As filed with the Securities and Exchange Commission on May 3, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PIZZA INN, INC.
(Exact name of registrant as specified in its charter)
Missouri 47-0654575
(State of incorporation) (I.R.S. Employer Identification Number)
Pizza Inn, Inc.
5050 Quorum Drive
Suite 500
Dallas, Texas 75240
(Address, including zip code, of principal executive offices)
1993 Stock Award Plan
(Full title of plan)
B. Keith Clark
Pizza Inn, Inc.
5050 Quorum Drive
Suite 500
Dallas, Texas 75240
(Name and address of agent for service)
(972) 701-9955
(Telephone number, including area code, of agent for service)
Copy to:
Patrick J. Respeliers
Morrison & Hecker L.L.P.
2600 Grand Avenue
Kansas City, Missouri 64108
(816) 691-2600
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
======================= ================ ================== ================== ================
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
To be Registered Registered<F1> Offering Price Aggregate Registration
Per Share <F2> Offering Price Fee
======================= ================ ================== ================== ================
<S> <C> <C> <C> <C>
Shares of Common Stock 737,000 $3.4375 $2,533,437.50 $ 704.30
15,000 $4.1250 $ 61,875.00 $ 17.20
5,000 $4.2500 $ 21,250.00 $ 5.91
Total 60,000 $4.8750 $ 292,500.00 $ 81.32
30,000 $5.2500 $ 157,500.00 $ 43.79
153,000 $5.0000 $ 765,000.00 $ 212.67
-- ------- ------------ --------
1,000,000 $3,831,562.50 $1,065.19
======================= ================ ================== ================== ================
<FN>
<F1>In the event of a stock split, stock dividend, or similar transaction
involving the common stock of the Corporation (the "Shares"), the number of
Shares registered hereby shall automatically be increased to cover such
additional Shares as may be issued, in accordance with Rule 416(a) under the
Securities Act of 1933, as amended (the "Securities Act").
<F2>Computed pursuant to Rule 457(h) under the Securities Act.
</FN>
</TABLE>
<PAGE>
EXPLANATORY NOTE
3,200,000 shares of Common Stock of the registrant were previously
registered under Registration Statement No. 33-71700 in connection with awards
to be made pursuant the registrant's 1992 Stock Award Plan, 1993 Stock Award
Plan and 1993 Outside Directors Stock Award Plan. An additional 1,000,000 shares
of the Common Stock of the registrant are being registered hereunder in
connection with awards to be made under the registrant's 1993 Stock Award Plan.
Pursuant to Rule 429 under the Securities Act, the Reoffer Prospectus which is
filed as a part of this Registration Statement updates each Prospectus included
in Post-Effective Amendment No. One to Registration Statement No. 33-71700,
filed on November 15, 1993, and Post-Effective Amendment No. Two to Registration
Statement No. 33-71700, filed on January 26, 1996. The Reoffer Prospectus which
is filed as a part of this Registration Statement applies to all 4,200,000
shares registered in connection with awards to be made pursuant to the plans.
The Reoffer Prospectus has been prepared in accordance with the requirements of
Part I of Form S-3 and may be used for reoffers or resales of the shares of
Common Stock of the registrant acquired by "affiliates" (as such term is defined
in Rule 405 of the General Rules and Regulations under the Securities Act of
1933, as amended) pursuant to the exercise of options under the plans.
<PAGE>
Pizza Inn, Inc.
REOFFER Prospectus
4,200,000 Shares of Common Stock
(par value $0.01 per share)
This prospectus relates to the offer and sale of shares of our common
stock that the selling stockholders described in this prospectus may offer for
their own benefit. We will receive none of the proceeds from the sale of the
shares. We will pay all expenses of registration incurred in connection with
this offering, but the selling stockholders will pay all selling and other
expenses they incur.
The selling stockholders will acquire the common stock when they
exercise options granted to them under our 1992 Stock Award Plan, our 1993 Stock
Award Plan and our 1993 Outside Directors Stock Award Plan. We cannot currently
determine the exact number of shares of common stock which the selling
stockholders may acquire, and the number of such shares which may be reoffered
and resold pursuant to this prospectus.
