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As filed with the Securities and Exchange Commission on June 12, 1996
REGISTRATION STATEMENT NO. 333-1668
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AU BON PAIN CO., INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
Delaware 04-2723701
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number)
</TABLE>
19 FID KENNEDY AVENUE
BOSTON, MASSACHUSETTS 02210
617-423-2100
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
AU BON PAIN CO., INC. MANAGING PARTNER INCENTIVE PLAN
(Full Title of the Plan)
ANTHONY J. CARROLL
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
AU BON PAIN CO., INC.
19 FID KENNEDY AVENUE
BOSTON, MASSACHUSETTS 02210
617-423-2100
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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With copies to:
WALTER D. WEKSTEIN, ESQ.
GADSBY & HANNAH
125 SUMMER STREET
BOSTON, MASSACHUSETTS 02110
617-345-7000
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
Au Bon Pain Co., Inc. (the "Company") hereby incorporates by reference
the documents listed in (a) through (d) below, which have previously been filed
with the Securities and Exchange Commission.
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995, and the Company's Quarterly Report on
Form 10-Q for the fiscal quarter ended April 20, 1996, each filed
with the Securities and Exchange Commission (File No. 0-19253)
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act");
(b) The Company's Notice of Annual Meeting and Proxy Statement for
the Company's annual meeting of stockholders held on May 28,
1996, mailed to stockholders on or about April 26, 1996;
(c) All other reports filed since December 31, 1995 pursuant to
Section 13(a) or 15(d) of the Exchange Act; and
(d) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A, filed with the Securities and
Exchange Commission on May 2, 1991, under Section 12 of the
Exchange Act, and any amendments or reports filed for the purpose
of updating such description.
In addition, all documents subsequently filed with the Securities and
Exchange Commission by the Company pursuant to Sections 13(a) and 13(c), Section
14 and Section 15(d) of the Exchange Act prior to the filing of a post-effective
amendment hereto that indicates that all securities offered hereunder have been
sold or that 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.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware and
Section 10.1 of the Company's Certificate of Incorporation permit the Company to
indemnify an officer, director or employee in respect of claims made by reason
of his status with the Company, including stockholder derivative suits provided
he acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
act or proceeding, had no reasonable cause to believe his conduct was unlawful.
Expenses incurred in defense of such actions may be paid by the Company in
advance of final disposition upon receipt of an undertaking to repay if there is
an ultimate determination that he is not entitled to be indemnified.
The Delaware Supreme Court has held that the directors' duty of care to
a corporation and its stockholders requires the exercise of an informed business
judgment. Having become informed of all material information
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reasonably available to them, directors must generally act with requisite care
in the discharge of their duties. The Delaware General Corporation Law and
Section 9 of the Company's Certificate of Incorporation exonerate the Company's
directors from personal liability to the Company or its stockholders for
monetary damages for breach of fiduciary duty of care as a director, with
certain exceptions. The exceptions include breach of the director's duty of
loyalty, acts or omissions not in good faith or which involve intentional
misconduct or knowing violations of law, improper declaration of dividends and
transactions from which the director derived and improper personal benefit. The
limitation of liability provision does not eliminate a stockholder's right to
seek monetary, equitable remedies such as injunction or recision to redress an
action taken by directors. However, as a practical matter, equitable remedies
may not be available in all situations, and there may be instances where no
effective remedy is available.
The Company believes that it is the position of the Commission that
insofar as the foregoing provision may be involved to disclaim liability for
damages arising under the Act, the provision is against public policy as
expressed in the Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a complete list of exhibits filed or incorporated by
reference as part of this registration statement.
4.1 Au Bon Pain Co., Inc. Managing Partner Incentive Plan.**
5.1 Opinion of Gadsby & Hannah as to the legality of the securities
being registered.**
23.1 Consent of Coopers & Lybrand, L.L.P.*
23.2 Consent of Gadsby & Hannah (included in Exhibit 5.1 hereto).
24.1 Powers of Attorney*.
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* Previously filed.
**Filed herewith.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(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; and
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(iii) To include any material information
with respect to the plan of distribution not
previously disclosed in the registration statement or
any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(I) and (a)(1)(ii)
above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the undersigned 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; and
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or 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.
(c) 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, 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 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.
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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
of the requirements for filing on Form S-8 and has duly caused this
Post-Effective Amendment No. 1 to its Registration Statement on Form S-8 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Boston, Massachusetts, on June 12, 1996.
AU BON PAIN CO., INC.
By: /s/ ANTHONY J. CARROLL
---------------------------------
Anthony J. Carroll, Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to the Registration Statement has been signed
below by the following persons in the capacities and on the date indicated.
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<CAPTION>
Signature Capacity Date
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<S> <C> <C>
Co-Chairman of the Board, Chief June 12, 1996
RONALD M. SHAICH Executive Officer and Director
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Ronald M. Shaich (Principal Executive Officer)
Co-Chairman of the Board June 12, 1996
LOUIS I. KANE and Director
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Louis I. Kane
Director
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Francis W. Hatch
* Director June 12, 1996
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George E. Kane
Director
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Joseph P. Shaich
* Director June 12, 1996
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James R. McManus
Director
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Henry J. Nasella
Vice President and Chief
ANTHONY J. CARROLL Financial Officer (Principal June 12, 1996
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Anthony J. Carroll Financial and Accounting Officer)
By: ANTHONY J. CARROLL
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Attorney-in-Fact
</TABLE>
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EXHIBIT INDEX
Exhibit No. Description
4.1 Au Bon Pain Co., Inc. Managing Partner Incentive Plan.**
5.1 Opinion of Gadsby & Hannah as to the legality of the
securities being registered.**
23.1 Consent of Coopers & Lybrand, L.L.P.*
23.2 Consent of Gadsby & Hannah (included in Exhibit 5.1 hereto).
24.1 Powers of Attorney.*
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* Previously filed.
