<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 17, 1999
REGISTRATION NO. 333-
-----------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------
PANERA BREAD COMPANY
------------------------------------------------------
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
--------------------------------------------------------------
(State or Other Jurisdiction of Incorporation or Organization)
04-2723701
------------------------------------
(IRS Employer Identification Number)
7930 BIG BEND BOULEVARD, WEBSTER GROVES, MO 63119
(314) 918-7779
---------------------------------------------------
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
RICHARD C. POSTLE
PRESIDENT
7930 BIG BEND BOULEVARD
WEBSTER GROVE, MO 63119
(314) 918-7779
---------------------------------------------------------
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
THE COMMISSION IS REQUESTED TO SEND COPIES OF ALL COMMUNICATIONS TO:
MARIANNE GILLERAN, ESQ.
GADSBY & HANNAH LLP
225 FRANKLIN STREET
BOSTON, MA 02110
(617) 345-7000
--------------
<PAGE>
Approximate date of commencement of proposed sale to the public: From
time to time, after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [ x ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
The registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said section 8(a),
may determine.
-------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------ --------------------- ---------------------- --------------------- ----------------------
TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED(1)(2) SHARE (3) PRICE REGISTRATION FEE
- ------------------------ --------------------- ---------------------- --------------------- ----------------------
<S> <C> <C> <C> <C>
CLASS A COMMON STOCK, 454,179 $6.3125 $2,867,004.90 $797.03
PAR VALUE $0.0001 PER
SHARE
- ------------------------ --------------------- ---------------------- --------------------- ----------------------
</TABLE>
(1) PURSUANT TO RULE 416, THIS REGISTRATION STATEMENT ALSO COVERS SUCH
ADDITIONAL SECURITIES AS MAY BECOME ISSUABLE PURSUANT TO STOCK SPLITS OR
SIMILAR TRANSACTIONS.
(2) REPRESENTS (i) 392,500 SHARES OF COMMON STOCK THAT MAY BE ISSUED BY THE
REGISTRANT AND (ii) 61,679 SHARES OF COMMON STOCK THAT HAVE BEEN ISSUED BY
THE REGISTRANT TO CERTAIN SHAREHOLDERS UPON THE EXERCISE BY SUCH
SHAREHOLDERS OF CERTAIN WARRANTS HELD BY SUCH SHAREHOLDERS.
(3) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION FEE
PURSUANT TO RULE 457(c), BASED ON THE AVERAGE OF THE HIGH AND LOW PRICES OF
THE COMMON STOCK, $6.50 AND $6.125, RESPECTIVELY, AS REPORTED BY THE NASDAQ
NATIONAL MARKET ON JUNE 14, 1999.
-------------------------------
<PAGE>
SUBJECT TO COMPLETION, DATED JUNE 17, 1999
THIS INFORMATION IS SUBJECT TO COMPLETION OR AMENDMENT. WE HAVE FILED A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES WITH THE SECURITIES AND
EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD AND OFFERS TO BUY MAY NOT
BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS
PROSPECTUS IS NEITHER AN OFFER TO SELL NOR THE SOLICITATION OF AN OFFER TO BUY.
A SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR
SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE
SECURITIES LAWS OF ANY SUCH STATE SHALL NOT OCCUR.
<PAGE>
PROSPECTUS
PANERA BREAD COMPANY
454,179 SHARES OF COMMON STOCK
$.0001 PAR VALUE PER SHARE
This Prospectus relates to the offer and sale of 454,179 shares of our
Class A Common Stock that certain of our stockholders may occasionally sell.
This Prospectus covers only the reoffer and resale of up to 454,179 shares of
our Class A Common Stock by the selling stockholders, 61,679 of which shares are
currently owned by one of the selling stockholders and up to 392,500 shares of
Class A Common Stock which we may issue to such selling stockholders upon their
exercise of warrants. See "Selling Stockholders." When this Prospectus refers to
"common stock" it is referring to the Class A Common Stock unless otherwise
specifically stated.
The shares of common stock covered by this Prospectus may be sold by
the selling stockholders: l) to or through one or more underwriters, 2) directly
to purchasers, through agents, 3) on the NASDAQ National Market in typical
brokerage transactions, 4) in negotiated transactions, or otherwise. The selling
stockholders may sell the shares of common stock covered by this Prospectus: 1)
at market prices prevailing at the time of sale, 2) at prices related to the
then-prevailing market price, or 3) at negotiated prices, but Panera will not
receive proceeds from the sale of the shares of common stock by the selling
stockholders. No minimum purchase is required and no arrangement has been made
to have funds received by such selling stockholders and/or such registered
representatives placed in an escrow, trust or similar account or arrangement,
unless the proceeds come from a purchaser residing in a state in which the sale
of those securities has not yet been qualified. See "Plan of Distribution."
The common stock is traded on the Nasdaq National Market ("Nasdaq")
under the symbol "PNRA." The shares of common stock to be offered for sale
pursuant to this Prospectus may be offered for sale on Nasdaq or in privately
negotiated transactions. On ________, 1999, the closing price for the common
stock as reported on Nasdaq was $________ per share.
YOU SHOULD CONSIDER, AMONG OTHER THINGS, THE INFORMATION SET FORTH IN
"RISK FACTORS" BEGINNING ON PAGE 1 OF THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED THAT
THIS PROSPECTUS IS ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is ____________, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page Page
---- ----
<S> <C> <C> <C>
The Company.................................... 1 Transfer Agent.................................... 7
Forward-Looking Statements..................... 1 Legal Matters..................................... 7
Risk Factors................................... 1 Experts........................................... 8
Use of Proceeds................................ 4 Recent Developments............................... 8
Selling Stockholders........................... 5 Indemnification................................... 8
Plan of Distribution........................... 6
</TABLE>
ABOUT THIS PROSPECTUS
This Prospectus is part of a Registration Statement that we filed with
the Securities and Exchange Commission; it provides you with a general
description of the securities offered. You should read this Prospectus together
with additional information described under the heading WHERE YOU CAN FIND MORE
INFORMATION.
