<PAGE> 1
As filed with the Securities and Exchange Commission on May 2, 1996
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------
MAX & ERMA'S RESTAURANTS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 31-1041397
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
4849 Evanswood Drive
Columbus, Ohio 43229
(Address of Registrant's principal executive offices)
----------------------
MAX & ERMA'S RESTAURANTS, INC.
1996 EMPLOYEE INCENTIVE STOCK PURCHASE AND
MANAGER BONUS PLAN
(Full Title of the Plan)
----------------------
William C. Niegsch, Jr.
Executive Vice President, Chief Financial
Officer, Treasurer, and Secretary
Max & Erma's Restaurants, Inc.
4849 Evanswood Drive
Columbus, Ohio 43229
(614) 431-5800
(Name, address and telephone number of agent for service)
----------------------
Copies of Correspondence to:
Robert J. Tannous, Esq.
Porter, Wright, Morris & Arthur
41 South High Street
Columbus, Ohio 43215
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share* Price* Fee*
- --------------------------------------------------------------------------------------------------------------------
Common Stock,
<S> <C> <C> <C> <C>
$.10 par value................ 100,000 $7.50 $750,000 $259.00
- --------------------------------------------------------------------------------------------------------------------
<FN>
*Estimated solely for the purpose of calculating the registration fee pursuant
to Rule 457(h), based upon the average of the high and low prices of Max &
Erma's Common Stock as reported on the Nasdaq National Market on April 26, 1996.
</TABLE>
This Registration Statement shall be deemed to cover an indeterminate number of
additional shares of Max & Erma's Common Stock, $.10 par value, as may be
issuable pursuant to future stock dividends, stock splits or similar
transactions.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information concerning the Max & Erma's
Restaurants, Inc. 1996 Employee Incentive Stock Purchase and Manager Bonus Plan
(the "Plan"), specified in Part I will be sent or given to employees as
specified by Rule 428(b)(1). Such documents are not filed as part of this
Registration Statement in accordance with the Note to Part I of the Form S-8
Registration Statement.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and Exchange
Commission by the Registrant are hereby incorporated by reference:
1. Annual Report on Form 10-K for the year ended October 29, 1995;
2. Quarterly Report on Form 10-Q for the quarter ended February 18, 1996;
and
3. Proxy Statement for the Annual Meeting of Shareholders held on March
15, 1996.
The description of Max & Erma's Common Stock which is contained in Max &
Erma's Registration Statement on Form S-2 (SEC File No. 33-80090), filed with
the Securities and Exchange Commission pursuant to the Securities Act of 1933,
as amended, as updated in any amendment or report filed for the purpose of
updating such description, is hereby incorporated by reference.
All documents filed by Max & Erma's, pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended, after the date of
this Registration Statement and 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 a part hereof
from the date of filing of such documents. Any statement 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 or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
II-1
<PAGE> 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Article VII, Section 7 of the Registrant's Amended and Restated
Bylaws (the "Bylaws") provides that the Registrant shall indemnify its
directors, officers, employees, and agents to the extent permitted by the
General Corporation Law of Delaware (the "Delaware Law").
(b) Indemnification against expenses (including attorneys' fees)
actually and reasonably incurred by directors, officers, employees, and agents
is required under Section 145 of the Delaware Law in those cases where the
person to be indemnified has been successful on the merits or otherwise in
defense of a lawsuit. Indemnification is permitted in third party actions where
the indemnified party 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 in criminal
actions where he had no reasonable cause to believe his conduct was unlawful.
Indemnification is also permitted in lawsuits brought by or on behalf of the
corporation if the standards of conduct described above are met, except that no
indemnification is permitted in respect to any matter in which the person is
adjudged to be liable to the corporation unless a court shall determine that
indemnification is fair and reasonable in view of all the circumstances in the
case. In cases where indemnification is permissive, a determination as to
whether the person met the applicable standard of conduct must be made either by
the court, by disinterested directors, by independent legal counsel, or by the
stockholders. Such indemnification rights are specifically not deemed to be
exclusive of other rights of indemnification by agreement or otherwise and the
corporation is authorized to advance expenses incurred prior to the final
disposition of a matter upon receipt of an undertaking to repay such amounts on
a determination that indemnification was not permitted in the circumstances of
the case.