**Filed herewith.
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AU BON PAIN CO., INC.
MANAGING PARTNER INCENTIVE PLAN
As Adopted Effective April 21, 1996
I. PURPOSE
The purpose of the Au Bon Pain Co., Inc. Managing Partner Incentive
Plan (as amended from time to time and as supplemented by any plan adopted under
Section II below, the "Plan") is to provide periodic incentives and rewards to
selected key managerial employees of Au Bon Pain Co., Inc. (the "Company") or
its subsidiaries ("Subsidiaries") for significant contributions to the Company's
profitability.
II. ADMINISTRATION
The Plan is administered by the Board of Directors of the Company,
which may delegate its powers under the Plan to the Company's Retail Management
Committee (the "Committee") to the full extent permitted by law. Without
limiting the generality of the foregoing, the Committee may, in its discretion,
interpret the Plan and make rules concerning the application of the Plan. In the
exercise of its powers hereunder, the Board of Directors may adopt one or more
plans hereunder providing for incentive awards and fixing the terms and
conditions of such awards.
III. ELIGIBILITY AND PARTICIPATION
The Committee will from time to time designate eligible participants
and/or job titles and/or approve incentive formulae and awards for participants
("Participants"). Officers and Directors of the Company are not eligible to
participate in the Plan or to receive Awards (as defined in Section IV below)
under the Plan.
IV. DETERMINATION OF BONUSES
A. Bonus Formula
Each eligible Participant shall receive a bonus determined in
accordance with formulae and/or other methods approved by the Committee.
B. Awards
Each Participant's award, which may be cash, shares of the Company's
Class A Common Stock, or a combination thereof (collectively, "Awards") shall be
as determined by the Committee in its discretion.
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V. DISTRIBUTION OF BONUSES
Awards will be distributed as and at the time or times determined by
the Committee. All distributions of Awards under this Plan are subject to
required tax withholding, and any Participant may request the Company to
withhold additional amounts.
VI. AMENDMENT, SUSPENSION OR TERMINATION OF PLAN
The Company, acting through the Board of Directors or the Committee,
reserves the right to amend, suspend or terminate the Plan at any time if the
Board of Directors or the Committee, in its sole discretion, determines that
such action is in the best interests of the Company.
VII. NOTICES
Any notice required or permitted to be given by the Company or the
Committee pursuant to the Plan shall be deemed given when personally delivered
or deposited in the United States mail, registered or certified, postage
prepaid, addressed to the Participant at the last address shown for the
Participant on the records of the Company.
VIII. MISCELLANEOUS PROVISIONS
No Award payable under the Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or
charge prior to actual receipt thereof by the Participant; any attempt to so
anticipate, alienate, sell, transfer, assign, pledge, encumber or charge prior
to such receipt shall be void, and the Company shall not be liable in any manner
for or subject to the debts, contracts, liabilities, engagements or torts of any
person entitled to any Award under the Plan or any Incentive Agreement.
Nothing contained herein confers upon any Participant the right to be
retained in the service of the Company or any Subsidiary or limits the right of
the Company or any Subsidiary to discharge, terminate the employment of or
otherwise deal with any Participant without regard to the existence of the Plan
or any Incentive Agreement.
The Plan shall at all times be entirely unfunded, and no provision
shall at any time be made with respect to segregating assets of the Company for
payment of any Awards hereunder. No Participant or other person shall have any
interest in any particular assets of the Company by reason of the right to
receive an Award under the Plan or any Incentive Agreement, and any Participant
or other person shall have only the rights of a general unsecured creditor of
the Company with respect to any rights under the Plan and any Incentive
Agreement.
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[GADSBY & HANNAH LETTERHEAD]
June 3, 1996
Au Bon Pain Co., Inc.
19 Fid Kennedy Avenue
Boston, MA 02210
Ladies and Gentlemen:
This opinion is furnished in connection with the registration on Form
S-8 pursuant to the Securities Act of 1933, as amended (the "Securities Act") of
120,000 shares (the "Shares") of Common Stock, par value $.0001 per shares
("Common Stock") of Au Bon Pain Co., Inc. a Delaware corporation (the "Company")
that may be issued from time to time under the Company's 1996 Managing Partner
Incentive Corporation Plan (the "Plan").
In connection with rendering this opinion, we have examined the
Certificate of Incorporation of the Company, as to heretofore amended, the
Amended and Restated Bylaws of the Company, and the Plan; such records of the
corporate proceedings of the Company as we deemed material; the registration
statement on Form S-8 under the Securities Act relating to the Shares (as
amended, the "Registration Statement"), and such other certificates, receipts,
records and documents as we considered necessary for the purposes of this
opinion.
We are attorneys admitted to practice in The Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdictions
other than the laws of the United States of America, The Commonwealth of
Massachusetts and the Delaware General Corporation Law.
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GADSBY & HANNAH
Au Bon Pain Co., Inc.
June 3, 1996
Page Two
Based upon the foregoing, we are of the opinion that when issued in
accordance with the terms of the Plan, the Shares will be legally issued, fully
paid and nonassessable shares of the Company's Common Stock.
The foregoing assumes that all requisite steps will be taken to comply
with the requirements of the Plan and of the Securities Act and applicable
requirements of state laws regulating the offer and sale of securities.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Sincerely yours,
Gadsby & Hannah