We are complying with the SEC's plain English program. This is an
initiative launched by the SEC to make prospectuses and other information more
understandable to the general investor. To see more detail, you should read the
exhibits filed with this Registration Statement.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the
Securities and Exchange Commission, as required. You may copy and inspect the
reports, proxy statements and other information at the public reference
facilities maintained by the SEC at 450 Fifth Street, N.W., Washington, D.C.
20549, or at the SEC's Regional Offices at 7 World Trade Center, New York, New
York 10048, or at 500 West Madison Street, Chicago, Illinois 60661. The Public
Reference Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549
may also provide, at prescribed rates, copies of such material. The SEC also
maintains a Web site that contains reports, proxy and information statements and
other information regarding registrants, including Panera, that file
electronically with the SEC. The address of such site is http://www.sec.gov. Our
common stock is quoted on the Nasdaq National market under the symbol "PNRA".
You may inspect reports and other information concerning Panera at the National
Association of Securities Dealers, Inc. 1735 K Street, N.W., Washington, D.C.
20006.
The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this Prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 15 or 15(d) of the Securities Exchange Act of 1934
until this offering terminates:
(1) Our Annual Report on Form 10-K for the fiscal year ended December
26, 1998, filed March 26, 1999 as amended on April 26, 1999.
(2) Our Quarterly Report on Form 10-Q for the quarter ended April 17,
1999, filed June 1, 1999.
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(3) Our Proxy Statement filed January 25, 1999, relative to a Special
Meeting of Stockholders on March 4, 1999 in connection with the sale of our Au
Bon Pain Division.
(4) The description of our Class A Common Stock contained in our
Registration Statement on Form 8-A filed May 2, 1991 and Form 8-A filed November
1, 1996 and any amendments thereto.
(5) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities and Exchange Act of 1934 since the end of the fiscal year covered by
the annual report referred to in (1) above.
You can request copies of these filings at no cost by contacting our
Director of Investor Relations, in writing at 7930 Big Bend Boulevard, Webster
Groves, MO 63119, or by phone at (314) 918-7779.
NO DEALER, SALESMAN, OR ANY OTHER PERSON HAS BEEN AUTHORIZED BY US TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS
PROSPECTUS, AND, YOU SHOULD NOT RELY ON ANY OTHER INFORMATION OR REPRESENTATION.
ALL INFORMATION IN THIS PROSPECTUS IS STATED AS OF THE DATE OF THIS PROSPECTUS.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY SECURITY OTHER THAN THE SECURITIES COVERED BY THIS PROSPECTUS.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY THE SECURITIES OFFERED HEREBY TO ANY PERSON IN ANY JURISDICTION IN
WHICH SUCH OFFER OF SOLICITATION MAY NOT BE LAWFULLY MADE. THERE MAY BE CHANGES
IN THE AFFAIRS OF PANERA AFTER THE DELIVERY OF THIS PROSPECTUS OR THE SALE OF
THE COMMON STOCK. YOU SHOULD NOT ASSUME THAT THE INFORMATION CONTAINED HEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE ON THE FRONT OF THIS PROSPECTUS.
iii
<PAGE>
THE COMPANY
AS THE FOLLOWING IS A SUMMARY, IT DOES NOT CONTAIN ALL OF THE
INFORMATION THAT THE MORE DETAILED INFORMATION AND FINANCIAL STATEMENTS
(INCLUDING THE NOTES THERETO) INCORPORATED INTO THIS PROSPECTUS PROVIDE. YOU
SHOULD CAREFULLY CONSIDER THE INFORMATION SET FORTH UNDER THE HEADING "RISK
FACTORS."
Panera Bread Company is a Delaware corporation. Panera's principal
office is located at 7930 Big Bend Boulevard, Webster Groves, Missouri 63119 and
the telephone number is (314) 918-7779.
FORWARD-LOOKING STATEMENTS
This Prospectus contains or incorporates certain forward-looking
statements, including statements containing the words "believes", "anticipates",
"expects" and other, similar words. You should be aware that those
forward-looking statements involve known and unknown risks and uncertainties
which may cause:
- the actual results,
- our financial condition,
- our performance,
- our achievements, or
- industry results
to be worse than the future results, performance or achievements stated in, or
implied by, those forward-looking statements.
Do not rely on any forward-looking statements. Although we believe that
the expectations reflected in these forward-looking statements are reasonable,
we cannot assure you that the actual results or developments we anticipate will
be realized, or even if realized, that they will have the expected effects on
our business or operations. We assume no obligation to update any
forward-looking statements to reflect future events or developments.
RISK FACTORS
THE SECURITIES OFFERED HEREBY ARE HIGHLY SPECULATIVE. YOU SHOULD
CAREFULLY CONSIDER THE FOLLOWING MATTERS IN CONNECTION WITH AN INVESTMENT IN THE
COMMON STOCK IN ADDITION TO THE OTHER INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS. INFORMATION CONTAINED OR INCORPORATED BY REFERENCE
IN THIS PROSPECTUS CONTAINS "FORWARD-LOOKING STATEMENTS" WITHIN THE MEANING OF
THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995, WHICH CAN BE IDENTIFIED BY
THE USE OF FORWARD-LOOKING TERMINOLOGY SUCH AS "MAY," "WILL," "WOULD," "COULD,"
"INTEND," "PLAN," "EXPECT," "ANTICIPATE," "ESTIMATE," OR "CONTINUE," OR THE
NEGATIVE THEREOF OR OTHER VARIATIONS THEREON OR COMPARABLE TERMINOLOGY. THE
FOLLOWING MATTERS CONSTITUTE CAUTIONARY STATEMENTS IDENTIFYING IMPORTANT FACTORS
WITH RESPECT TO SUCH FORWARD-LOOKING STATEMENTS, INCLUDING RISKS AND
UNCERTAINTIES, THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE
IN SUCH FORWARD-LOOKING STATEMENTS. ANY OF THE FOLLOWING RISKS COULD MATERIALLY
ADVERSELY AFFECT OUR BUSINESS, OPERATING RESULTS AND FINANCIAL CONDITION AND
COULD RESULT IN A COMPLETE LOSS OF YOUR INVESTMENT.