We list our Common Stock on the NASDAQ system under the symbol "PZZI".
On April 28, 1999, the last reported price of Common Stock on the NASDAQ system
was $3.50.
See "Risk Factors" beginning on page 2 for a discussion
of the material risks involved in investing in our securities.
This prospectus is not an offer to sell the securities and it is not
soliciting any offer to buy the securities in any state where the offer and sale
is not permitted. Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary
is a criminal offense.
The date of this Reoffer Prospectus is May 3, 1999
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TABLE OF CONTENTS
Page
----
Risk Factors............................................ 2
The Corporation......................................... 3
Selling Stockholders.................................... 3
Use of Proceeds......................................... 5
Plan of Distribution.................................... 5
Where You Can Find More Information..................... 5
RISK FACTORS
Before you invest in our common stock, you should carefully consider the
risks involved. The following is a summary of several risk factors associated
with an investment in our common stock.
We May Not Be Able To Obtain Additional Financing
Because substantially all of our assets are pledged to secure our
obligations under our bank loan agreement, additional financing may not be
available. Additionally, we will need portions of our cash flow to repay loans
and other obligations. Therefore, cash generated from ongoing operations must
generally supply any additional cash needs.
Our debt is secured by all of our assets. Such debt may leave us
vulnerable to certain risks, including:
o possible unavailability of additional financing in the future for
working capital, capital expenditures or other purposes; and
o possible increases in interest expense due to the variable interest
rates on the indebtedness.
Our Industry Is Highly Competitive
The restaurant business is highly competitive and susceptible to changes
in the eating preferences of the public. There are many pizza restaurants and
our franchisees have numerous competitors in the restaurant and food service
business. Some of those competitors have greater name recognition and are better
capitalized than us and offer alternative menu items at equivalent prices.
We Are Dependent On Our President
We are dependent in part upon the services of Mr. C. Jeffrey Rogers, the
President and Chief Executive Officer. He is also a principal shareholder. Our
banks can require us to repay our loan if Mr. Rogers does not own at least 15%
of our common stock.
We Are Dependent On Franchisees To Select Qualified Managers
Almost all of our restaurants are operated by franchisees. Although we
select qualified and experienced franchisees, the franchisees are responsible
for hiring and training qualified managers for their restaurants. Restaurant
success depends on experienced and competent managers. If our franchisees do not
select qualified managers, our operating results could be adversely affected.
Net Operating Loss Carryforwards
We have developed a business plan that includes using the net operating
losses currently held by us for tax purposes. We believe that we benefit
substantially from the current and future use of net operating loss
carry-forwards to reduce federal income tax liability. However, we cannot be
certain that we will be able to fully use the net operating losses for tax
purposes.
2
<PAGE>
THE CORPORATION
General
Pizza Inn, Inc., a Missouri corporation incorporated in 1983, is the
successor to a Texas company of the same name which was incorporated in 1961. We
are the franchisor and food and supply distributor to a system of restaurants
operating under the trade name "Pizza Inn".
On April 20, 1999, the Pizza Inn system consisted of 512 units, including
three units operated by us (for product testing and franchisee training, and
serving customers) and 509 franchised units. The domestic units are comprised
of:
o 281 full service units;
o 46 delivery/carry-out units; and
o 128 Express units.
The international units are comprised of:
o 19 full service units;
o 23 delivery/carry-out units; and
o 15 Express units.
Pizza Inn units are currently located in 22 states and 14 foreign
countries. Domestic units are located predominantly in the southern half of the
United States. Norco Manufacturing and Distributing Company, a division of the
Company, distributes food products, equipment, and other supplies to units in
the United States and, to the extent feasible, in other countries.
Our executive offices are located at 5050 Quorum Drive, Suite 500,
Dallas, Texas 75240 and our telephone number is (972) 701-9955.
SELLING STOCKHOLDERS
The selling stockholders have or will acquire the shares of common stock
offered under this prospectus when they exercise options granted by us pursuant
to the plans.
