As filed with the Securities and Exchange Commission on November 12, 1998.
Registration File No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
RYAN'S FAMILY STEAK HOUSES, INC.
(Exact name of registrant as specified in its charter)
South Carolina 57-0657895
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
405 Lancaster Avenue (29650)
Post Office Box 100
Greer, South Carolina 29652
(864) 879-1000
(Address, Including Zip Code, of Principal Executive Offices)
RYAN'S FAMILY STEAK HOUSES, INC. 1998 STOCK OPTION PLAN
(Full Title of the Plan)
Charles D. Way, President and Chief Executive Officer
Ryan's Family Steak Houses, Inc.
405 Lancaster Avenue (29650)
Post Office Box 100
Greer, South Carolina 29652
(864) 879-1000
(Name, address, and telephone number, including area code, of agent
for service)
Copies to:
Eric K. Graben, Esq.
Wyche, Burgess, Freeman & Parham, P.A.
Post Office Box 728
Greenville, South Carolina 29602-0728
(864) 242-8200
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Securities Amount to Offering Price Aggregate Amount of
to be Registered be Registered Per Share(1) Offering Price (1) Registration
Fee(1)
Common Stock 3,000,000 shares $11.5625 $34,687,500.00 $9,643.13
(1) Pursuant to Rule 457(c) and (h), the average of the high and low
prices reported on the Nasdaq National Market System on November 6,
1998 (as published in the Wall Street Journal) is used for purposes of
calculating the registration fee.
The Exhibit Index is on page 9 of this Registration Statement.
PART I:
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not included in this registration statement (the "Registration
Statement") but provided or to be provided to Ryan's Family Steak
Houses, Inc.'s (the "Company") 1998 Stock Option Plan (the "Plan")
participants pursuant to Rule 428(b) of the Securities Act of 1993, as
amended (the "Securities Act").
Item 2. Registrant Information and Employee Plan Annual Information.
Not included in this Registration Statement but provided or to be
provided to Plan participants pursuant to Rule 428(b) of the
Securities Act.
PART II:
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents or portions thereof are hereby
incorporated by reference:
The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 (Commission File No. 0-10943).
All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended, since the
end of the Company's 1997 fiscal year.
The description of the Company's common stock contained in the
registrant's Form 8-A filed with the Securities and Exchange
Commission, including any amendments thereto or reports filed for the
purpose of updating such description (Commission File No. 0-10943).
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 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 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 thereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The law firm of Wyche, Burgess, Freeman & Parham, P.A., located
in Greenville, South Carolina, is counsel to the registrant in
connection with this Registration Statement and has passed on certain
aspects of the legality of the common stock covered hereby. As of
November 3, 1998, attorneys of Wyche, Burgess, Freeman & Parham, P.A.,
beneficially owned in the aggregate 73,735 of the outstanding shares
of common stock of the registrant. In addition, James M. Shoemaker,
Jr., a member of Wyche, Burgess, Freeman & Parham, P.A., is a director
of the Company.
Item 6. Indemnification of Directors and Officers.
Article V of the Company's By-Laws, as amended, provides as
follows:
Section 5.1 Indemnification of Directors. The Corporation
shall indemnify any individual made a party to a proceeding because he
is or was a director of the corporation against liability incurred in
the proceeding to the fullest extent permitted by law.
Section 5.2 Advance Expenses for Directors. The Corporation
shall pay for or reimburse the reasonable expenses incurred by a
director who is a party to a proceeding in advance of final
disposition of the proceeding to the fullest extent permitted by law.
Section 5.3 Indemnification of Officers, Agents, and Employees
Who Are Not Directors. The board of directors may indemnify and
advance expenses to any officer, employee, or agent of the
corporation, who is not a director of the corporation, to any extent,
consistent with public policy, as determined by the general or
specific action of the board of directors.
Sections 33-8-500 et seq. of the South Carolina Business
Corporation Act of 1988, as amended, providing for indemnification of
directors are contained in Exhibit 99.2 of this Registration Statement
and are incorporated herein by reference.