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<PAGE>
THE SALE OF AU BON PAIN DIVISION MAY HAVE AN ADVERSE EFFECT ON THE COMPANY
Effective May 16, 1999, we transferred substantially all of the
operating assets, store leases, contracts, franchise agreements, and liabilities
associated with the Company's bakery/cafe division known as Au Bon Pain to two
wholly-owned subsidiaries. Immediately thereafter, the two subsidiaries merged
and we sold the stock of the combined entity to ABP Corporation. Currently, our
operations consist of the Panera Bread/Saint Louis Bread Company Division and it
is not clear if the sale of the Au Bon Pain division will have a material
adverse effect on our business, financial condition or operating results.
IF CERTAIN KEY PERSONNEL LEAVE THE COMPANY, THE COMPANY MAY SUFFER ADVERSE
CONSEQUENCES
Upon the completion of the sale of the Au Bon Pain division, certain
management personnel, including Louis I. Kane (former Co-Chairman) and Anthony
J. Carroll (former Chief Financial Officer) left their positions with Panera.
Our future performance depends on the continued contributions of the remaining
key management personnel, including Ronald M. Shaich, Chairman and Chief
Executive Officer, Richard C. Postle, President and Chief Operating Officer and
William B. Moreton, Chief Financial Officer. We may not succeed in hiring,
training and retaining suitable management level employees. Management may be
unable to successfully manage our operations or achieve any expansion plans. Our
growth and earnings depend on our ability to attract and retain such personnel
and the inability to do so could have a material adverse effect on our business,
financial condition or results of operations.
DUE TO THE SALE, THE COMPANY MAY HAVE DECREASED BUYING POWER WHICH COULD
NEGATIVELY EFFECT OPERATING RESULTS
We may not have the same ability to obtain favorable pricing
arrangements or volume discounts from our suppliers now that the sale of the Au
Bon Pain division has been completed. Loss of such arrangements could have a
material adverse effect on our business, financial condition or results of
operations.
CHANGES IN OPERATING SYSTEMS MAY CAUSE DISRUPTIONS
As a result of the sale, we may will be replacing most operating
systems. We may experience substantial costs and delays in replacing such
systems which could materially adversely affect our business, financial
condition or results of operations.
COMPETITION IN THE RESTAURANT INDUSTRY MAY AFFECT EXPANSION AND OPERATING
RESULTS
The restaurant industry is highly competitive. While management
believes that our restaurants are distinctive in design and operating concept,
we are aware that there are other restaurant chains with similar concepts, some
of which have greater financial resources than we have. We cannot give
assurances that other restaurant chains won't adopt a similar concept or be more
successful in establishing restaurants utilizing a similar concept. In
particular, we cannot give assurances that the sale of the Au Bon Pain division
will increase or improve our ability to successfully compete in the industry.
Our reduction in size and resources resulting from the sale may adversely affect
our ability to compete in the marketplace, which may have a material adverse
effect on our business, financial condition or results of operations.
-2-
<PAGE>
THERE IS UNCERTAINTY REGARDING PANERA'S ABILITY TO ACHIEVE AND MANAGE EXPANSION
Our future success and continued growth may depend on the ability to
expand our operations. Expansion depends on a number of factors, including our
ability to hire, train, retain and assimilate competent management and other
employees, the adequacy of our financial resources and our ability to identify
new markets in which we can successfully compete and adapt our management
information and other systems to accommodate expanded operations. In addition,
we may enter new markets in which we have no prior operating experience. We are
uncertain whether we will be able to achieve any planned expansion or that such
expansion will be profitable. Any expansion (including growth through
acquisitions) will place increasing pressure on our management controls. The
failure to manage successfully any planned expansion would adversely affect our
business.
DIFFICULTIES IN OBTAINING FINANCING MAY AFFECT THE ABILITY TO GROW
Future expansions through development of new product concepts or growth of
existing operations will require significant capital. To the extent that we are
not able to generate sufficient capital, we will need to obtain third party
financing. We may not be able to obtain such financing on favorable terms, if at
all. If we cannot obtain sufficient financing, we may be unable to pursue our
growth strategy, which would have a material adverse effect on our ability to
increase our revenues.
A FLUCTUATING STOCK PRICE PROVIDES UNCERTAINTY OF INVESTMENT VALUE
The market price of our common stock has fluctuated significantly since
the initial public offering. The market price of the common stock may be subject
to continuous fluctuations in the future. The common stock is traded on the
Nasdaq National Market which has experienced and is likely to continue
experiencing significant price and volume fluctuations that could adversely
affect the market price of the common stock without regard to our operating
performance. We believe that factors such as quarterly fluctuations in financial
results, announcements of new products or announcements by us or competitors may
cause the market price of the common stock to fluctuate, perhaps substantially.
These factors, as well as general economic conditions such as recessions or high
interest rates, may adversely affect the market price of the common stock.
PANERA HAS NEVER PAID A DIVIDEND AND DOES NOT INTEND TO IN THE FORESEEABLE
FUTURE
We have not paid any cash dividends to our stockholders since our
inception and we do not plan on paying any cash dividends in the foreseeable
future. We intend to reinvest earnings, if any, in the development and expansion
of the business.
