<PAGE>
As filed with the Securities and Exchange Commission on November 14, 1997
File No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_____________________
Friendly Ice Cream Corporation
(Exact Name of Registrant as Specified in its Charter)
Massachusetts 04-2053130
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
1855 Boston Road
Wilbraham, Massachusetts 01095
(Address of Principal Executive Offices) (Zip Code)
Friendly Ice Cream Corporation
1997 Stock Option Plan
(Full Title of the Plan)
Aaron B. Parker
Associate General Counsel
Friendly Ice Cream Corporation
1855 Boston Road
Wilbraham, Massachusetts 01095
(Name and Address of Agent For Service)
(413) 543-2400
(Telephone Number, Including Area Code, of Agent For Service)
_____________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
Proposed Proposed Maximum Amount of
Title of Securities Amount to be Maximum Offering Aggregate Offering Registration
to be Registered Registered Price Per Share(1) Price(1) Fee
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares, $0.01
par value............. 400,000 $20.00 $8,000,000 $2,425
- -------------------------------------------------------------------------------------------
Total................. 400,000 $20.00 $8,000,000 $2,425
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457.
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been, or are to be, filed by
Friendly Ice Cream Corporation, a corporation organized under the laws of the
Commonwealth of Massachusetts (the "Company" or the "Registrant"), with the
Securities and Exchange Commission (the "Commission") pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated by
reference herein and shall be deemed to be a part hereof:
(a) The Company's Prospectus dated November 13, 1997, to be filed
subsequently with the Commission pursuant to Rule 424(b) under the
Securities Act. (File No. 333-34633)
(b) The description of the Company's common stock (the "Common Stock")
under the caption "Description of Registrant's Securities to be
Registered" included in the Company's Registration Statement on Form
8-A.
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, 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 herein by reference and shall be
deemed a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Common Stock offered hereby will be
passed upon for the Company by Choate, Hall & Stewart, Boston, Massachusetts.
Item 6. Indemnification of Directors and Officers.
Section 67 of Chapter 156B of the Massachusetts General Laws provides
that a corporation may indemnify its directors and officers to the extent
specified in or authorized by (i) the articles of organization, (ii) a by-law
adopted by the stockholders, or (iii) a vote adopted by the holders of a
majority of the shares of stock entitled to vote on the election of
directors. In all instances, the extent to which a corporation provides
indemnification to its directors and officers under Section 67 is optional.
In its Restated Articles of Organization, the Registrant has elected to
provide indemnification to its directors and officers in appropriate
circumstances. Generally, the Restated Articles of Organization provide that
the Registrant shall indemnify directors and officers of the Registrant
against liabilities and expenses arising out of legal proceedings brought
against them by reason of their status as directors or officers of the
Registrant or by reason of their agreeing to serve, at the request of the
Registrant, as a director or officer of another organization. Under this
provision, a director or officer of the Registrant shall be indemnified by
the Registrant for all costs and expenses (including attorneys' fees),
judgments, liabilities and amounts paid in settlement of such proceedings,
unless he is adjudicated in such proceedings not to have acted in good faith
and in the reasonable belief that his action was in the best interest of the
Registrant or, to the extent such matter relates to service with respect to
an employee benefit plan, in the best interest of the participants or
beneficiaries of such benefit plan. Any indemnification shall be made by the
Registrant unless a court of competent jurisdiction holds
II-1
<PAGE>
that the director or officer did not meet the standard of conduct set forth
above or the Registrant determines, by clear and convincing evidence, that
the director or officer did not meet such standard. Such determination shall
be made by the Board of Directors of the Registrant, based on advice of
independent legal counsel. The Registrant shall advance litigation expenses
to a director or officer at his request upon receipt of an undertaking by any
such director or officer to repay such expenses if it is ultimately
determined that he is not entitled to indemnification for such expenses. The
Registrant may, to the extent authorized from time to time by the Board of
Directors, grant indemnification rights to employees, agents or other persons
serving the Registrant.
Article VI of the Registrant's Restated Articles of Organization
eliminates the personal liability of the Registrant's directors to the
Registrant or its stockholders for monetary damages for breach of a
director's fiduciary duty, except that such Article VI does not eliminate or
limit any liability of a director (i) for any breach of a 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 61 or 62 of Chapter 156B of the Massachusetts
General Laws, or (iv) with respect to any transaction from which the
directors derived an improper personal benefit.
The Company maintains directors and officers liability insurance for the
benefit of its directors and certain of its officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index which is incorporated herein by reference.
Item 9. Undertakings.
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;
(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
and 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 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
II-2
<PAGE>
(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 (1)(i) and (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
section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
2. That, for the purpose of determining any liability under the
Securities Act, 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.
4. If the Registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any
financial statements required by Rule 3-19 at the start of any delayed
offering or throughout a continuous offering. Financial statements
and information otherwise required by Section 10(a)(3) of the
Securities Act need not be furnished, provided, that the Registrant
includes in the prospectus, by means of a post-effective amendment,
financial statements required pursuant to this paragraph 4 and other
information necessary to ensure that all other information in the
prospectus is at least as current as the date of those financial
statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need
not be filed to include financial statements and information required
by Section 10(a)(3) of the Securities Act or Rule 3-19 if such
financial statements and information are contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant
to section 13 or section 15(d) of the Exchange Act that are
incorporated by reference in the Form F-3.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Exchange Act) 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.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities 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 Securities Act and will be governed
by the final adjudication of such issue.