The Articles of Amendment to the Articles of Incorporation of the
registrant filed with the South Carolina Secretary of State's office
on May 25, 1989 provide as follows:
A director of the corporation shall not be personally liable to
the corporation or any of its shareholders for monetary damages for
breach of fiduciary duty as a director, provided that this provision
shall not be deemed to eliminate or limit the liability of a director
(i) for any breach of the director's duty of loyalty to the
corporation or its stockholders; (ii) for acts or omissions not in
good faith or which involved gross negligence, intentional misconduct,
or a knowing violation of law; (iii) imposed under Section 33-8-330 of
the South Carolina Business Corporation Act of 1988 (improper
distribution to shareholder); or (iv) for any transaction from which
the director derived an improper personal benefit.
The Plan provides for indemnification of the members of the
Committee, defined in the Plan as the compensation committee of the
Company's board of directors which administers the Plan, as follows:
In addition to such other rights of indemnification as they may
have as members of the Board, the members of the Committee shall, to
the fullest extent permitted by law, be indemnified by the Company
against the reasonable expenses, including attorney's fees, actually
and necessarily incurred in connection with the defense of any action,
suit or proceeding, or in connection with any appeal therein, to which
they or any of them may be a party by reason of any action taken or
failure to act under or in connection with the Plan or any Option
granted thereunder, and against all amounts paid by them in settlement
thereof (provided such settlement is approved by independent legal
counsel selected by the Company) or paid by them in satisfaction of a
judgment in any such action, suit or proceeding, except in relation to
matters as to which it shall be adjudged in such action, suit or
proceeding that such Board member (or Committee member, as applicable)
is liable for gross negligence or misconduct in the performance of his
or her duties; provided that within 60 days after institution of any
such action, suit or proceeding the Board member (or Committee member,
as applicable) shall in writing offer the Company the opportunity, at
its own expense, to handle and defend the same.
Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit
4.1 Articles of Incorporation, as amended through April 24, 1986, and
Bylaws of the Company: Incorporated by reference to Exhibits 4(a) and
4(b) from the Registration Statement of the Company filed with the SEC
on Form S-3 (Commission file no. 33-7245).
4.2 Articles of Amendment to the Articles of Incorporation, dated April
22, 1987: Incorporated by reference to Exhibit 3.2 to the Annual
Report on Form 10-K for the period ended January 1, 1992 (Commission
file no. 0-10943) (the "1991 10-K").
4.3 Amendment to By-Laws of the Company, dated October 25, 1990:
Incorporated by reference to Exhibit 3.3 to the 1991 10-K.
4.4 Articles of Amendment to the Articles of Incorporation, dated May 25,
1989: Incorporated by reference to Exhibit 4.3 to the Registration
Statement of the Company filed with the SEC on Form S-8 (Commission
file no. 33-53834).
4.5 Specimen of Company common stock certificate: Incorporated by
reference to Exhibit 4.1 to the 1991 10-K.
4.6.1 Credit Agreement dated as of June 5, 1996 among Ryan's Family
Steak Houses, Inc., Wachovia Bank of Georgia, N.A., as Agent, and
certain other banks (the "Credit Agreement"): Incorporated by
reference to Exhibit 10.18 to the Annual Report on Form 10-K for the
period ended January 1, 1997 (Commission file no. 0-10943).
4.6.2 First Amendment to Credit Agreement dated as of October 9, 1998
among Ryan's Family Steak Houses, Inc., Wachovia Bank, N.A. (f/k/a
Wachovia Bank of Georgia, N.A.), as Agent, SunTrust Bank, Atlanta, The
Bank of Tokyo-Mitsubishi, Ltd., Atlanta Agency and Wachovia Bank, N.A.
(f/k/a Wachovia Bank of South Carolina, N.A.) as a Bank.
5.1 Opinion of Wyche, Burgess, Freeman & Parham, P.A. regarding legality
of shares of the Company.
23.1 Consent of Wyche, Burgess, Freeman & Parham, P.A.-- contained in
Exhibit 5.1.
23.2 Consent of KPMG Peat Marwick LLP.
24.1 Power of Attorney -- contained on the signature page of this filing.
99.1 Ryan's Family Steak Houses, Inc. 1998 Stock Option Plan: Incorporated
by reference to Exhibit A to the Proxy Statement of the Company, dated
March 27, 1998, filed with respect to the Annual Meeting of
Shareholders held on April 30, 1998 (Commission file no. 0-10943).
99.2 Sections 33-8-500 to 33-8-580 of the South Carolina Business
Corporations Act of 1988, as amended (which govern indemnification of
directors).
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. 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 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
a 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 registration statement is on Form S-3, Form S-8 or Form F-
3, and 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 (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.