THERE ARE LIMITATIONS ON OFFICERS AND DIRECTORS' LIABILITIES
Pursuant to our Certificate of Incorporation, as authorized under
applicable Delaware law, (a) our directors are not liable for monetary damages
for breach of fiduciary duty, except in connection with a breach of duty of
loyalty, for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, for dividend payments or stock
repurchases illegal under Delaware law or for any transaction in which a
director has derived an improper personal benefit, and (b) we shall indemnify
our officers and directors to the fullest extent permitted by Delaware law for
expenses, fines and judgments (including reasonable attorney's fees) incurred in
the defense and settlement of any actions against such persons in connection
with their having served as officers and directors with respect to matters in
which the
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<PAGE>
director or officer acted in good faith and in a manner he reasonably
believed to be not opposed to the best interest of Panera, and, with respect to
any criminal action, had reasonable cause to believe his conduct was lawful. For
a more detailed explanation of these provisions, see "Indemnification."
ANTITAKEOVER PROVISIONS IN PANERA'S CHARTER DOCUMENTS AND DELAWARE LAW AND THE
SHAREHOLDERS RIGHTS PLAN COULD HINDER THE ACQUISITION OF PANERA AND DEPRESS THE
PRICE OF THE COMMON STOCK
Our Certificate of Incorporation, as amended, and Shareholders Rights
Plan, as well as Delaware corporate law, contain provisions that could delay,
defer or prevent a change in control of Panera and, therefore, could adversely
affect the prevailing market price of Panera's common stock. Some of the
provisions impose various procedural and other requirements that could make it
more difficult for stockholders to cause certain corporate actions. Other
provisions allow us to issue, without stockholder approval, preferred stock
having rights senior to those of the common stock. We may issue the preferred
stock in one or more series, the terms of which may be determined at the time of
issuance by the board of directors, without further action by stockholders, and
may include voting rights, preferences as to dividends and liquidation,
conversion and redemption rights and sinking fund provisions. The issuance of
any preferred stock could adversely affect the rights of the holders of the
common stock, and therefore reduce the value of the common stock. In particular,
specific rights granted to future holders of preferred stock could be used to
restrict Panera's ability to merge with or sell its assets to at third party. In
addition, a Shareholders Rights Plan adopted by Panera in 1996 provides certain
rights to existing stockholders in the even of certain potential takeover
actions.
THE FUTURE SALES OF COMMON STOCK OR OTHER SECURITIES MAY DILUTE THE VALUE OF THE
COMMON STOCK
The board of directors has the authority, without action or vote of the
stockholders, to issue all or part of any authorized but unissued shares of
common stock, including shares authorized but unissued under Panera's stock
option plans. Any such issuance will dilute the percentage of ownership interest
of stockholders and may further dilute the book value of the common stock. In
addition, option holders may exercise their options at a time when we would
otherwise be able to obtain additional equity capital on more favorable terms.
The sale, or availability for sale, of a substantial number of shares
of common stock in the public market as a result of or following this offering
could adversely affect the common stock's market and could impair our ability to
raise additional capital through the sale of equity securities.
USE OF PROCEEDS
The selling stockholders will not pay any of the proceeds from the
sale of the shares of common stock to Panera. We expect to incur expenses in
connection with this offering in the amount of approximately $7,500 for
filing, legal, accounting and miscellaneous fees and expenses. We will not
pay for such expenses as commissions and discounts of brokers, dealers or
agents or the fees and expenses of counsel for the selling stockholders. See
"Selling Stockholders" and "Plan of Distribution."
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<PAGE>
SELLING STOCKHOLDERS
This Prospectus relates to the offer and sale from time to time by the
selling stockholders named in this Prospectus of up to 454,179 shares of common
stock, 61,679 of which have already been issued to one of the selling
stockholders and 392,500 of which we may issue to them upon their exercise of
common stock purchase warrants that they hold.
We are registering the warrant shares and issued shares to permit
public secondary trading of the shares from time to time by the selling
stockholders. We are paying for the registration of such securities but will not
pay for the fees and expenses of the selling stockholders, their attorneys or
other representatives, as a result of the sale of such securities by the selling
stockholders. See "Use of Proceeds" and "Plan of Distribution."
Sixty-one thousand six hundred seventy-nine (61,679) of the shares of
the common stock covered by this Prospectus have already been issued. We will
issue the remaining shares of common stock covered by this Prospectus to the
selling stockholders only upon the exercise by such stockholders of the warrants
they currently hold. We issued the warrants to the selling stockholders on July
24, 1996 pursuant to an investment agreement. We cannot predict when, and to
what extent the selling stockholders will, if at all, exercise the warrants. The
current purchase price for the shares issuable under the warrants is $5.62. The
warrants provide for price adjustments upon certain events. When purchased from
us, the warrant shares may be sold publicly hereunder.
The following table sets forth, to the best of our knowledge,
information concerning the selling stockholders, the number of shares to be
offered and sold by the selling stockholders and the amount of common stock that
will be owned by the selling stockholders following the offering (assuming sale
of all shares of common stock being offered hereby) by the selling stockholders.
<TABLE>
<CAPTION>
Percentage of
Ownership of Common Number of Shares Ownership of Common Stock
Stock Prior to of Common Stock to Common Stock Owned After
Selling Stockholder Offering be Offered After Offering Offering
------------------- -------- ---------- -------------- --------
<S> <C> <C> <C> <C>
1. Capital Trust 89,179 (1) 89,179 (1) 0 *
Investments, Ltd.
2. Allied Capital 103,200 (2) 103,200 (2) 0 *
Corporation
3. Allied Capital 111,800 (3) 111,800 (3) 0 *
Corporation II
4. Princes Gate 112,392 (4) 112,392 (4) 0 *
Investors, L.P.
5. Acorn Partnership 10,823 (5) 10,823 (5) 0 *
I, L.P.
6. PGI Investments 10,714 (6) 10,714 (6) 0 *
Limited
7. PGI Sweden AB 10,714 (7) 10,714 (7) 0 *
</TABLE>
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<TABLE>
<S> <C> <C> <C> <C>
8. Gregor von Opel 5,357 (8) 5,357 (8) 0 *
</TABLE>
- --------------
* Less than 1%.
