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As filed with the Securities and Exchange Commission on July 24, 1997.
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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PJ AMERICA, INC.
(Exact name of registrant specified in its charter)
<TABLE>
<S> <C>
Delaware 61-1308435
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation of Organization)
</TABLE>
9109 Parkway East
Birmingham, Alabama 35206
(Address of Principal Executive Offices) (Zip Code)
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PJ AMERICA, INC.
NON-EMPLOYEE DIRECTORS 1996 STOCK INCENTIVE PLAN
(Full title of the Plan)
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DOUGLAS S. STEPHENS
President and Chief Executive officer
PJ America, Inc.
9109 Parkway East
Birmingham, Alabama 35206
(205) 836-1212
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed Proposed maximum Amount of
securities to be maximum offering aggregate registration
to be registered registered price per share(1) offering price(1) fee
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<S> <C> <C> <C> <C>
Common Stock,
par value $.01 160,000 shares $18.00 $2,880,000 $872.73
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
This estimate has been calculated in accordance with Rule 457 under the
Securities Act of 1933 and is based on the average of the high and low prices
per share as reported on the National Association of Securities Dealers -
National Market System on July 23, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by PJ America, Inc. ("Registrant") with the
Securities and Exchange Commission (Commission File No. 0-21587) are
incorporated by reference into this Registration Statement:
(a) The Registrant's Prospectus dated July 23, 1996 filed pursuant to
Securities Act Rule 424(b) (Reg. No. 333-30109);
(b) The Registrant's Quarterly Report on Form 10-Q for the period ended
March 30, 1997, filed April 22, 1997;
(c) The Registrant's Current Report on Form 8-K dated June 19, 1997; and
(d) The description of the Registrant's Common Stock as contained in the
Registration Statement on Form 8-A, dated October 18, 1996, filed by the Company
to register the Common Stock under the Securities Exchange Act of 1934, as
amended ("Exchange Act"), and all amendments or reports filed for the purpose of
updating such description prior to the termination of the offering of Common
Stock hereby.
All documents subsequently filed by Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, 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 a part hereof
from the date of filing of such documents. Any statement contained in a document
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
incorporated by reference herein) modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed to constitute a part
hereof except as so modified or superseded.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Common Stock offered hereby has been passed
upon for the Company by Greenebaum Doll & McDonald PLLC, Louisville, Kentucky.
Mr. Fleishman, whose professional service corporation is a member of Greenebaum
Doll & McDonald PLLC, is a director of the Company and beneficially owns 289,930
shares of Common Stock of the Company. A member of the Greenebaum Doll &
McDonald PLLC who participated in the preparation of this Registration Statement
beneficially owns 5,000 shares of the Common Stock of the Company.
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Item 6. Indemnification of Directors and Officers.
A. Elimination of Certain Liability. Pursuant to Article IX of the
Registrant's Certificate of Incorporation ("Article IX"), a director of the
Registrant shall not be personally liable to the Registrant or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability: (i) for any breach of the director's duty of loyalty to the
Registrant or its stockholders; (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (iii) under
Section 174 of the General Corporation Law of the State of Delaware, or (iv) for
any transaction from which the director derived an improper personal benefit. If
the General Corporation Law of the State of Delaware is hereafter amended to
permit further elimination or limitation of the personal liability of directors,
then the liability of a director of the Registrant shall be eliminated or
limited to the fullest extent permitted by the General Corporation Law of the
State of Delaware, as so amended. Any repeal or modification of Section A of
Article IX shall not adversely effect any right or protection of a director of
the Registrant existing at the time of such repeal or modification.
B. Right to Indemnification. Subject to Section C of Article XI of the
Registrant's Certificate of Incorporation, each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that such person, or a
person of whom such person is the legal representative, is or was a director or
officer of the Registrant or is or was serving at the request of the Registrant
as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Registrant to the fullest
extent authorized by the General Corporation Law of the State of Delaware, as
the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Registrant to
provide broader indemnification rights than said law permitted the Registrant to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, excise taxes under the Employee
Retirement Income Security Act of 1974, as in effect from time to time
("ERISA"), penalties and amounts to be paid in settlement) reasonably incurred
or suffered by such person in connection therewith. The Registrant may, by
action of its Board of Directors, provide indemnification to other employees or
agents of the Registrant with the same scope and effect as the indemnification
of directors and officers pursuant to Article IX.