(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.
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 Greer, State of
South Carolina, as of November 6, 1998.
Ryan's Family Steak Houses, Inc.
By: /s/ Charles D. Way
Charles D. Way
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Charles D. Way, Fred
T. Grant, Jr. and Janet J. Gleitz, and each of them, as true and
lawful attorneys-in-fact and agents, 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
(including pre-effective and post-effective 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 and the Nasdaq National Market,
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 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 which said attorneys-in-
fact and agents or any of them, or their or his or her 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 and as of the dates indicated:
Signature Title Date
/s/ Charles D. Way President, Chief Executive Officer November 6, 1998
Charles D. Way and Director
/s/ Fred T. Grant, Jr. Vice-President Finance, Treasurer, November 6, 1998
Fred T. Grant, Jr. and Assistant Secretary (Principal
Financial and Accounting Officer)
/s/ G. Edwin McCranie Executive Vice President November 6, 1998
G. Edwin McCranie and Director
/s/ Barry L. Edwards Director November 6, 1998
Barry L. Edwards
/s/ James M. Shoemaker, Jr. Director November 6, 1998
James M. Shoemaker, Jr.
/s/ Harold K. Roberts Director November 6, 1998
Harold K. Roberts, Jr.
/s/ James D. Cockman Director November 6, 1998
James D. Cockman
/s/ Brian S. MacKenzie Director November 6, 1998
Brian S. MacKenzie
[Remainder of this page intentionally left blank]
INDEX TO EXHIBITS CONTAINED HEREIN
Exhibit Page
4.1 Articles of Incorporation, as amended through April 24, 1986, and
Bylaws of the Company: Incorporated by reference to Exhibits 4(a) and
4(b) from the Registration Statement of the Company filed with the SEC
on Form S-3 (Commission file no. 33-7245).
4.2 Articles of Amendment to the Articles of Incorporation, dated
April 22, 1987: Incorporated by reference to Exhibit 3.2 to the
Annual Report on Form 10-K for the period ended January 1, 1992
(Commission file no. 0-10943) (the "1991 10-K").
4.3 Amendment to By-Laws of the Company, dated October 25, 1990:
Incorporated by reference to Exhibit 3.3 to the 1991 10-K.
4.4 Articles of Amendment to the Articles of Incorporation, dated May
25, 1989: Incorporated by reference to Exhibit 4.3 to the
Registration Statement of the Company filed with the SEC on Form S-8
(Commission file no. 33-53834).
4.5 Specimen of Company common stock certificate: Incorporated by
reference to Exhibit 4.1 to the 1991 10-K.
4.6.1 Credit Agreement dated as of June 5, 1996 among Ryan's Family
Steak Houses, Inc., Wachovia Bank of Georgia, N.A., as Agent, and
certain other banks (the "Credit Agreement"): Incorporated by
reference to Exhibit 10.18 to the Annual Report on Form 10-K for the
period ended January 1, 1997 (Commission file no. 0-10943).
4.6.2 p. 10 First Amendment to Credit Agreement dated as of October 9,
1998 among Ryan's Family Steak Houses, Inc., Wachovia Bank, N.A.
(f/k/a Wachovia Bank of Georgia, N.A.), as Agent, SunTrust Bank,
Atlanta, The Bank of Tokyo-Mitsubishi, Ltd., Atlanta Agency and
Wachovia Bank, N.A. (f/k/a Wachovia Bank of South Carolina, N.A.) as a
Bank.
5.1 p. 15 Opinion of Wyche, Burgess, Freeman & Parham, P.A. regarding
legality of shares of the Company.
23.1 Consent of Wyche, Burgess, Freeman & Parham, P.A.-- contained in
Exhibit 5.1.
23.2 p. 17 Consent of KPMG Peat Marwick LLP.
24.1 p. 7 Power of Attorney -- contained on the signature page of this
filing.
99.1 Ryan's Family Steak Houses, Inc. 1998 Stock Option Plan:
Incorporated by reference to Exhibit A to the Proxy Statement of the
Company, dated March 27, 1998, filed with respect to the Annual
Meeting of Shareholders held on April 30, 1998 (Commission file no.
0-10943).
99.2 p. 18 Sections 33-8-500 to 33-8-580 of the South Carolina Business
Corporations Act of 1988, as amended (which govern indemnification of
directors).