II-3
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of Friendly Ice Cream
Corporation, a corporation organized under the laws of the Commonwealth of
Massachusetts, and each of the undersigned directors and officers of Friendly
Ice Cream Corporation hereby constitutes and appoints Paul J. McDonald and
George G. Roller as its or his true and lawful attorneys-in-fact and agents,
for it or him and in its or his name, place and stead, in any and all
capacities, with full power to act alone, to sign any and all amendments to
this registration statement, and to file each such amendment to this
registration statement with all exhibits thereto, and any and all documents
in connection therewith, with the Securities and Exchange Commission, hereby
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform any and all acts and things requisite and
necessary to be done in and about the premises, as fully and to all intents
and purposes as it or he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, may
lawfully do or cause to be done by virtue hereof.
II-4
<PAGE>
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 Wilbraham, Commonwealth of
Massachusetts, on the 13th day of November 1997.
FRIENDLY ICE CREAM CORPORATION
By: /s/ George G. Roller
------------------------------
George G. Roller
Vice President, Finance,
Chief Financial Officer and Treasurer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated.
<TABLE>
<CAPTION>
Name Title (Capacity) Date
---- ---------------- ----
<S> <C> <C>
Chairman of the Board, Chief November 13, 1997
Executive Officer and President
/s/ Donald N. Smith (Principal Executive Officer
- ----------------------------- and Director)
Donald N. Smith
Vice President, Finance, Chief November 13, 1997
Financial Officer and Treasurer
/s/ George G. Roller (Principal Financial and Accounting
- ----------------------------- Officer)
George G. Roller
/s/ Charles A. Ledsinger, Jr.
- ----------------------------- Director November 13, 1997
Charles A. Ledsinger, Jr.
/s/ Steven L. Ezzes
- ----------------------------- Director November 13, 1997
Steven L. Ezzes
- ----------------------------- Director November , 1997
Barry Krantz
- ----------------------------- Director November , 1997
Gregory L. Segall
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
- ------- -----------------------
4.1 Restated Articles of Organization of the Registrant (Incorporated by
reference to Exhibit 3.1 to the Registrant's Registration Statement on
Form S-1 (File No. 333-34633))
4.2 Amended and Restated By-Laws of the Registrant, as amended (Incorporated
by reference to Exhibit 3.2 to the Registrant's Registration Statement on
Form S-1 (File No. 333-34633))
4.3 Specimen certificate evidencing the Common Stock of the Registrant
(Incorporated by reference to Exhibit 4.4 to the Registrant's Registration
Statement on Form S-1 (File No. 333-34633))
5.1 Opinion of Choate, Hall & Stewart regarding the validity of the offered
securities
10.1 The 1997 Stock Option Plan of the Registrant (Incorporated by reference to
Exhibit 10.3 to the Registrant's Registration Statement on Form S-1 (File
No. 333-34633))
23.1 Consent of Choate, Hall & Stewart (appears in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24 Powers of Attorney (appears on the page preceding the signature page of
this Registration Statement)
<PAGE>
Exhibit 5.1
November 13, 1997
Friendly Ice Cream Corporation
1855 Boston Road
Wilbraham, MA 01095
RE: Friendly Ice Cream Corporation
Registration Statement on Form S-8 for Stock Option Plan
--------------------------------------------------------
Dear Ladies and Gentlemen:
This opinion is delivered to you in connection with the registration
statement on Form
S-8 (the "Registration Statement") filed by Friendly Ice Cream Corporation (the
"Company") under the Securities Act of 1933, as amended (the "Act"), for
registration under the Act of 400,000 shares of common stock, $.01 par value
(the "Common Stock"), of the Company to be issued pursuant to the Company's
Stock Option Plan (the "Plan").
We have examined the Plan and the corporate records of the Company,
including its Articles of Organization, its By-Laws, and other corporate records
and documents and have made such other examinations as we consider necessary to
render this opinion. For purposes of our opinion, we have assumed (a) the
filing with the Secretary of The Commonwealth of Massachusetts of Restated
Articles of Organization of the Company which, among other things, increase the
number of authorized shares of Common Stock of the Company to 50,000,000 shares
and (b) the effectiveness of the 923.6442-for-one stock split described under
"Prospectus Summary" in the prospectus included in the Company's registration
statement on Form S-1 (File No. 333-34633) filed with the Securities and
Exchange Commission under the Act.
Based upon and subject to the foregoing, we are of the opinion that the
shares of Common Stock to be sold by the Company under the Plan, as in effect on
the date hereof, when issued against receipt of the purchase price therefor as
set forth in the Plan, will be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to all references to this firm in such Registration Statement.
Sincerely,
/s/ Choate, Hall & Stewart
CHOATE, HALL & STEWART
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated February 14,
1997 (except with respect to the matter discussed in Note 16 of Notes to
Consolidated Financial Statements, as to which the date is July 14, 1997)
included in Friendly Ice Cream Corporation's Form S-1 Registration Statement
File No. 333-34633.
Hartford, Connecticut
November 13, 1997