The following table shows as of April 23, 1999:
o the name of each selling stockholder and his or her position
during the past three years;
o the number of shares he or she beneficially owned on April 23,
1999;
o the maximum number of shares of common stock that he or she may
acquire pursuant to the plans and offer for resale under this
prospectus as of the date of this prospectus; and
o the number of shares and percentage of common stock that he or
she will own assuming sale of the maximum number of shares to be
acquired pursuant to the plans and offered for sale pursuant to
this prospectus.
3
<PAGE>
<TABLE>
<CAPTION>
Shares
(Including All Shares
Shares Subject Acquired or
to Options) Expected to Shares Percentage of
Owned on Be Acquired to be Shares to be
Name and Position(s) April 23 Pursuant to Plan Owned after Owned after
with Pizza Inn, Inc. 1999<F1> Options Offering Offering
---------------------------- --------------- --------- ------------- --------
<S> <C> <C> <C> <C>
C. Jeffrey Rogers 4,234,819 1,460,000 2,774,819 21.5%
President, Vice Chairman and
Chief Executive Officer
Ronald W. Parker 1,371,465 1,023,500 347,965 2.8%
Executive Vice President and
Chief Operating Officer
B. Keith Clark 33,594 61,500 6,091 *
General Counsel and Secretary
Dennis L. Essary 19,137 29,500 9,386 *
Vice President of
Norco Operations
Bradford S. Lucky 20,000 58,500 -- *
Vice President of Marketing
William R. Miniat 8,895 29,500 2,145 *
Director of Sales--Norco Division
Ward T. Olgreen 73,869 76,500 30,535 *
Vice President of Concept
Development
Shawn M. Preator 17 3,500 17 *
Controller and Treasurer
Robert L. Soria 25,892 42,000 4,892 *
Vice President Restaurant
Development
Karen A. Steinbach 22,552 70,000 3,052 *
Vice President of Franchise
Operations and Training
<FN>
<F1> The number of shares shown includes the shares actually owned as of
April 23, 1999 and the shares that the listed person had the right to
acquire within 60 days of April 23, 1999 pursuant to the exercise of
stock options or conversion of securities.
</FN>
* Less than 1%.
</TABLE>
The preceding table reflects all selling stockholders who are eligible
to reoffer and resell shares, whether or not they intend to do so. We cannot
assure you that any of the selling stockholders will sell any or all of the
shares offered by them hereunder. The inclusion in the foregoing table of the
individuals named therein shall not be deemed to be an admission that any such
individuals are "affiliates" of the Company.
We may amend this prospectus to add or delete selling stockholders.
4
<PAGE>
USE OF PROCEEDS
Any shares of common stock sold under this prospectus will be sold by
the selling stockholders for their own accounts and they will receive all
proceeds from any such sales. We will receive none of the proceeds from the sale
of shares which may be offered but will receive funds upon the exercise of the
options pursuant to which the selling stockholders will acquire the shares
covered by this prospectus. These funds will be used for working capital
purposes.
PLAN OF DISTRIBUTION
The selling stockholders have not advised us of any specific plans for
the distribution of the shares of common stock covered by this prospectus, but,
if and when shares are sold, we anticipate that the shares will be sold from
time to time primarily in transactions on the NASDAQ National Market at the
prevailing market price. However, sales may also be made in negotiated
transactions at prices related to prevailing market price or at other prices. If
shares of common stock are sold through brokers, the selling stockholders may
pay customary brokerage commissions and charges. The selling stockholders may
effect such transactions by selling shares to or through broker-dealers, and
such broker-dealers may receive compensation in the form of discounts,
concessions or commissions from the selling stockholders and/or the purchasers
of shares for whom such broker-dealers may act as agent or to whom they may sell
as principal, or both (which compensation as to a particular broker-dealer might
be in excess of customary commission). The selling stockholders and any
broker-dealers that act in connection with the sale of the shares hereunder
might be deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act of 1933, and any commissions received by them and any profit on
the resale of shares as principal might be deemed to be underwriting discounts
and commissions under the Securities Act.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission. You may read our
SEC filings over the Internet at the SEC's website at http:\\www.sec.gov. You
may also read and copy documents at the SEC's public reference rooms in
Washington, D.C., New York, New York and Chicago, Illinois. Please call the SEC
at 1-800-SEC-0330 for further information on the public reference rooms.