(c) The Registrant's stockholders, at a special meeting of the
stockholders held on September 9, 1986, ratified and approved indemnification
agreements entered into between the Registrant and each of its directors and to
be entered into between the Registrant and its future directors. The
indemnification agreements between the Registrant and each of its directors (i)
confirm the indemnity provided to a director by the Registrant's Bylaws, as
discussed above, and assure a director that this indemnity will continue to be
provided despite future changes in the Bylaws, and (ii) provide that a director
shall be indemnified to the fullest possible extent permitted by law against all
expenses, including attorneys' fees, judgements, fines and settlement amounts,
paid or incurred by him or her in any action or proceeding, including any action
by or in the right of the Registrant on account of his or her service as a
director or officer of the Registrant or as a director or officer of any other
company or enterprise when he or she is serving in such capacity at the request
of the Registrant. No indemnity will be provided under the indemnification
contract to any director on account of willful misconduct or conduct which is
adjudged to have been knowingly fraudulent or deliberately dishonest.
(d) Under Section 145 of the Delaware Law, the Registrant may purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee, or agent of the corporation, or who, while serving in such
capacity, is or was at the request of the corporation, a director, officer,
employee, or agent of another corporation or legal entity or of an employee
benefit plan, against liability asserted against or incurred by such person in
any such capacity whether or not the corporation would have the power to provide
indemnity under Section 145. The Registrant has obtained insurance which,
subject to certain retentions and exceptions, insures the directors and officers
of the Registrant up to a maximum of $5,000,000 (subject to certain exclusions)
in each policy year because of any claim or claims made against them by reason
of their wrongful acts while acting in their capacities as such directors and
officers. The Registrant is insured, subject to certain retentions and
exceptions, to the extent it shall have indemnified the directors and officers
for such loss.
(e) Article Thirteenth of the Registrant's Restated Certificate of
Incorporation, as amended (the "Certificate of Incorporation"), provides that
the directors 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) for any unlawful payment of a dividend or unlawful stock purchase or
redemption; or (iv) for any transaction from which the director derived any
improper personal benefit.
II-2
<PAGE> 4
The above discussion of the Registrant's Bylaws, Certificate of
Incorporation, and indemnification agreements and of Section 145 of the Delaware
Law is not intended to be exhaustive and is respectively qualified in its
entirety by such Bylaws, Certificate of Incorporation, indemnification
agreements, and statutes.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Reference is made to the information contained in the Exhibit Index
filed as part of this Registration Statement.
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 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 (1)(i) and (1)(ii) do not apply if
the Registration Statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 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.
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 Section 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.
II-3
<PAGE> 5
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.
II-4
<PAGE> 6
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 Columbus, State of Ohio, on May 1, 1996.
MAX & ERMA'S RESTAURANTS, INC.
By: /s/ William C. Niegsch, Jr.
--------------------------------------------------------
William C. Niegsch, Jr., Executive Vice President, Chief
Financial Officer, Treasurer, and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
*Todd B. Barnum President, Chief Executive Officer, and ) May 1, 1996
- --------------------------------------------- Chairman of the Board of Directors) )
Todd B. Barnum (Principal Executive Officer) )
)
)
/s/ William C. Niegsch, Jr. Executive Vice President, Chief Financial ) May 1, 1996
- --------------------------------------------- Officer, Treasurer, Secretary, and )
William C. Niegsch, Jr. Director )
(Principal Financial Officer and )
Principal Accounting Officer) )
)
)
)
*Mark F. Emerson Chief Operating Officer and Director ) May 1, 1996
-------------------------------------------- )
Mark F. Emerson )
)
)
*Karen A. Brennan Vice President of Marketing and Director ) May 1, 1996
- --------------------------------------------- )
Karen A. Brennan )
)
)
*William A. Arthur Director ) May 1, 1996
- --------------------------------------------- )
William A. Arthur )
)
)
*Roger D. Blackwell Director ) May 1, 1996
- --------------------------------------------- )
Roger D. Blackwell )
)
)
*Donald W. Kelley Director ) May 1, 1996
- --------------------------------------------- )
Donald W. Kelley )
</TABLE>
II-5
<PAGE> 7
<TABLE>
<CAPTION>
<S> <C> <C>
*Michael D. Murphy Director ) May 1, 1996
- --------------------------------------------- )
Michael D. Murphy )
)
)
*Robert A. Rothman Director ) May 1, 1996
- --------------------------------------------- )
Robert A. Rothman )
)
)
*By: /s/ William C. Niegsch, Jr.