C. Procedure for Indemnification. Any indemnification under Article IX
(unless ordered by a court) shall be made by the Registrant only as authorized
in the specific case upon a determination that indemnification is proper in the
circumstances because the indemnitee has met the applicable standard of conduct
set forth in the General Corporation Law of the State of Delaware, as the same
exists or hereafter may be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Registrant to provide broader
indemnification rights then said law permitted the Registrant to provide prior
to such amendment). Such determination shall be made (i) by the Board of
Directors by a majority vote of a quorum consisting of directors who are not
parties to such action, suit or proceeding (the "Disinterested Directors"); or
(ii) if such a quorum of Disinterested Directors is not obtainable, or, even if
obtainable, a quorum of Disinterested Directors so directs, by independent legal
counsel and a written opinion; or (iii) by the stockholders. The majority of
Disinterested Directors may, as they deem appropriate, elect to have the
Registrant indemnify any other employee, agent or other person acting for or on
behalf of the Registrant.
D. Advances for Expenses. Costs, charges and expenses (including
attorneys' fees) incurred by a director or officer of the Registrant, or such
other person acting on behalf of the Registrant as determined in accordance with
Section C of Article IX, in defending a civil or criminal action, suit or
proceeding shall
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be paid by the Registrant in advance of the final disposition of such action,
suit or proceeding upon receipt of a undertaking by or on behalf of the
director, officer or other person to repay all amounts so advanced in the event
that it shall ultimately be determined that such director, officer or other
person is not entitled to be indemnified by the Registrant as authorized in
Article IX or otherwise.
E. Right of Claimant to Bring Suit. If a claim under Sections B/2 or D/D
of Article IX is not paid in full by the Registrant within 30 days after a
written claim has been received by the Registrant, the claimant may at any time
thereafter bring suit against the Registrant to recover the unpaid amount of the
claim and, if successful in whole or in part, the claimant shall be entitled to
be paid also the expense of prosecuting such claim. It shall be a defense to any
such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Registrant) that the claimant has not met the standard of conduct which make it
permissible under the General Corporation Law of the State of Delaware for the
Registrant to indemnify the claimant for the amount claimed, but the burden of
proving such defense shall be on the Registrant. Neither the failure of the
Registrant (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because the claimant has met the applicable standards of conduct set forth in
the General Corporation Law of the State of Delaware, nor an actual
determination by the Registrant (including its Board of Directors, independent
legal counsel, or its stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
F. Other Rights; Continuation of Right to Indemnification. The
indemnification and advancement of expenses provided by Article IX shall not be
deemed exclusive of any other rights to which a claimant may be entitled under
any law (common or statutory) by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his or her official
capacity and as to any action in another capacity while holding office or while
employed by or acting as agent for the Registrant, and shall inure to the
benefit of the estate, heirs, executors and administrators of such person. All
rights to indemnification under Article IX shall be deemed to be a contract
between the Registrant and each director and officer of the Registrant who
serves or served in such capacity at any time while Article IX is in effect. Any
repeal or modification of Article IX or any repeal or modification of relevant
provisions of the General Corporation Law of the State of Delaware or any other
applicable law shall not in any way diminish any rights to indemnification of
such director, officer or the obligations of the Registrant arising hereunder
with respect to any action, suit or proceeding arising out of, or relating to,
any actions, transactions or facts occurring prior to the final adoption of such
modification or repeal. For the purposes of Article IX, references to "the
Registrant" include all constituent corporations absorbed in a consolidation or
merger as well as the resulting or surviving corporation, so that any person who
is or was a director or officer of such a constituent corporation or is or was
serving at the request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise shall stand in the same position under the provisions of this
Article IX of the Registrant's Articles of Incorporation, with respect to the
resulting or surviving corporation, as such person would if such person had
served the resulting or surviving corporation in the same capacity.
G. Insurance. The Registrant may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Registrant or
another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Registrant would
have the power to indemnify such person against such expense, liability or loss
under the General Corporation Law of the State of Delaware.
H. Severability. If any provision or provisions of Article IX shall be
held to be invalid, illegal or unenforceable for any reason whatsoever: (1) the
validity, legality and enforceability of the remaining
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<PAGE>
provisions of Article IX (including, without limitation, each portion of any
paragraph of Article IX containing any such provision held to be invalid,
illegal or unenforceable, that is not itself held to be invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and (2) to
the fullest extent possible, the provisions of Article IX of the Registrant's
Articles of Incorporation (including, without limitation, each such portion of
any paragraph of Article IX containing any such provision held to be invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement:
4.1 Certificate of Incorporation (Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1, Reg. No. 333-11253, is incorporated herein
by reference).