We provide you with an annual report within 90 days after the close of
our fiscal year. The annual report contains audited financial statements and a
related report by our independent public accountants.
Our common stock is listed and traded on the NASDAQ National Market. You
can read and copy information about us at the NASD's offices at its Market
Listing Qualifications Department, 1735 "K" Street, N.W., Washington, D.C.
20006-1500.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose to you important information
contained in other documents filed with the SEC by referring you to those
documents. The information incorporated by reference is an important part of
this prospectus. Information we later file with the SEC will automatically
update and supersede this information. We incorporate by reference the documents
listed below:
(1) Our Annual Report on Form 10-K, as amended, for the fiscal year ended June
28, 1998 (the "Form 10-K");
(2) Our Quarterly Reports on Form 10-Q for the periods ended September 27, 1998
and December 27, 1998.
(3) All other reports filed by us pursuant to Section 13(a) and 15(d) of the
Exchange Act since the end of our fiscal year ended June 28, 1998;
(4) The description of our common stock has been incorporated by reference to
our Registration Statement on Form S-1 (as filed with the Securities and
Exchange Commission on January 23, 1991, File No. 33-38729).
5
<PAGE>
We also incorporate by reference all documents we have filed under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
prospectus and prior to the filing of a post-effective amendment indicating that
all securities offered have been sold or deregistering all securities still
unsold.
If information in incorporated documents conflicts with information in
this prospectus you should rely on the most recent information. If information
in an incorporated document conflicts with information in another incorporated
document, you should rely on the most recent incorporated document.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Pizza Inn, Inc.
5050 Quorum Drive
Suite 500
Dallas, Texas 75240
Attention: Corporate Secretary
(972) 701-9955
You should only rely on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. The selling stockholders
are making offers of the securities only in states where the offer is permitted.
You should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
6
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the SEC pursuant to
the Exchange Act are incorporated in this Registration Statement by reference:
(1) Our Annual Report on Form 10-K, as amended, for the fiscal year ended June
28, 1998 (the "Form 10-K");
(2) Our Quarterly Reports on Form 10-Q for the periods ended September 27, 1998
and December 27, 1998;
(3) All other reports filed by the Company pursuant to Section 13(a) and 15(d)
of the Exchange Act since the end of the Company's fiscal year ended June
28, 1998;
(4) The description of the common stock has been incorporated by reference to
the Company's Registration Statement on Form S-1 (as filed with the
Securities and Exchange Commission on January 23, 1991, File No.
33-38729).
Item 4. Description of Securities.
Not applicable, the shares are registered under Section 12 of the
Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Revised Statutes of Missouri, Chapter 351, General Business
Corporations, Section 351.355, provides as follows:
1. A corporation created under laws of this state may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit, or proceeding, whether civil,
criminal, administrative or investigative, other than an action by or in the
right of the corporation, by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses, including attorneys' fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit, or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
2. The corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including attorneys' fees,
and amounts paid in settlement actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interest of the corporation; except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the performance of his
duty to the corporation unless and only to the extent that the court in which
the action or suit was brought determines upon application that, despite the
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adjudication of liability and in view of all the circumstances of the case, the
person is fairly and reasonably entitled to indemnity for such expenses which
the court shall deem proper.
3. To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit, or proceeding referred to in subsections 1 and 2 of this section,
or in defense of any claim, issue or matter therein, he shall be indemnified
against expenses, including attorneys' fees, actually and reasonably incurred by
him in connection with the action, suit, or proceeding.
4. Any indemnification under subsections 1 and 2 of this section, unless
ordered by a court, shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in this section. The determination
shall be made by the board of directors by a majority vote of a quorum
consisting of directors who were not parties to the action, suit or proceeding,
or if such a quorum is not obtainable, or even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or by the shareholders.
5. Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
the action, suit, or proceeding as authorized by the board of directors in the
specific case upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent to repay such amount unless it shall ultimately be
determined that he is entitled to be indemnified by the corporation as
authorized in this section.
6. The indemnification provided by this section shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under the articles of incorporation or bylaws or any agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
7. A corporation created under the laws of this state shall have the
power to give any further indemnity, in addition to the indemnity authorized or
contemplated under other subsections of this section, including subsection 6, to
any person who is or was a director, officer, employee or agent, or to any
person who is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, provided such further indemnity is either (i)
authorized, directed, or provided for in the articles of incorporation of the
corporation or any duly adopted amendment thereof or (ii) is authorized,
directed, or provided for in any bylaw or agreement of the corporation which has
been adopted by a vote of the shareholders of the corporation, and provided
further that no such indemnity shall indemnify any person from or on account of
such person's conduct which was finally adjudged to have been knowingly
fraudulent, deliberately dishonest or willful misconduct. Nothing in this
subsection shall be deemed to limit the power of the corporation under
subsection 6 of this section to enact bylaws or to enter into agreements without
shareholder adoption of the same.
8. The corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of this section.
9. Any provision of this chapter to the contrary notwithstanding, the
provisions of this section shall apply to all existing and new domestic
corporations, including but not limited to banks, trust companies, insurance
companies, building and loan associations, savings bank and safe deposit
companies, mortgage loan companies, corporations formed for benevolent,
religious, scientific or educational purposes and nonprofit corporations.
10. For the purpose of this section, references to `the corporation'
include all constituent corporations absorbed in a consolidation or merger as
well as the resulting or surviving corporation so that any person who is or was
a director, officer, employee or agent of such a constituent corporation or is
or was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust
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or other enterprise shall stand in the same position under the provisions of
this section with respect to the resulting or surviving corporation as he would
if he had served the resulting or surviving corporation in the same capacity.
11. For purposes of this section, the term `other enterprise' shall
include employee benefit plans; the term `fines' shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and the term
`serving at the request of the corporation' shall include any service as a
director, officer, employee or agent of the corporation which imposes duties on,
or involves services by, such director, officer, employee, or agent with respect
to an employee benefit plan, its participants, or beneficiaries; and a person
who acted in good faith and in a manner he reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner `not opposed to the best interests of the
corporation' as referred to in this section.
Article XI of the Corporation's Restated Articles of Incorporation
provides as follows:
11.1 The Corporation may agree to the terms and conditions upon which
any director or officer accepts his office or position and in its By-laws or by
contract may agree to indemnify and protect each and all of such persons and any
person who, at the request of the Corporation served as a director or officer of
another Corporation in which this Corporation owned stock against all costs and
expenses reasonably incurred by any or all of them, and all liability imposed or
threatened to be imposed upon any or all of them, by reason of or arising out of
their or any of them being or having been a director or officer of this
Corporation or of such other corporation; but any such By-law or contractual
provision shall not be exclusive of any other right or rights of any such
director or officer to be indemnified and protected against such costs and
liabilities which he may otherwise possess.
11.2 The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceedings, whether civil, criminal, administrative or investigative
(other than an action by or in the right of this Corporation) by reason of the
fact that he is or was a director, officer, employee or agent of this
Corporation, or is or was serving at the request of this Corporation as a
director, officer, employee, partner, trustee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees), judgments, fines, taxes and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of this
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of this
Corporation, and, with respect to any criminal action or proceeding, that he had
reasonable cause to believe that his conduct was unlawful.
11.3 This Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit by or in the right of this Corporation to procure a judgment in its
favor by reason of the fact that he is or was a director, officer, employee or
agent of this Corporation, or is or was serving at the request of this
Corporation as a director, officer, employee, partner, trustee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) and amounts paid in settlement
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of this
Corporation except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
Corporation unless and only to the extent that the Court in which such action or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court
shall deem proper. Any indemnification under this Article XI (unless ordered by
a Court) shall be made by this Corporation only as authorized in the specific
instance upon a determination that indemnification of the director, officer,
employee, partner, trustee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in this Article XI. Such
determination shall be made (1) by the Board of Directors by a majority vote of
a quorum consisting of Directors who were not parties to such action, suit or
proceeding, or (2) if such quorum is not obtainable, or, even if obtainable, a
quorum of disinterested Directors so directs, by independent legal counsel in a
written opinion, or (3) by the shareholders. To the extent that a director,
officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit, or proceeding referred to in this
Article XI, or in defense of any
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claim, issue or matter therein, he shall be indemnified against expenses,
including attorneys' fees, actually and reasonably incurred by him in connection
with the action, suit, or proceeding.