Exhibit 4.6.2
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment")
is made as of the 9th day of October, 1998, by and among RYAN'S FAMILY
STEAK HOUSES, INC., a South Carolina corporation (the "Borrower"),
WACHOVIA BANK, N.A. (formerly known as Wachovia Bank of Georgia,
N.A.), as Agent, SUNTRUST BANK, ATLANTA, THE BANK OF TOKYO-MITSUBISHI,
LTD., ATLANTA AGENCY and WACHOVIA BANK, N.A. (formerly known as
Wachovia Bank of South Carolina, N.A.), as a Bank (collectively
referred to herein as the "Banks").
R E C I T A L S:
The Borrower, the Agent, and the Banks have entered into a
certain Credit Agreement dated June 5, 1996 (the "Credit Agreement").
Capitalized terms used in this Amendment which are not otherwise
defined in this Amendment shall have the respective meanings assigned
to them in the Credit Agreement.
The Borrower has requested the Agent and the Banks to amend
the Credit Agreement upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the Recitals and the
mutual promises contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Agent and the Banks, intending to be
legally bound hereby, agree as follows:
SECTION 1. Recitals. The Recitals are incorporated herein
by reference and shall be deemed to be a part of this Amendment.
SECTION 2. Amendments. The Credit Agreement is hereby
amended as set forth in this Section 2.
SECTION 2.1. Amendment to Section 1.01. The following
definitions are hereby added to Section 1.01 of the Credit Agreement:
"Y2K Plan" has the meaning set forth in Section 4.19.
"Year 2000 Compliant and Ready" as used herein means that: (A)
the Borrower's and its Subsidiaries' hardware and software systems
with respect to the operation of its business and its general business
plan will: (i) handle date information involving any and all dates
before, during and/or after January 1, 2000, including accepting
input, providing output and performing date calculations in whole or
in part; (ii) operate, accurately without interruption on and in
respect of any and all dates before, during and/or after January 1,
2000 and without any change in performance, and (iii) store and
provide date input information without creating any ambiguity as to
the century; and (B) the Borrower has developed alternative plans to
ensure business continuity in the event of the failure of any or all
of items (i) through (iii) above.
2.02 Addition of Section 4.19. A new section, Section 4.19,
is hereby added to the Credit Agreement to read in its entirety as
follows:
The Borrower has developed and has delivered to the Agent and Banks a
comprehensive plan (the "Y2K Plan" which term includes any and all
existing and future amendments) for insuring that the Borrower's and
its Subsidiaries' software and hardware systems which impact or affect
in any way the business operations of the Borrower and its
Subsidiaries will be Year 2000 Compliant and Ready. The Borrower and
its Subsidiaries has met the Y2K Plan milestones such that all
hardware and software systems will be Year 2000 Compliant and Ready
(including all internal and external testing) in accordance with the
Y2K Plan.
2.03 Amendment to Section 5.01(j) and Addition of Sections
5.01(k), (l) and (m). Section 5.01 of the Credit Agreement is hereby
amended to amend and restate subsection (j) and add new subsections
(k), (l) and (m) to read as follows:
(j) simultaneously with the delivery of each set of
annual and quarterly financial statements referred to in paragraphs
(a) and (b) above, a statement of its Chief Executive Officer or Chief
Financial Officer to the effect that nothing has come to their
attention to cause them to believe that the Y2K Plan milestones have
not been met in a manner such that the Borrower's and its
Subsidiaries' hardware and software systems will not be Year 2000
Compliant and Ready in accordance with the Y2K Plan;
(k) within 5 Domestic Business Days after the Borrower
becomes aware of any deviations from the Y2K Plan which would cause
compliance with the Y2K Plan to be delayed beyond or not achieved on
or before September 30, 1999, a statement of its Chief Executive
Officer or Chief Financial Officer setting forth the details thereof
and the action which the Borrower is taking or proposes to take with
respect thereto;
(l) promptly upon the receipt thereof, a copy of any
third party assessments of the Borrower's Y2K Plan together with any
recommendations made by such third party with respect to Year 2000
compliance; and
(m) from time to time such additional information
regarding the financial position or business of the Borrower and its
Subsidiaries as the Agent, at the request of any Bank, may reasonably
request.