(1) Includes 61,679 issued shares and 27,500 warrant shares.
(2) Includes 103,200 warrant shares.
(3) Includes 111,800 warrant shares.
(4) Includes 112,392 warrant shares.
(5) Includes 10,823 warrant shares.
(6) Includes 10,714 warrant shares.
(7) Includes 10, 714 warrant shares.
(8) Includes 5,357 warrant shares.
The selling stockholders may sell the common stock covered by this
Prospectus at any price. Sales of these securities at less than the market price
may depress the market price of the common stock. It is anticipated that the
sale of these securities, when made, will be made through customary channels
either through broker-dealers acting as agents or brokers for the seller, or
through broker-dealers acting as principals, who, may then resell the shares in
the over-the-counter market, or at private sales in the over-the-counter market
or otherwise, at negotiated prices related to prevailing market prices at the
time of the sales, or by a combination of such methods. As a result, the period
for the sale of such securities by the selling stockholders may occur over an
extended period of time.
PLAN OF DISTRIBUTION
The common stock offered by this Prospectus may be offered and sold
from time to time by the selling stockholders. As used herein, "selling
stockholders" includes those individuals or entities who may have had shares of
common stock given to them as a gift by a named selling stockholder or after the
date of this Prospectus and any individuals or entities who may have shares of
common stock pledged to them as collateral by a named selling stockholder after
the date of this Prospectus. See "Selling Stockholders." The shares of common
stock covered by this Prospectus may be sold by the selling stockholders in one
or more types of transactions (which may include block transactions) on Nasdaq,
in the over-the-counter market, in negotiated transactions, through put or call
options transactions relating to the shares of common stock, through short sales
of shares of common stock, or a combination of such methods of sale, or
otherwise at prices and at terms then prevailing or at prices related to the
then current market price, or in negotiated transactions. The shares of common
stock may be sold by one or more of the following methods: (a) a block trade in
which the broker or dealer so engaged will attempt to sell the shares of common
stock as agent but may position and resell a portion of the block as principal
in order to facilitate the transaction; (b) a purchase by a broker or dealer as
principal, and the resale by such broker or dealer for its account pursuant to
this Prospectus, including resale to another broker or dealer; or (c) ordinary
brokerage transactions and transactions in which the broker solicits purchasers.
Thus, the period of distribution of these shares of common stock may occur over
an extended period of time. This offering will terminate on the date on which
all shares offered have been sold.
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The selling stockholders may effect such transactions by selling the
shares of common stock directly to purchasers or to or through a broker or
dealer, who may act as an agent or principal. Such broker or dealer may receive
compensation in the form of discounts, concessions, or commissions from the
selling stockholders and/or the purchasers of shares of common stock for whom
such broker or dealer may act as agent or to whom he sells as principal, or both
(which compensation as to a particular broker or dealer might be in excess of
customary commissions). We know of no existing arrangements between any selling
stockholder, broker, dealer, underwriter or agent relating to the sale or
distribution of the shares of common stock.
The selling stockholders will not pay any of the proceeds from the sale
of the shares of common stock to us. We expect to incur expenses in connection
with this offering in the amount of approximately $7,500 for filing, legal,
accounting and miscellaneous fees and expenses. We will not pay for such
expenses as commissions and discounts of brokers, dealers or agents or the fees
and expenses of counsel for the selling stockholders. See "Selling Stockholders"
and "Plan of Distribution". We may receive up to approximately $2,954,563.20
from the selling stockholders' exercise of the warrants. We cannot predict when
and to what extent the selling stockholders will, if at all, exercise the
warrants. We intend to apply the proceeds of any exercise of the warrants to our
general corporate and working capital requirements.
In offering the securities, the selling stockholders and any
broker-dealers and any other participating broker-dealers who execute sales for
the selling stockholders may be deemed to be "underwriters" within the meaning
of Section 2(11) of the Securities Act of 1933, as amended, in connection with
such sales, and any profits realized by the selling stockholders and the
compensation such broker-dealer may be deemed to be underwriting discounts and
commissions. In addition, any shares covered by this Prospectus which qualify
for sale pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to
this Prospectus.
We intend to advise the selling stockholders that while they are
selling the securities, they (1) are required to comply with Regulation M under
the Exchange Act (as described in more detail below), (2) may not engage in any
stabilization activity, except as permitted under the Exchange Act, (3) are
required to furnish each broker-dealer (who may offer this common stock) copies
of this Prospectus, and (4) may not bid for or purchase any securities of Panera
or attempt to induce any person to purchase any securities except as permitted
under the Exchange Act.
Regulation M under the Exchange Act prohibits, with certain exceptions,
participants in a distribution from bidding for or purchasing, for an account in
which the participant has a beneficial interest, any of the securities that are
the subject of the distribution. Regulation M also governs bids and purchases
made in order to stabilize the price of a security in connection with a
distribution of the security.
TRANSFER AGENT
The transfer agent for Panera's common stock is Boston EquiServe
Limited Partnership, 150 Royall Street, Canton, Massachusetts 02021.
LEGAL MATTERS
Certain legal matters relating to the common stock offered by this
Prospectus have been passed upon for us by Gadsby & Hannah LLP, 225 Franklin
Street, Boston, Massachusetts 02110.
-7-
<PAGE>
EXPERTS
The financial statements incorporated in this Prospectus by reference
to the Annual Report on Form 10-K of Au Bon Pain Co., Inc. (renamed Panera Bread
Company) for the year ended December 26, 1998 have been so incorporated in
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of said firm as experts in auditing and accounting.
RECENT DEVELOPMENTS
Except as described in an Annual Report on Form 10-K, a Quarterly
Report on Form 10-Q that we have filed with the SEC, no material changes have
occurred since the end of our fiscal year ended December 26, 1998.