11.4 Expenses incurred in defending any actual or threatened civil or
criminal action, suit or proceeding may be paid by this Corporation in advance
of the final disposition of such action, suit or proceeding as authorized by the
Board of Directors in the specific instance upon receipt of an undertaking by or
on behalf of the director, officer, employee, partner, trustee or agent to repay
such amount unless it shall be ultimately determined that he is entitled to be
indemnified by the Corporation as authorized in this Article XI.
11.5 The indemnification provided by this Article XI shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any By-law, agreement, vote of shareholders or disinterested
Directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee, partner, trustee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
11.6 For the purposes of this Article XI, references to this
`Corporation' include all constituent corporations absorbed in a consolidation
or merger as well as the resulting or surviving corporation so that any person
who is or was a director, officer, employee, partner, trustee or agent of such a
constituent corporation as a director, officer, employee, partner, trustee or
agent of another enterprise shall stand in the same position under the
provisions of this Article XI with respect to the resulting surviving
corporation in the same capacity.
11.7 In the event any provision of this Article XI shall be held invalid
by any court of competent jurisdiction, such holding shall not invalidate any
other provisions of this Article XI and any other provisions of this Article XI
shall be construed as if such invalid provisions had not been contained in this
Article XI.
Article XI of the Corporation's By-laws provides as follows:
INDEMIFICATION OF OFFICERS AND DIRECTORS
AGAINST LIABILITIES AND EXPENSE IN ACTIONS
1. Indemnification with Respect to Third Party Actions. The Corporation
shall indemnify any person who was or is a party, or is threatened to be made a
party to any threatened, pending or completed action, suit or proceedings,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of this Corporation) by reason of the fact that he is or was
a director, officer, employee or agent of this Corporation, or is or was serving
at the request of this Corporation as a director, officer, employee, partner,
trustee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments,
fines, taxes and amounts paid in settlement, actually and reasonably incurred by
him in connection with such action, suit or proceeding, if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of this Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of this Corporation, and, with respect to any criminal action or
proceeding, that he had reasonable cause to believe that his conduct was
unlawful.
2. Indemnification with Respect to Actions by or in the Right of the
Corporation. This Corporation shall indemnify any person who was or is a party,
or is threatened to be made a party to any threatened, pending or completed
action, suit by or in the right of this Corporation to procure a judgment in its
favor by reason of the fact that he is or was a director, officer, employee or
agent of this Corporation, or is or was serving at the request of this
Corporation as a director, officer, employee, partner, trustee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of this Corporation, except that no
indemnification shall be made in respect of any claim, issue or matter if such
person shall have been adjudged to be liable for negligence or misconduct in the
performance of his duty to the Corporation, unless and only to the extent that
the court in which such action or suit was brought, shall determine upon
application that, despite the adjudication of liability, but in view of all
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the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper. Any
indemnification under this Article XI (unless ordered by a court) shall be made
by this Corporation only as authorized in the specific instance upon a
determination that indemnification of the director, officer, employee, partner,
trustee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in this Article XI. Such determination
shall be made (1) by the Board of Directors by a majority vote of a quorum
consisting of Directors who were not parties to such action, suit or proceeding,
or (2) if such quorum is not obtainable, or, even if obtainable, a quorum of
disinterested Directors so directs, by independent legal counsel in a written
opinion, or (3) by the shareholders. To the extent that a director, officer,
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred to in this
Article XI, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees), actually and
reasonably incurred by him, in connection with the action, suit, or proceeding.