-----------------------------------------
William C. Niegsch, Jr., attorney-in-fact
for each of the persons indicated
</TABLE>
II-6
<PAGE> 8
Registration No. 333-_______
-----------------------------------------------------------------------
-----------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------------------
MAX & ERMA'S RESTAURANTS, INC.
-------------------------------------
EXHIBITS
-------------------------------------
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
Pagination By
Sequential
Exhibit Exhibit Numbering
Number Description System
- ------ ----------- ------
<S> <C> <C>
4(a) * Max & Erma's Restaurants, Inc. 1996 Employee Incentive Stock
Purchase and Manager Bonus Plan.
4(b) Restated Certificate of Incorporation of Max & Erma's
Restaurants, Inc., Exhibit 4(c) to Form 10-Q, filed on June
26, 1985, and incorporated herein by reference.
4(c) Amended and Restated Bylaws of Max & Erma's Restaurants,
Inc., Exhibit 4(d) to Form 10-Q filed on June 26, 1985, and
incorporated herein by reference.
4(d) Certificate of Amendment of Certificate of Incorporation,
Exhibit 3(c) to Form 10-K filed on January 23, 1987, and
incorporated herein by reference.
4(e) Certificate of Amendment of Certificate of Incorporation,
Exhibit 3(d) to Form 10-K filed on January 25, 1991, and
incorporated herein by reference.
4(f) Form of Common Stock Certificate, Exhibit 4(a) to Form S-1
Registration Statement (File 2-85585), as amended, and
incorporated herein by reference.
4(g) Indenture dated as of August 18, 1994, between Max & Erma's
Restaurants, Inc. and The Huntington National Bank, as
trustee with respect to the 9-1/2% Subordinated Convertible
Debentures (the "Debentures"), Exhibit 4(a) to Form S- 2
Registration Statement (File No. 80090), as amended, and
incorporated herein by reference.
4(h) Form of Debenture, Exhibit 4(b) to Form S-2 Registration Statement
(File No. 33-80090), as amended and incorporated herein by
reference.
5 * Opinion of Porter, Wright, Morris & Arthur regarding legality.
23(a) Consent of Porter, Wright, Morris & Arthur.
23(b) * Consent of Deloitte & Touche LLP.
24 * Powers of Attorney.
- --------------------
<FN>
* Filed with this Registration Statement
</TABLE>
-2-
<PAGE> 1
MAX & ERMA'S RESTAURANTS, INC.
--------------------------
Exhibit 4(a)
--------------------------
<PAGE> 2
MAX & ERMA'S RESTAURANTS, INC.
1996 EMPLOYEE INCENTIVE STOCK PURCHASE AND MANAGER BONUS PLAN
SECTION 1. DEFINITIONS.
"Bonus" means the quarterly bonus paid to Eligible General Managers who
are selected by the Board or Committee to receive a Bonus under the Plan. The
Bonus amount shall be determined quarterly by the Board or Committee for
Eligible General Managers selected by the Board or Committee.
"Bonus Pay Date" means the 19th day after the last day of a fiscal
quarter. The cash portion of Bonuses, if any, will be paid on the Bonus Pay Date
and the Share portion, if any, will be delivered as soon as possible after the
Bonus Pay Date.
"Board" means the Board of Directors of the Company.
"Committee" refers to the Committee designated by the Board to
administer the Plan, if the Board elects to designate such a committee.
"Company" means Max & Erma's Restaurants, Inc., a Delaware corporation.
"Effective Date" means October 30, 1995.