INDEMNIFICATION
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of Panera
pursuant to the following provisions, or otherwise, we have 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.
Delaware General Corporation Law, Section 102(b)(7), enables a
corporation in its original certificate of incorporation or an amendment thereto
validly approved by stockholders to eliminate or limit personal liability of
members of its Board of Directors for violations of a director's fiduciary duty
of care. However, the elimination or limitation shall not apply where there has
been a breach of the duty of loyalty, failure to act in good faith, engaging in
intentional misconduct or knowingly violating a law, paying a dividend or
approving a stock repurchase which is deemed illegal or obtaining an improper
personal benefit. Section Nine of our Certificate of Incorporation includes the
following language:
A Director of the Corporation shall not be liable to the
Corporation 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 Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the General Corporation Law of Delaware [GCL], or
(iv) for any transaction from which the Director derived an improper
personal benefit. If the GCL is amended to authorize corporate action
further eliminating or limiting the personal liability of Directors,
then the liability of a Director of the Corporation shall be eliminated
or limited to the fullest extent permitted by the GCL, as so amended.
Any repeal or modification of this Section 9 by the stockholders of the
Corporation shall not adversely affect any right or protection of a
Director of the Corporation existing at the time of such repeal or
modification.
Delaware General Corporation Law, Section 145, permits a corporation
organized under Delaware law to indemnify directors and officers with respect to
any matter in which the director or officer acted in good faith and in a manner
he reasonably believed to be not opposed to the best interests of the Company,
and, with respect to any criminal action, had reasonable cause to believe his
conduct was lawful. Section Ten of the Company's Certificate of Incorporation
includes the following language:
-8-
<PAGE>
10.1 The Corporation shall indemnify any person who
was or is a party or witness, or is threatened to be made a party or witness, to
any threatened, pending or completed action, suit or proceeding (including,
without limitation, an action, suit or proceeding by or in the right of the
Corporation), whether civil, criminal, administrative or investigative
(including a grand jury proceeding), by reason of the fact that he or she (a) is
or was a Director, officer, employee or agent of the Corporation or, (b) as a
Director, officer, employee or agent of the Corporation, is or was serving at
the request of the Corporation as a Director, officer, employee, agent, partner
or trustee (or in any similar position) of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, to the fullest
extent authorized or permitted by the GCL and any other applicable law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment), against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or her in connection with any appeal thereof; PROVIDED, HOWEVER, that,
except as provided in Section 10.2 hereof with respect to proceedings to enforce
rights to indemnification, the Corporation shall indemnify any such person in
connection with an action, suite or proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such person in connection
with an action, suit or proceeding (or part thereof) initiated by such person
only if the initiation of such action, suit or proceeding (or part thereof) was
authorized by the Board of Directors. Such right to indemnification shall
include the right to payment by the Corporation of expenses incurred in
connection with any such action,
(b) The Corporation may indemnify any person who was
or is a party of 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 or 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 such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or 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 of Chancery or such other court shall deem proper.
(c) 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 subsection (a) and (b)
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 therewith.
(d) Any indemnification under subsection (a) and (b)
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
subsection (a) and (b) of this section. Such determination shall be made (1) by
the Board by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) 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 (3) by the
stockholders.
-9-
<PAGE>
(e) Expenses (including attorneys' fees) incurred by
an officer or director in defending any civil, criminal administrative or
investigative action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director, or officer to repay such
amount if it shall ultimately be determined that such person is not entitled to
be indemnified by the Corporation as authorized in the section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board deems appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of this section shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in such person's official capacity and as to action in another
capacity while holding such office.
(g) The Corporation shall have the power to 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 and incurred by such person in any such capacity, or
arising out of such person's status as such, whether or not the Corporation
would have the power to indemnify a person against such liability under this
section.
(h) The indemnification and advancement of expenses
provided by, or granted pursuant to, this section shall, unless otherwise
provided when authorized or ratified, 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, executor and administrator of such a person.
(i) If a claim for indemnification pursuant to this
section is not paid in full by the Corporation within thirty (30) days after a
written claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expenses of prosecuting such claim. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the applicable standard of conduct
set forth in the GCL for the Corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the corporation (including its Board,
independent legal counsel or stockholders) to have made a determination prior to
the commencement of such action that indemnification of the claimant is proper
in the circumstances because he or she has met the applicable standard of
conduct set forth in the GCL, nor an actual determination by the Corporation
(including its Board, independent legal counsel or stockholders) that the
claimant has not met such applicable standard of conduct.
We maintain a directors, officers and corporate liability insurance
policy in the amount of five million dollars ($5,000,000).
-10-
<PAGE>
PART II INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses payable in
connection with the sale and distribution of the securities being registered,
other than underwriting discounts and commissions. All of the amounts shown are
estimates, except for the SEC registration fee. We do not expect our expenses in
connection with this offering to exceed $7,500.
<TABLE>
<S> <C>
SEC registration fee..........................................$ 797.03
Accounting fees and expenses..................................$ 2,500.00
Legal fees and expenses.......................................$ 5,000.00
Miscellaneous.................................................$ 402.97
----------
Total................................................$ 8,700.00
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of Panera
pursuant to the following provisions, or otherwise, we have 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.
Delaware General Corporation Law, Section 102(b)(7), enables a
corporation in its original certificate of incorporation or an amendment thereto
validly approved by stockholders to eliminate or limit personal liability of
members of its Board of Directors for violations of a director's fiduciary duty
of care. However, the elimination or limitation shall not apply where there has
been a breach of the duty of loyalty, failure to act in good faith, engaging in
intentional misconduct or knowingly violating a law, paying a dividend or
approving a stock repurchase which is deemed illegal or obtaining an improper
personal benefit. The EIGHTH Article of our Certificate of Incorporation
includes the following language:
A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director for any act or omission; PROVIDED,
HOWEVER, that the foregoing shall not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct for a knowing
violation of law, (iii) under Section 174 of the [Delaware General
Corporation Law ("GCL")], or (iv) for any transaction from which the
Director derived an improper personal benefit. If the GCL is hereafter
amended to permit further elimination or limitation of the personal
liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent
permitted by the GCL as so amended. Any repeal or modification of this
Article EIGHT by the stockholders of the Corporation or otherwise shall
not apply to or have any effect on the liability or alleged liability
of any director of the Corporation for or with respect to any acts or
omission of such director occurring prior to such amendment or repeal.