3. Payment of Expenses in Advance of Disposition of Action. Expenses
incurred in defending any actual or threatened civil or criminal action, suit,
or proceeding may be paid by this Corporation in advance of the final
disposition of such action, suit, or proceeding, as authorized by the Board of
Directors in the specific instance upon receipt of any undertaking by or on
behalf of the director, officer, employee, partner, trustee or agent to repay
such amount, unless it shall be ultimately determined that he is entitled to be
indemnified by the Corporation as authorized in this Article XI.
4. Indemnification Provided in this Article Non-Exclusive. The
indemnification provided in this Article XI shall not be deemed exclusive of any
other rights to which those seeking indemnification may be entitled under any
By-law, agreement, vote of shareholders or disinterested Directors or otherwise,
both as to action in his official capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer, employee,
partner, trustee or agent and shall inure to the benefit of the heirs, executors
and administrator of such a person.
5. Definition of `Corporation'. For the purposes of this Article XI,
references to this `Corporation' include all constituent corporations absorbed
in a consolidation or merger, as well as the resulting or surviving corporation
so that any person who is or was a director, officer, employee, partner, trustee
or agent of such a constituent corporation as a director, officer, employee,
partner, trustee or agent of another enterprise shall stand in the same position
under the provision of this Article XI with respect to the resulting surviving
corporation in the same capacity.
6. Saving Clause. In the event any provision of this Article XI shall be
held invalid by any court of competent jurisdiction, such holding shall not
invalidate any other provisions of this Article XI and any other provisions of
this Article XI shall be construed as if such invalid provisions had not been
contained in this Article XI.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits are filed herewith or are incorporated herein by
reference to the indicated documents filed by the Company with the SEC.
4.1* Provisions regarding Common Stock in Article IV of the Restated
Articles of Incorporation, as amended
4.2 Provisions regarding Redeemable Preferred Stock in Article V of
the Restated Articles of Incorporation, as amended (filed as
Exhibit 3.1 to the registrant's Annual Report on Form 10-K for
the fiscal year ended June 27, 1993 and incorporated herein by
reference)
5.1* Opinion of Morrison & Hecker L.L.P. as to legality (including
consent of such firm)
23.1* Consent of Morrison & Hecker L.L.P. (included in Exhibit 5.1)
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23.2* Consent of PricewaterhouseCoopers LLP
24.1* Power of Attorney (included in signature page)
* Filed herewith.
Item 9. Undertakings.
A. The undersigned registrant hereby undertakes:
(i) To file, during any period in which offers or sales of
securities are being made, a post-effective amendment to this
registration statement to:
(a) include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(b) 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) promulgated under the Securities Act of
1933 if, in the aggregate, the changes in volume and price
represent no more than 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement; and
(c) 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) and (b) do
not apply if 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
Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(ii) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(iii) To remove from registration by means of a post-effective
amendment any of the securities being registered that remain
unsold at the termination of the offering.
B. The undersigned registrant hereby undertakes that, for the 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 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions or otherwise, the
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<PAGE>
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 security 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.
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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
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 Dallas, State of Texas, on May 3, 1999.
PIZZA INN, INC.
By: /s/ C. Jeffrey Rogers
--------------------------
C. Jeffrey Rogers
President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints C. Jeffrey Rogers, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign and
file any or all amendments (including post-effective amendments) to this
Registration Statement and any and all other documents in connection therewith,
and all exhibits thereto with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent 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 might or could be done in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his 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 on the dates indicated.