2.04 Addition of Section 5.22. A new section, Section 5.22,
is hereby added to the Credit Agreement to read in its entirety as
follows:
"SECTION 5.22. Y2K Plan. The Borrower will meet the
milestones contained in the Y2K Plan in all material respects and will
have all hardware and software systems Year 2000 Compliant and Ready
(including all internal and external testing) on or before September
30, 1999."
2.05 Amendment and Restatement of Section 5.03. Section
5.03 of the Credit Agreement is hereby amended and restated to read in
its entirety as follows:
"SECTION 5.03. Ratio of Consolidated Funded Debt to Total
Consolidated Capitalization. The ratio of Consolidated Funded Debt to
Total Consolidated Capitalization will at all times be less than 0.45
to 1.00."
2.06 Amendment and Restatement of Section 5.04. Section
5.04 of the Credit Agreement is hereby amended and restated to read in
its entirety as follows:
"SECTION 5.04. Minimum Consolidated Net Worth.
Consolidated Net Worth will at no time be less than $255,000,000."
2.07 Amendment and Restatement of Section 2.05(a). Section
2.05(a) of the Credit Agreement is hereby amended and restated to read
in its entirety as follows:
"SECTION 2.05. Interest Rates. (a) "Applicable Margin"
means: (1) prior to June 30, 1999, (i) for any Base Rate Loan, 0%;
and (ii) for any Euro-Dollar Loan, 0.50%; and (2) on June 30, 1999 and
at all times thereafter, (i) for any Base Rate Loan, 0.25%; and (ii)
for any Euro-Dollar Loan, 0.75%."
SECTION 3. Conditions to Effectiveness. The effectiveness
of this Amendment and the obligations of the Banks hereunder are
subject to the following conditions, unless the Required Banks waive
such conditions:
(a) receipt by the Agent from each of the parties hereto of
a duly executed counterpart of this Amendment signed by such party;
and
(b) the fact that the representations and warranties of the
Borrower contained in Section 5 of this Amendment shall be true on and
as of the date hereof.
SECTION 4. No Other Amendment. Except for the amendments
set forth above, the text of the Credit Agreement shall remain
unchanged and in full force and effect. This Amendment is not
intended to effect, nor shall it be construed as, a novation. The
Credit Agreement and this Amendment shall be construed together as a
single agreement. Nothing herein contained shall waive, annul, vary
or affect any provision, condition, covenant or agreement contained in
the Credit Agreement, except as herein amended, nor affect nor impair
any rights, powers or remedies under the Credit Agreement as hereby
amended. The Banks and the Agent do hereby reserve all of their
rights and remedies against all parties who may be or may hereafter
become secondarily liable for the repayment of the Notes. The
Borrower promises and agrees to perform all of the requirements,
conditions, agreements and obligations under the terms of the Credit
Agreement, as heretofore and hereby amended, the Credit Agreement, as
amended, being hereby ratified and affirmed. The Borrower hereby
expressly agrees that the Credit Agreement, as amended, is in full
force and effect.
SECTION 5. Representations and Warranties. The Borrower
hereby represents and warrants to each of the Banks as follows:
(a) No Default or Event of Default, nor any act, event,
condition or circumstance which with the passage of time or the giving
of notice, or both, would constitute an Event of Default, under the
Credit Agreement or any other Loan Document has occurred and is
continuing unwaived by the Banks on the date hereof.
(b) The Borrower has the power and authority to enter into
this Amendment and to do all acts and things as are required or
contemplated hereunder, or thereunder, to be done, observed and
performed by it.
(c) This Amendment has been duly authorized, validly
executed and delivered by one or more authorized officers of the
Borrower and constitute legal, valid and binding obligations of the
Borrower enforceable against it in accordance with their terms,
provided that such enforceability is subject to general principles of
equity.
(d) The execution and delivery of this Amendment and the
Borrower's performance hereunder and thereunder do not and will not
require the consent or approval of any regulatory authority or
governmental authority or agency having jurisdiction over the
Borrower, nor be in contravention of or in conflict with the articles
of incorporation or bylaws of the Borrower, or the provision of any
statute, or any judgment, order or indenture, instrument, agreement or
undertaking, to which the Borrower is party or by which the Borrower's
assets or properties are or may become bound.
SECTION 6. Counterparts. This Amendment may be executed in
multiple counterparts, each of which shall be deemed to be an original
and all of which, taken together, shall constitute one and the same
agreement.
SECTION 7. Governing Law. This Amendment shall be
considered in accordance with and governed by the laws of the State of
Georgia.