II-1
<PAGE>
Delaware General Corporation Law, Section 145, permits a corporation
organized under Delaware law to indemnify directors and officers with respect to
any matter in which the director or officer acted in good faith and in a manner
he reasonably believed to be not opposed to the best interests of Panera, and,
with respect to any criminal action, had reasonable cause to believe his conduct
was lawful. The NINTH Article of our Certificate of Incorporation includes the
following language:
(a) The Corporation shall, to the fullest extent
permitted by Section 145 of the GCL, 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 if the Corporation)
against any and all of the expenses (including attorney's fees), judgment, fines
and amounts paid in settlement actually or reasonably incurred by such person by
reason of having been an officer, director, employee or agent at the request of
the Corporation, any subsidiary of the Corporation or of any other corporation,
partnership, joint venture, trust or other enterprise for which any and all
persons who acted as officer, director, employee or agent at the request of the
Corporation, if such person 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 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 proceedings, had reasonably cause to
believe that his conduct was unlawful.
(b) The Corporation may indemnify any person who was
or is a party of 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 or 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 such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or 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 of Chancery or such other court shall deem proper.
(c) 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 subsection (a) and (b)
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 therewith.
(d) Any indemnification under subsection (a) and (b)
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
subsection (a) and (b) of this section. Such determination shall be made (1) by
the Board by a majority vote of a quorum consisting of directors who were not
parties to
II-2
<PAGE>
such action, suit or proceeding, or (2) 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 (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by
an officer or director in defending any civil, criminal administrative or
investigative action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director, or officer to repay such
amount if it shall ultimately be determined that such person is not entitled to
be indemnified by the Corporation as authorized in the section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board deems appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of this section shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in such person's official capacity and as to action in another
capacity while holding such office.
(g) The Corporation shall have the power to 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 and incurred by such person in any such capacity, or
arising out of such person's status as such, whether or not the Corporation
would have the power to indemnify a person against such liability under this
section.
(h) The indemnification and advancement of expenses
provided by, or granted pursuant to, this section shall, unless otherwise
provided when authorized or ratified, 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, executor and administrator of such a person.
(i) If a claim for indemnification pursuant to this
section is not paid in full by the Corporation within thirty (30) days after a
written claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expenses of prosecuting such claim. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the applicable standard of conduct
set forth in the GCL for the Corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the corporation (including its Board,
independent legal counsel or stockholders) to have made a determination prior to
the commencement of such action that indemnification of the claimant is proper
in the circumstances because he or she has met the applicable standard of
conduct set forth in the GCL, nor an actual determination by the Corporation
(including its Board, independent legal counsel or stockholders) that the
claimant has not met such applicable standard of conduct.
We maintain a directors, officers and corporate liability insurance
policy in the amount of five million dollars ($5,000,000).
II-3
<PAGE>
ITEM 16. EXHIBITS
<TABLE>
<S> <C>
4.1 Certificate of Incorporation, as amended to June 2, 1991,
incorporated by reference to Exhibit 3.1 to the Annual Report
on Form 10-K for the fiscal year ended December 31, 1994 (File
No. 0-19253) and hereby incorporated by reference.
4.2 Certificates of Amendment of the Certificate of Incorporation
filed with the State of Delaware on June 3, 1991 incorporated
by reference to Exhibit 3.1.1 of the Annual Report on Form
10-K for the fiscal year ended December 31, 1994 (File No.
0-19253) and Certificate of Amendment of the Certificate of
Incorporation filed with the State of Delaware on June 13,
1994 incorporated by reference to Exhibit 3.1.2 of the Annual
Report on Form 10-K for the fiscal year ended December 31,
1994 (File No. 0-19253).
4.3 Certificate of Designations, Preferences and Rights of Class B
Preferred Stock (Series 1) filed with the State of Delaware on
November 30, 1994 incorporated by reference to Exhibit 3.1.3
of the Annual Report on Form 10-K for the fiscal year ended
December 31, 1994 (File No. 0-19253) and Certificate of
Designation of Series A Junior Participating Class B Preferred
Stock filed with the State of Delaware on November 8, 1996
incorporated by reference to Exhibit 2.3 of the Form 8-A filed
on November 1, 1996 (File No. 0-19253), as amended.
4.4 Amended and Restated Bylaws filed as Exhibit 3(ii) to the
Form 8-K filed on June 12, 1996 and hereby incorporated by
reference.
4.5 Certificate of Amendment of the Certificate of Incorporation
filed with the State of Delaware on May 17, 1999.
5 Opinion of Gadsby & Hannah LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Gadsby & Hannah LLP (included in Opinion filed as
Exhibit 5).
24 Power of Attorney.
</TABLE>
ITEM 17. UNDERTAKINGS
(a) We hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement;
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities
II-4
<PAGE>
offered would not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) to include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial BONA FIDE offering thereof; 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 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 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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on
June 17, 1999.