4.2 By-Laws (Exhibit 3.2 to the Registrant's Registration Statement on
Form S-1, Reg. No. 333-11253, is incorporated herein by reference).
5 Opinion of Greenebaum Doll & McDonald PLLC as to the legality of the
securities being registered.
23.1 Consent of Greenebaum Doll & McDonald PLLC (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
25 Powers of Attorney (included on signature page of the Registration
Statement).
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 the 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 the 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) of this Item 9
do not apply if the Registration Statement is on Form S-3 or Form S-8 and the
information required to be included in the post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section
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13(a) or Section 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
Registrant's annual report pursuant to Section 13(a) or 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.
The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report, to security holders that is incorporated by
reference to the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
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, 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 Registrant of expenses incurred or
paid by a director, officer or controlling person of 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, 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
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Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, in the City of Birmingham, State of Alabama, on July 24, 1997.
PJ AMERICA, INC.
By: /s/ Douglas S. Stephens
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Douglas S. Stephens
Chief Executive Officer and President
In accordance with 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.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Douglas S. Stephens, and D. Ross Davison and each
of them such individual's true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for such individual and in his or
her name, place and stead, in any and all capacities, to sign all amendments
(including post-effective amendments) to this Registration Statement and any
registration statement related to the offering contemplated by this Registration
Statement that is to be effective upon filing pursuant to Rule 462(b) under the
Securities Act of 1933, and to file the same, with all exhibits thereto, and all
documents in connection therewith, with the Securities and Exchange Commission
and any State or other regulatory authority, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite or 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 any of them, or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
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Signature Title Date
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<S> <C> <C>
/s/ Richard F. Sherman Chairman of the Board July 24, 1997
- --------------------------
Richard F. Sherman
/s/ Douglas S. Stephens Chief Executive Office, President July 24, 1997
- -------------------------- and Director
Douglas S. Stephens
/s/ D. Ross Davison Vice President--Chief Financial July 24, 1997
- -------------------------- Officer and Treasurer (Chief
D. Ross Davison Financial and Accounting Officer)
/s/ Michael M. Fleishman Director July 24, 1997
- --------------------------
Michael M. Fleishman
</TABLE>
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/s/ Martin T. Hart Director July 24, 1997
- --------------------------
Martin T. Hart
/s/ Frank O. Keener Director July 24, 1997
- --------------------------
Frank O. Keener
/s/ Stephen P. Langford Director July 24, 1997
- --------------------------
Stephen P. Langford
/s/ Charles W. Schnatter Director July 24, 1997
- --------------------------
Charles W. Schnatter
-8-
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Exhibit 5
[LETTERHEAD OF GREENEBAUM DOLL & McDONALD PLLC]
July 24, 1997
PJ America
9109 Parkway East
Birmingham, AL 35206
Ladies and Gentlemen:
We have acted as legal counsel in connection with the preparation of a
Registration Statement on Form S-8 under the Securities Act of 1933, as amended
(the "Registration Statement"), covering an aggregate of 160,000 shares of
Common Stock, par value $.01 per share (the "Common Stock"), of PJ America,
Inc., a Delaware corporation (the "Company"), to be issued under the PJ America
Non-Employee Directors 1996 Stock Incentive Plan (the "Plan").
We have examined and are familiar with the Certificate of Incorporation and
By-Laws of the Company, and the various corporate records and proceedings
relating to the organization of the Company and the proposed issuance of the
Common Stock. We have also examined such other documents and proceedings as we
have considered necessary for the purpose of this opinion.
Based on the foregoing, it is our opinion that the Common Stock has been
duly authorized and, when issued and paid for in accordance with the terms of
the Registration Statement and the Plan, will be validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this Opinion as an exhibit to the
Registration Statement, and with such state securities administrators as may
require such opinion of counsel for the registration of the Common Stock. In
giving this consent, we do not thereby admit that we within the category of
persons whose consent is required under Section 7 of the Securities Act of 1933,
as amended, or the Rules and Regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
/s/ Greenebaum Doll & McDonald PLLC
<PAGE>
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the PJ America, Inc. Non-Employee Directors 1996
Stock Incentive Plan of PJ America, Inc. and Subsidiary of our report
dated June 17, 1997, with respect to the supplemental consolidated
financial statements of PJ America, Inc. and Subsidiaries included in
Amendment No. 2 to its Registration Statement (Form S-1 No. 30109).
/s/ Ernst & Young LLP
Birmingham, Alabama
July 21, 1997