NAME AND POSITION DATE
/s/ Steve A. Ungerman May 3, 1999
- --------------------------------------------
Steve A. Ungerman
Director and Chairman of the Board
/s/ C. Jeffrey Rogers May 3, 1999
- --------------------------------------------
C. Jeffrey Rogers
Director, Vice Chairman, President and
Chief Executive Officer (Principal Executive Officer)
/s/ Butler E. Powell May 3, 1999
- --------------------------------------------
Butler E. Powell
Director
/s/ Rammon D. Phillips May 3, 1999
- --------------------------------------------
Ramon D. Phillips
Director
/s/ F. Jay Taylor May 3, 1999
- --------------------------------------------
F. Jay Taylor
Director
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/s/ Bobby L. Clairday May 3, 1999
- --------------------------------------------
Bobby L. Clairday
Director
/s/ Ronald W. Parker May 3, 1999
- --------------------------------------------
Ronald W. Parker
Director, Executive Vice President and
Chief Operating Officer
(Principal Financial Officer)
/s/ Shawn M. Preator May 3, 1999
- --------------------------------------------
Shawn M. Preator
Controller and Treasurer
(Principal Accounting Officer)
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EXHIBIT INDEX
Exhibit Document
4.1* Provisions regarding Common Stock in Article IV of the Restated
Articles of Incorporation, as amended
4.2 Provisions regarding Redeemable Preferred Stock in Article V
of the Restated Articles of Incorporation, as amended (filed
as Exhibit 3.1 to the registrant's Annual Report on Form 10-K
for the fiscal year ended June 27, 1993 and incorporated herein
by reference)
5.1* Opinion of Morrison & Hecker L.L.P. as to legality (including
consent of such firm)
23.1* Consent of Morrison & Hecker L.L.P. (included in Exhibit 5.1)
23.2* Consent of PricewaterhouseCoopers LLP
24.1* Power of Attorney (included in signature page)
* Filed herewith.
EXHIBIT 4.1
Article IV of Pizza Inn, Inc.'s Restated Articles of Incorporation, as amended
------------------------------------------------------------------------------
4.1 The total number and designation of shares of capital stock that the
Corporation shall have the authority to issue is Twenty-six Million (26,000,000)
shares of Common Stock, with the par value of one cent ($.01) per share and Five
Million (5,000,000) shares of Preferred Stock, with the par value of one dollar
($1.00) per share.
4.2 Each holder of Common Stock shall be entitled to cast one (1) vote for each
share of Common Stock issued and outstanding in his or her name. No Common Stock
shall be issued without voting rights. Except as hereinafter provided in Section
5.7, Preferred Stock shall be non-voting unless converted to Common Stock.
------------------------
MORRISON & HECKER L.L.P.
ATTORNEYS AT LAW
2600 Grand Avenue
Kansas City, Missouri 64108-4606
Telephone (816) 691-2600
Telefax (816) 474-4208
May 3, 1999
Pizza Inn, Inc.
5050 Quorum Drive, Suite 500
Dallas, Texas 75240
Re: Registration Statement on Form S-8
Pizza Inn, Inc. 1993 Stock Award Plan (the "1993 Plan")
Ladies and Gentlemen:
In connection with the filing of a Registration Statement on Form S-8
for Pizza Inn, Inc. (the "Company"), relating to both the issuance pursuant to
the 1993 Plan and the subsequent reoffering and resale of common stock of the
Company (the "Stock"), you have requested our opinion on the legality of the
Stock being issued thereunder. We have examined the Company's Restated Articles
of Incorporation, as amended, the Company's Amended and Restated By-Laws,
Minutes of applicable meetings of the Board of Directors of the Company, the
1993 Plan, and such other records and documents, together with applicable
certificates of public officials, that we have deemed relevant to this opinion.
Based on the foregoing, it is our opinion that all necessary corporate
actions have been taken to authorize the issuance and sale of 1,000,000 shares
of Stock in the manner and as provided for in the Registration Statement on Form
S-8, and when such Registration Statement becomes effective and the Stock is
issued and the payment received therefore in accordance with the 1993 Plan, the
Stock will be validly issued and such Stock will be fully paid and nonassessable
.
We hereby consent to the reference to our firm in the Registration
Statement on Form S-8, and consent to the filing of this letter, or copies
hereof, as an exhibit to such Registration Statement.
Very truly yours,
MORRISON & HECKER L.L.P.
/s/ Morrison & Hecker L..L.P.
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated August 17, 1998 relating to the
financial statements and financial statement schedule, which appears in Pizza
Inn, Inc.'s Annual Report on Form 10-K/A, Amendment No. 1, for the year ended
June 28, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Dallas, Texas
April 30, 1999