SECTION 8. Up-front Fee. On the date of this Amendment,
the Borrower shall pay to the Agent for the ratable account of each
Bank an up-front fee equal to the product of: (i) such Bank's
Commitment on the date of this Amendment, times (ii) 0.03%.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered, or have caused their respective duly authorized officers or
representatives to execute and deliver, this Amendment as of the day
and year first above written.
BORROWER:
RYAN'S FAMILY STEAK HOUSES, INC.
By: /s/ Fred Grant, Jr.
Title: VP - Finance
[Remainder of this page intentionally left blank]
WACHOVIA BANK, N.A. (formerly known as Wachovia Bank of Georgia,
N.A.),
as Agent
By:_____________________________________
Title:__________________________________
[Hard page return]
WACHOVIA BANK, N.A. (formerly known as Wachovia Bank of South
Carolina, N.A.),
as a Bank
By:_____________________________________
Title:__________________________________
[Hard page return]
SUNTRUST BANK, ATLANTA
By:_____________________________________
Title:__________________________________
By:_____________________________________
Title:__________________________________
[Hard page return]
THE BANK OF TOKYO-MITSUBISHI, LTD., ATLANTA AGENCY
By:_____________________________________
Title:__________________________________
Exhibit 5.1
[Wyche, Burgess, Freeman & Parham Letterhead]
November 6, 1998
Ryan's Family Steak Houses, Inc.
Post Office Box 100
Greer, South Carolina 29652
Re: Opinion re Legality of shares issued pursuant to the Registration
Statement on Form S-8 of Ryan's Family Steak Houses, Inc. 1998 Stock
Option Plan
Ladies and Gentlemen:
The opinion set forth below is rendered with respect to the
3,000,000 shares, $1.00 par value, of common stock of Ryan's Family
Steak Houses, Inc., a South Carolina corporation (the "Company"), that
will be registered with the Securities and Exchange Commission by the
above-referenced Registration Statement on Form S-8 pursuant to the
Securities Act of 1933, as amended, in connection with the Company's
1998 Stock Option Plan (the "Plan"). We have examined the Company's
Articles of Incorporation, and all amendments thereto, and the
Company's By-Laws, as amended, and reviewed the records of the
Company's corporate proceedings. We have made such investigation of
law as we have deemed necessary in order to enable us to render this
opinion. With respect to matters of fact, we have relied upon
information provided to us by the Company and no further
investigation. With respect to all examined documents, we have
assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to authentic
originals of all documents submitted to us as copies and the accuracy
and completeness of the information contained therein.
Based on and subject to the foregoing and subject to the
comments, limitations and qualifications set forth below, we are of
the opinion that upon satisfaction of the exercisability and other
conditions set forth in the Plan and in the applicable stock option
agreement or letter and payment of the applicable exercise price,
shares of the Company's common stock covered by the above-referenced
Registration Statement that are issued after the date hereof under and
in compliance with the terms of the Plan will be legally issued, fully
paid to the Company and non-assessable.
The foregoing opinion is limited to matters governed by the laws
of the State of South Carolina in force on the date of this letter.
We express no opinion with regard to any matter that may be (or that
purports to be) governed by the laws of any other state or
jurisdiction or any political subdivision of the State of South
Carolina. In addition, we express no opinion with respect to any
matter arising under or governed by the South Carolina Uniform
Securities Act, as amended, any law respecting disclosure or any law
respecting any environmental matter.
This opinion is rendered as of the date of this letter and
applies only to the matters specifically covered by this opinion, and
we disclaim any continuing responsibility for matters occurring after
the date of this letter.
Except as noted below, this opinion is rendered solely for your
benefit in connection with the above-referenced Registration Statement
on Form S-8 respecting shares of the Company's common stock to be
issued under the Plan and may not be relied upon, quoted or used by
any other person or entity, other than participants in the Plan, or
for any other purpose without our prior written consent.
We consent to the use of this opinion as an exhibit to the above-
referenced Registration Statement on Form S-8 respecting shares of the
Company's common stock to be issued under the Plan. We also consent
to the use of our name under the heading "Item 5: Interests of Named
Experts and Counsel."
Very truly yours,
/s/ WYCHE, BURGESS, FREEMAN & PARHAM, P.A.
WYCHE, BURGESS, FREEMAN & PARHAM, P.A.
