE>
<PAGE>
7
INDEX TO EXHIBITS
Exhibits
- --------
4.1 -- Amended Restated Certificate of Incorporation of the Company, as
amended (incorporated by reference from the Company's Registration
Statement on Form S-1 (Registration No. 333-11427)).
4.2 -- Amended and Restated By-laws of the Company (incorporated by
reference from the Company's Registration Statement on Form S-1
(Registration No. 333-11427)).
5 -- Opinion of Paul, Weiss, Rifkind, Wharton & Garrison, counsel to
the Company, regarding the legality of the Class A Common Stock
being registered.
23.1 -- Consent of Deloitte & Touche LLP.
23.2 -- Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in
Exhibit 5).
24 -- Power of Attorney (included on signature page).
Exhibit 5
September 29, 1997
U.S. Franchise Systems, Inc.
13 Corporate Square, Suite 250
Atlanta, Georgia 30329
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-8 (the
"Registration Statement") filed by U.S. Franchise Systems, Inc., a Delaware
corporation (the "Company"), with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended (the "Act"), and the rules
and regulations promulgated thereunder (the "Rules"), which relates to the
325,000 shares (the "Option Shares") of Class A Common Stock, par value $.01 per
share (the "Class A Common Stock"), of the Company to be issued pursuant to the
U.S. Franchise Systems, Inc. Amended and Restated 1996 Stock Option Plan (the
"Option Plan") and the 125,000 shares (the "Director Shares") of Class A Common
Stock of the
<PAGE>
U.S. Franchise Systems, Inc. 2
Company to be issued pursuant to the 1996 Stock Option Plan for Non-Employee
Directors (the "Director Plan"), we have been requested by the Company to render
this opinion as to the legality of the Option Shares and the Director Shares.
In this connection, we have examined originals or copies certified
or otherwise identified to our satisfaction, of (i) the Registration Statement,
(ii) the Option Plan, (iii) the Director Plan, (iv) the Amended and Restated
Certificate of Incorporation and Amended and Restated By-laws of the Company,
each as amended to date, and (v) all such corporate records of the Company and
all such other documents as we have considered necessary in order to form a
basis for the opinion hereinafter expressed. In our examination of documents, we
have assumed, without independent investigation, the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
photostatic, reproduced or conformed copies of valid existing agreements or
other documents, the authenticity of all such latter documents and the legal
capacity of all individuals who have executed any of the aforesaid documents. As
to certain matters of fact, we have relied on representations, statements or
certificates of officers of the Company and of public authorities.
Based on the foregoing, and subject to the assumptions, exceptions
and qualifications stated herein, we are of the opinion that (i) the Option
Shares have been duly authorized for issuance and that such Option Shares, when
issued and delivered by the Company and paid for in accordance with the terms
and provisions of the
<PAGE>
U.S. Franchise Systems, Inc. 3
Option Plan, will be validly issued, fully paid and nonassessable, and (ii) the
Director Shares have been duly authorized for issuance and that such Director
Shares, when issued and delivered by the Company and paid for in accordance with
the terms and provisions of the Director Plan, will be validly issued, fully
paid and nonassessable.
Our opinion expressed above is limited to the General Corporation
Law of the State of Delaware. Our opinion is also rendered only with respect to
the laws and the rules, regulations and orders thereunder, which are currently
in effect. Please be advised that no member of this firm is admitted to practice
in the State of Delaware. We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement. In giving this consent, we do not hereby
agree that we come within the category of persons whose consent is required by
the Act or the Rules.
Very truly yours,
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of U.S. Franchise Systems, Inc. (the "Company") our report dated
February 21, 1997, on the consolidated financial statements of the Company
included in the Company's Annual Report on Form 10-K for the year ended
December 31, 1996 (File No. 0-28908).
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Atlanta, Georgia
September 25, 1997