"Eligible Employees" means only those employees of the Company who on
an Offering Date:
(i) are selected by the Board or the Committee to participate in
an Offering, and
(ii) are not directors or officers of the Company.
"Eligible General Managers" means those General Managers who have
completed at least one fiscal quarter of service as a General Manager.
"Expiration Date" means the day on which an Offering shall expire. The
Expiration Date is the 19th day from the Offering Date. Shares purchased by
Eligible Employees will be delivered as soon as possible after the Expiration
Date and after the Purchase Price has been paid in full.
"General Manager" means those Employees of the Company who serve as
general managers of the Company's restaurants.
"Holding Period" means eighteen (18) months from the Expiration Date or
Bonus Pay Date.
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<PAGE> 3
"Offering" means the offering of Shares to Eligible Employees pursuant
to the Plan that occurs on each Offering Date.
"Offering Date" means the first day of each fiscal quarter during any
Plan Year when an Offering commences.
"Participant" means an Eligible Employee who elects to participate in
the Plan or an Eligible General Manager.
"Plan" means the Max & Erma's Restaurants, Inc. 1996 Employee Incentive
Stock Purchase and Manager Bonus Plan.
"Plan Administrator" means the officer of the Company selected by the
Board or Committee to administer the Plan.
"Plan Year" means the Company's fiscal year, except that the first Plan
Year will begin on the Effective Date and will end October 27, 1996.
"Purchase Price" means the Purchase Price per Share as determined in
accordance with Section 8 hereof. Shares issued to Eligible Employees will be
delivered as soon as possible after the Purchase Price has been paid in full.
"Shares" means shares of the Company's common stock, $.10 par value.
SECTION 2. PURPOSE AND EFFECT.
The Plan provides Eligible Employees and Eligible General Managers with
an opportunity to purchase Shares and is intended as an employment incentive and
to encourage stock ownership in order to enhance the Company's economic
progress.
SECTION 3. ADMINISTRATION OF THE PLAN.
The Plan will be administered by the Plan Administrator. The Board or
the Committee will have authority to make rules and regulations for the
administration of the Plan, and the Board's or the Committee's interpretations
and decisions with regard to the Plan will be final and conclusive.
SECTION 4. SHARES TO BE MADE AVAILABLE UNDER THE PLAN.
Subject to adjustment in accordance with Section 17 hereof, 100,000
Shares are made available under the Plan for sale to and purchase by Eligible
Employees and Eligible General Managers.
-2-
<PAGE> 4
SECTION 5. ELIGIBLE EMPLOYEE OFFERING.
Each Eligible Employee on an Offering Date will be entitled to
purchase, in the manner and on the terms herein provided, the number of Shares
determined by the Board or the Committee at the Purchase Price set forth in
Section 8 below.
SECTION 6. ELIGIBLE EMPLOYEE ENTRY INTO PLAN; PAYMENT FOR SHARES.
The Plan Administrator will notify all Eligible Employees the terms of
Offerings as established by the Board or Committee from time to time. Any
Eligible Employee may become a Participant in the Plan by, prior to the
Expiration Date of an Offering, notifying the Plan Administrator of such
Eligible Employee's election to participate in the Plan. Payment for Shares by
Eligible Employees will be made via payroll deductions and Shares will not be
issued until the Purchase Price is paid in full.
SECTION 7. ELIGIBLE MANAGER BONUS.
If an Eligible General Manager is selected by the Board or Committee to
receive a Bonus under the Plan, the Plan Administrator will notify him or her of
the terms of the Bonus. The Board or the Committee will determine what minimum
portion of the Bonus, if any, will be payable in Shares. Eligible General
Managers will determine the portions of the remainder, if any, that they desire
to be paid in Shares. If an Eligible General Manager desires to have a portion
of the remainder part of his or her bonus paid in Shares, the Eligible General
Manager should indicate that decision to the Plan Administrator prior to the
Bonus Pay Date. The Share portion of the Bonus will be paid in the number of
Shares at the Purchase Price that equals the total Bonus less the amount of the
Bonus paid in cash. For Example, if an Eligible General Manager's Bonus is
$1,500.00 and the Board determines that one half of the Bonus should be paid in
Shares, and the closing price for Shares on the last business day of the quarter
was $10.00, the Eligible General Manager would receive a check for $750.00 and
150 Shares ($750/($10.00 x 50%)).
SECTION 8. PURCHASE PRICE.