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Ryan's Family Steak Houses, Inc.:
We consent to incorporation by reference in the Registration Statement
on Form S-8 of Ryan's Family Steak Houses, Inc. 1998 Stock Option Plan
of our report dated January 21, 1998, relating to the consolidated
balance sheets of Ryan's Family Steak Houses, Inc. as of December 31,
1997 and January 1, 1997, and the related consolidated statements of
earnings and cash flows for each of the years in the three-year period
ended December 31, 1997, which report appears in the December 31,
1997, annual report of Ryan's Family Steak Houses, Inc. and is
incorporated by reference in the December 31, 1997, annual report on
Form 10-K of Ryan's Family Steak Houses, Inc.
/s/ KPMG Peat
Marwick LLP
Greenville, South Carolina
November 6, 1998
Exhibit 99.2
CODE OF LAWS OF SOUTH CAROLINA 1976 ANNOTATED
TITLE 33. CORPORATIONS, PARTNERSHIPS AND ASSOCIATIONS
CHAPTER 8. DIRECTORS AND OFFICERS
ARTICLE 5. INDEMNIFICATION
33-8-500. Article definitions.
In this subchapter:
(1) "Corporation" includes any domestic or foreign predecessor entity of a
corporation in a merger or other transaction in which the
predecessor's existence ceased upon consummation of the transaction.
(2) "Director" means an individual who is or was a director of a
corporation or an individual who, while a director of a corporation,
is or was serving at the corporation's request as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan,
or other enterprise. A director is considered to be serving an
employee benefit plan at the corporation's request if his duties to
the corporation also impose duties on, or otherwise involve services
by, him to the plan or to participants in or beneficiaries of the
plan. "Director" includes, unless the context requires otherwise, the
estate or personal representative of a director.
(3) "Expenses" include counsel fees.
(4) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an
employee benefit plan), or reasonable expenses incurred with respect
to a proceeding.
(5) "Official capacity" means: (i) when used with respect to a director,
the office of director in a corporation; and (ii) when used with
respect to an individual other than a director, as contemplated in
Section 33-8-560, the office in a corporation held by the officer, or
the employment or agency relationship undertaken by the employee or
agent on behalf of the corporation. "Official capacity" does not
include service for any other foreign or domestic corporation or any
partnership, joint venture, trust, employee benefit plan, or other
enterprise.
(6) "Party" includes an individual who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(7) "Proceeding" means any threatened, pending, or completed action, suit,
or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal.
33-8-510. Authority to indemnify.
(a) Except as provided in subsection (d), a corporation may indemnify an
individual made a party to a proceeding because he is or was a
director against liability incurred in the proceeding if:
(1) he conducted himself in good faith; and
(2) he reasonably believed:
(i) in the case of conduct in his official capacity with the corporation,
that his conduct was in its best interest; and
(ii) in all other cases, that his conduct was at least not opposed to
its best interest; and
(3) in the case of any criminal proceeding, he had no reasonable cause to
believe his conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan for a
purpose he reasonably believed to be in the interests of the
participants in and beneficiaries of the plan is conduct that
satisfies the requirement of subsection (a)(2)(ii).
(c) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is
not, of itself, determinative that the director did not meet the
standard of conduct described in this section.
(d) A corporation may not indemnify a director under this section:
(1) in connection with a proceeding by or in the right of the corporation
in which the director was adjudged liable to the corporation; or
(2) in connection with any other proceeding charging improper personal
benefit to him, whether or not involving action in his official
capacity, in which he was adjudged liable on the basis that personal
benefit was improperly received by him.
(e) Indemnification permitted under this section in connection with a
proceeding by or in the right of the corporation is limited to
reasonable expenses incurred in connection with the proceeding.
33-8-520. Mandatory indemnification.
Unless limited by its articles of incorporation, a corporation
shall indemnify a director who was wholly successful, on the merits or
otherwise, in the defense of any proceeding to which he was a party
because he is or was a director of the corporation against reasonable
expenses incurred by him in connection with the proceeding.
33-8-530. Advance for expenses.
(a) A corporation may pay for or reimburse the reasonable expenses
incurred by a director who is a party to a proceeding in advance of
final disposition of the proceeding if:
(1) the director furnishes the corporation a written affirmation of his
good faith belief that he has met the standard of conduct described in
Section 33-8-510;
(2) the director furnishes the corporation a written undertaking, executed
personally or on his behalf, to repay the advance if it is ultimately
determined that he did not meet the standard of conduct; and
(3) a determination is made that the facts then known to those making the
determination would not preclude indemnification under this
subchapter.