PANERA BREAD COMPANY
By /s/ Ronald M. Shaich
------------------------------------------
Ronald M. Shaich,
Chairman and Chief Executive Officer
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
date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Ronald M. Shaich Chairman of the Board, June 17, 1999
- -------------------------------------- Chief Executive Officer
Ronald M. Shaich and Director (Principal
Executive Officer)
/s/ William W. Moreton Chief Financial Officer June 17, 1999
- -------------------------------------- (Principal Financial and
William W. Moreton Accounting Officer)
/s/ Richard C. Postle President and Chief June 17, 1999
- -------------------------------------- Operating Officer
Richard C. Postle
/s/ George E. Kane Director June 17, 1999
- --------------------------------------
George E. Kane
/s/ Henry J. Nasella Director June 17, 1999
- --------------------------------------
Henry J. Nasella
</TABLE>
II-6
<PAGE>
EXHIBIT LIST
<TABLE>
<S> <C>
4.1 Certificate of Incorporation of the Company, as amended to
June 2, 1991, incorporated by reference to Exhibit 3.1 to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994 (File No. 0-19253) and hereby incorporated
by reference.
4.2 Certificates of Amendment of the Certificate of Incorporation
of the Company dated filed with the State of Delaware on June
3, 1991 incorporated by reference to Exhibit 3.1.1 of the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994 (File No. 0-19253) and Certificate of
Amendment of the Certificate of Incorporation of the Company
filed with the State of Delaware on June 13, 1994 incorporated
by reference to Exhibit 3.1.2 of the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 1994 (File
No. 0-19253).
4.3 Certificate of Designations, Preferences and Rights of Class B
Preferred Stock (Series 1) filed with the State of Delaware on
November 30, 1994 incorporated by reference to Exhibit 3.1.3
of the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1994 (File No. 0-19253) and
Certificate of Designation of Series A Junior Participating
Class B Preferred Stock filed with the State of Delaware on
November 8, 1996 incorporated by reference to Exhibit 2.3 of
the Company's Form 8-A filed on November 1, 1996 (File No.
0-19253), as amended.
4.4 Amended and Restated Bylaws of the Company filed as Exhibit
3(ii) to the Company's Form 8-K filed on June 12, 1996 and
hereby incorporated by reference.
4.5 Certificate of Amendment of the Certificate of Incorporation
filed with the State of Delaware on May 17, 1999.
5 Opinion of Gadsby & Hannah LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Gadsby & Hannah LLP (included in Opinion filed as
Exhibit 5).
24 Power of Attorney
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<PAGE>
EXHIBIT 4.5
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Pursuant to Section 242 of the General Corporation Law
of the State of Delaware
------------------------
Au Bon Pain Co., Inc., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of the Corporation,
resolutions were duly adopted to recommend to the stockholders of the
Corporation that the stockholders authorize and approve an amendment to the
Certificate of Incorporation of the Corporation whereby the name of the
Corporation would be changed to "Panera Bread Company", declaring said amendment
to be advisable and calling a meeting of said stockholders for consideration
thereof.
SECOND: That thereafter, pursuant to the resolution of its Board of Directors, a
special meeting of the stockholders of the Corporation was duly called and held
and the necessary number of shares as required by statute were voted in favor of
the amendment.
THIRD: That as recommended by the Board of Directors and as approved by the
stockholders of the Corporation, the First Article of the Certificate of
Incorporation of the Corporation shall be deleted and replaced with the
following:
"1. The name of the corporation is Panera Bread Company."
FOURTH: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by Ronald M. Shaich, its Co-Chairman and Chief Executive Officer, this 17
day of May, 1999.
Au Bon Pain Co., Inc.
By: /s/ Ronald M. Shaich
-------------------------------------
Ronald M. Shaich
Its: Co-Chairman
and Chief Executive Officer
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<PAGE>
EXHIBIT 5
---------
Gadsby & Hannah LLP
225 Franklin Street
Boston, MA 02110
June 17, 1999
Board of Directors
Panera Bread Company
7930 Big Bend Boulevard
Webster Grove, MO 63119
Gentlemen:
You have requested our opinion, as counsel to Panera Bread Company (the
"Company"), with respect to certain matters in connection with a proposed
offering (the "Offering") of up to 454,179 shares of the Company's Class A
Common Stock, $.0001 par value (the "Shares") to be made pursuant to a
Registration Statement on Form S-3 filed with the Securities and Exchange
Commission on or about June 16, 1999 (the "Registration Statement").
In rendering this opinion, we have reviewed, among other documents, the
Company's Certificate of Incorporation, the Company's Bylaws, and the minutes of
the Company's Board of Directors relating to the Offering. We have also
considered such statutes, rules and regulations as we have deemed relevant for
the purposes hereof.
We express no legal opinion upon any matter other than those explicitly
addressed in the numbered paragraphs below, and our express opinions therein
contained shall not be interpreted to be implied opinions upon any other matter.
Based on the foregoing, it is our opinion that:
1. The Company is duly incorporated, validly existing and in good standing
under the laws of the State of Delaware.
2. The Shares to be sold by the Company, when issued and sold pursuant to
the Registration Statement, will be validly authorized, legally issued, fully
paid and non-assessable.
We hereby consent to the filing of this opinion letter as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Gadsby & Hannah LLP
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<PAGE>
EXHIBIT 23.1
------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 17, 1999, except for Note 17
as to which the date is March 4, 1999, and Notes 5 and 8, as to which the date
is March 25, 1999, relating to the consolidated financial statements and
financial statement schedule, which appears in Au Bon Pain Co., Inc.'s (renamed
Panera Bread Company) Annual Report on Form 10-K for the year ended December 26,
1998. We also consent to the reference to us under the heading "Experts" in such
Registration Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Boston, Massachusetts
June 15, 1999
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<PAGE>
EXHIBIT 24
----------
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ronald M. Shaich individually, his
attorneys-in-fact, with the power of substitution, for him in any and all
capacities, to sign any and all amendments to this Registration Statement
(including post-effective amendments), and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that said
attorneys-in-fact, or their respective substitutes, may do or cause to be done
by virtue hereof.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ George E. Kane Director June 17, 1999
- ---------------------------------------
George E. Kane
/s/ Henry J. Nasella Director June 17, 1999
- ---------------------------------------
Henry J. Nasella
</TABLE>
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