The Purchase Price per Share sold to Participants in any Offering or
granted as part of a Bonus shall be 50% of the market price of the Shares. For
purposes of the Plan the market price for the Shares is the closing price on the
last business day of the Company's most recently completed fiscal quarter.
SECTION 9. RIGHTS NOT TRANSFERABLE; RESTRICTION ON SHARES.
Rights to purchase or receive Shares under the Plan run only to
Participants and are not transferable by Participants. The Shares issued under
this Plan are restricted and may not be transferred by a Participant until the
Holding Period has expired. The certificates representing Shares issued under
the Plan will bear a restrictive legend indicating that they may not be
transferred until the Holding Period has expired.
-3-
<PAGE> 5
SECTION 10. COMPLIANCE WITH LAWS AND REGULATIONS.
The Plan, and the obligation of the Company to sell and/or deliver the
Shares under the Plan, will be subject to all applicable federal and state laws,
rules and regulations and to such approvals by any government or regulatory
agency as may be required. Shares may not be issued under this Plan prior to (i)
the date upon which the Company has registered the Shares to be issued under the
Securities Act of 1933, as amended (the "1933 Act"), and the completion of any
registration or qualification of such Shares under state law, or any ruling or
regulation of any government body which the Company, in its sole discretion,
determines to be necessary or advisable in connection therewith, or (ii) receipt
by the Company of an opinion from counsel to the Company stating that the
issuance of such Shares may be effected without registering the Shares under the
1933 Act or under state or other law.
11. NO CONTRACT OF EMPLOYMENT.
Nothing in the Plan confers on any Participant any right to continue in
the employment or service of the Company or any parent or subsidiary of the
Company or interfere with the right of the Company to terminate such
Participant's employment or other services at any time. The establishment of the
Plan will in no way, now or hereafter, reduce, enlarge or modify the employment
relationship between the Company or any parent or subsidiary of the Company and
the Participant.
12. ASSUMPTION.
The Plan may be assumed by the successors and assigns of the Company.
13. EXPENSES.
The Company will bear all expenses and costs in connection with
administration of the Plan.
14. AMENDMENT, MODIFICATION AND TERMINATION OF THE PLAN.
The Board or the Committee may terminate, amend or modify the Plan at
any time.
15. LIMITATION OF LIABILITY.
The liability of the Company under this Plan is limited to the
obligations expressly set forth in the Plan, and no term or provision of this
Plan will be construed to impose any further or additional duties, obligations
or costs on the Company not expressly set forth in the Plan.
16. REORGANIZATIONS.
If a stock split, stock dividend, combination or exchange of shares,
exchange for other securities, reclassification, reorganization, redesignation
or other change in the Company's
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<PAGE> 6
capitalization occurs, the Board or the Committee will proportionately adjust or
substitute the aggregate number of Shares which may be granted under this Plan.
The Board or the Committee will make such other adjustments to the Plan as may
be appropriate and equitable.
17. TERMINATION.
If an Eligible Employee's employment with the Company is terminated for
any reason prior to an Expiration Date, the Offering to that Eligible Employee
will automatically terminate.
If an Eligible General Manager's employment with the Company is
terminated for any reason, he or she will not be entitled to a Bonus for the
quarter in which his or her employment terminated. If an Eligible General
Manager's employment with the Company is terminated for any reason during the
period between the end of a fiscal quarter and the Bonus Pay Date for that
fiscal quarter, he or she will receive their Bonus, if entitled to one, on the
Bonus Pay Date.
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<PAGE> 1
MAX & ERMA'S RESTAURANTS, INC.
----------------------------
Exhibit 5
----------------------------
<PAGE> 2
May 1, 1996
Max & Erma's Restaurants, Inc.