(b) The undertaking required by subsection (a)(2) must be an unlimited
general obligation of the director but need not be secured and may be
accepted without reference to financial ability to make repayment.
(c) Determinations and authorizations of payments under this section must
be made in the manner specified in Section 33-8-550.
33-8-540. Court-ordered indemnification.
Unless a corporation's articles of incorporation provide
otherwise, a director of the corporation who is a party to a
proceeding may apply for indemnification to the court conducting the
proceeding or to another court of competent jurisdiction. On receipt
of an application, the court after giving any notice the court
considers necessary may order indemnification if it determines:
(1) the director is entitled to mandatory indemnification under Section
33-8-520, in which case the court also shall order the corporation to
pay the director's reasonable expenses incurred to obtain
court-ordered indemnification; or
(2) the director is fairly and reasonably entitled to indemnification in
view of all the relevant circumstances, whether or not he met the
standard of conduct set forth in Section 33-8-510 or was adjudged
liable as described in Section 33-8-510(d), but if he was adjudged so
liable his indemnification is limited to reasonable expenses incurred.
33-8-550. Determination and authorization of indemnification.
(a) A corporation may not indemnify a director under Section 33-8-510
unless authorized in the specific case after a determination has been
made that indemnification of the director is permissible in the
circumstances because he has met the standard of conduct set forth in
Section 33-8-510.
(b) The determination must be made:
(1) by the board of directors by majority vote of a quorum consisting of
directors not at the time parties to the proceeding;
(2) if a quorum cannot be obtained under subdivision (1), by majority vote
of a committee duly designated by the board of directors (in which
designation directors who are parties may participate), consisting
solely of two or more directors not at the time parties to the
proceeding;
(3) by special legal counsel:
(i) selected by the board of directors or its committee in the manner
prescribed in item (1) or (2); or
(ii) if a quorum of the board of directors cannot be obtained under
subdivision (1) and a committee cannot be designated under subdivision
(2), selected by majority vote of the full board of directors (in
which selection directors who are parties may participate); or
(4) by the shareholders, but shares owned by or voted under the control of
directors who are at the time parties to the proceeding may not be
voted on the determination.
(c) Authorization of indemnification and evaluation as to reasonableness
of expenses must be made in the same manner as the determination that
indemnification is permissible, except that, if the determination is
made by special legal counsel, authorization of indemnification and
evaluation as to reasonableness of expenses must be made by those
entitled under subsection (b)(3) to select counsel.
33-8-560. Indemnification of officers, employees, and agents.
Unless a corporation's articles of incorporation provide
otherwise:
(1) an officer of the corporation who is not a director is entitled to
mandatory indemnification under Section 33-8-520, and is entitled to
apply for court-ordered indemnification under Section 33-8-540, in
each case to the same extent as a director;
(2) the corporation may indemnify and advance expenses under this
subchapter to an officer, employee, or agent of the corporation who is
not a director to the same extent as to a director; and
(3) a corporation also may indemnify and advance expenses to an officer,
employee, or agent who is not a director to the extent, consistent
with public policy, that may be provided by its articles of
incorporation, bylaws, general or specific action of its board of
directors, or contract.
33-8-570. Insurance.
A corporation may purchase and maintain insurance on behalf of an
individual who is or was a director, officer, employee, or agent of
the corporation, or who, while a director, officer, employee, or agent
of the corporation, is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee, or
agent of another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise, against
liability asserted against or incurred by him in that capacity or
arising from his status as a director, officer, employee, or agent,
whether or not the corporation would have power to indemnify him
against the same liability under Section 33-8-510 or 33-8-520.
33-8-580. Application of article.
(a) A provision treating a corporation's indemnification of or advance for
expenses to directors that is contained in its articles of
incorporation, bylaws, a resolution of its shareholders or board of
directors, or in a contract or otherwise is valid only if and to the
extent the provision is consistent with this article. If articles of
incorporation limit indemnification or advance for expenses,
indemnification and advance for expenses are valid only to the extent
consistent with the articles.
(b) This article does not limit a corporation's power to pay or reimburse
expenses incurred by a director in connection with his appearance as a
witness in a proceeding at a time when he has not been made a named
defendant or respondent to the proceeding.