4849 Evanswood Drive
Columbus, Ohio 43229
Re: Registration Statement on Form S-8
Max & Erma's Restaurants, Inc. 1996 Employee Incentive Stock
Purchase and Manager Bonus Plan (the "Plan")
Gentlemen:
We have acted as counsel for Max & Erma's Restaurants, Inc., a Delaware
corporation ("Max & Erma's"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement"), filed by Max & Erma's with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
with respect to the registration of an additional 100,000 shares of Max & Erma's
Common Stock, $.10 par value (the "Shares"), to be issued under the Plan.
In connection with this opinion, we have examined such corporate
records, documents and other instruments of the registrant as we have deemed
necessary.
Based on the foregoing, we are of the opinion that the Shares will,
when issued and paid for in accordance with the provisions of the Plan, be
legally issued, fully paid and nonassessable, and entitled to the benefits of
the Plan.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Porter, Wright, Morris & Arthur
PORTER, WRIGHT, MORRIS & ARTHUR
<PAGE> 1
MAX & ERMA'S RESTAURANTS, INC.
---------------------
Exhibit 23(b)
---------------------
<PAGE> 2
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in these Registration Statements
of Max & Erma's Restaurants, Inc. on Form S-8 of our report dated December 11,
1995 appearing in the Annual Report on Form 10-K of Max & Erma's Restaurants,
Inc. for the year ended October 29, 1995.
DELOITTE & TOUCHE LLP
Columbus, Ohio
April 29, 1996
<PAGE> 1
MAX & ERMA'S RESTAURANTS, INC.
---------------------
Exhibit 24
---------------------
<PAGE> 2
EXHIBIT 24
POWER OF ATTORNEY
-----------------
Each of the undersigned officers and directors of Max & Erma's
Restaurants, Inc. (the "Corporation"), hereby appoints Todd B. Barnum and
William C. Niegsch, Jr., as his attorneys or either of them, with power to act
without the others, as his attorney, to sign, in his name and on his behalf and
in any and all capacities stated below, and to cause to be filed with the
Securities and Exchange Commission (the "Commission"), the Corporation's
Registration Statement on Form S-8 (the "Registration Statement") for the
purpose of registering under the Securities Act of 1933, as amended, 100,000
shares of Common Stock, $.10 par value, to be sold and distributed by the
Corporation pursuant to the Corporation's 1996 Employee Incentive Stock Purchase
and Manager Bonus Plan (the "Plan") and such other number of shares as may be
issued under the anti-dilution provisions of the Plan, and any and all
amendments, including post-effective amendments, to the Registration Statement,
hereby granting unto such attorneys and each of them, individually, full power
and authority to do and perform in the name and on behalf of the undersigned,
and in any and all such capacities, every act and thing whatsoever necessary to
be done in and about the premises as fully as the undersigned could or might do
in person, hereby granting to each such attorney-in-fact full power of
substitution and revocation, and hereby ratifying all that any such
attorney-in-fact or his substitute may do by virtue hereof.
IN WITNESS WHEREOF, the undersigned have signed these presents this
16th day of April, 1996.
<TABLE>
<CAPTION>
<S> <C>
/s/ Todd B. Barnum President, Chief Executive Officer, and Chairman of the
- -------------------------------------- Board (Principal Executive Officer)
Todd B. Barnum
/s/ William C. Niegsch, Jr. Executive Vice President, Chief Financial Officer,
- -------------------------------------- Treasurer, Secretary, and Director (Principal Financial
William C. Niegsch, Jr. Officer and Principal Accounting Officer)
/s/ Mark F. Emerson Chief Operating Officer and Director
- --------------------------------------
Mark F. Emerson
/s/ Karen A. Brennan Vice President of Marketing and Director
- --------------------------------------
Karen A. Brennan
/s/ William E. Arthur Director
- --------------------------------------
William E. Arthur
/s/ Roger D. Blackwell Director
- --------------------------------------
Roger D. Blackwell
/s/ Donald W. Kelley Director
- --------------------------------------
Donald W. Kelley
</TABLE>
<PAGE> 3
/s/ Micheal D. Murphy Director
- --------------------------------------
Michael D. Murphy
/s/ Robert A. Rothman Director
- --------------------------------------
Robert A. Rothman
-2-
