As filed with the Securities and Exchange Commission on June 27, 1997
Registration No. 333- -------
_____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------------
TCBY ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
Delaware 71-0552115
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1100 TCBY Tower
425 West Capitol Avenue
Little Rock, Arkansas 72201
(501) 688-8229
(Address of Principal Executive Offices)
----------------------
1992 EMPLOYEE STOCK OPTION PLAN OF
TCBY ENTERPRISES, INC.
(full title of the plan)
----------------------
Copies of Communications to:
William P. Creasman Richard N. Massey, Esq.
1100 TCBY Tower, 425 W. Capitol Rose Law Firm
Little Rock, Arkansas 72201 A Professional Association
(501) 688-8229 120 East Fourth Street
(Name, address, including zip code) Little Rock, AR 72201
and telephone number, including (501) 375-9131
area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registered registered offering price per aggregate offering registration fee
share price
<S> <C> <C> <C> <C>
Common Stock 3,000,000 Shares $ 6.25 (2) $ 18,750,000 (2) $ 5,681.82
(par value $.10)(1)
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers (to the extent applicable to the
<PAGE>
Plan) an indeterminate amount of interests to be offered or sold pursuant to
the plan.
(2) Calculated pursuant to Rule 457(c) based upon the average of the high
and low prices for the common stock as reported by the New York Stock
Exchange on July 3, 1997.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the registration statement in accordance with Rule
428 under the Securities Act of 1933 ("Securities Act") and the Note to Part
I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by TCBY Enterprises, Inc. ("Registrant" or
"Corporation") with the Securities and Exchange Commission are incorporated
by reference in this registration statement:
(1) Registrant's Annual Report on Form 10-K for the fiscal year ended
November 30, 1996 filed pursuant to Section 13(a) of the Securities Exchange
Act of 1934 (the "Exchange Act").
(2) Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 2, 1997.
(3) The description of Registrant's common stock contained in Item 1.
of the Registrant's registration statement on Form 8-A dated September 9,
1988, registering its common stock under Section 12(b) of the Exchange Act,
and any amendment or report filed for the purpose of updating such
description.
In addition, all documents subsequently filed by Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this registration
statement and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
<PAGE>
Section 5 of Article IX of the Corporation's By-laws provides for
indemnification of directors and officers as follows:
Section 5. Indemnification of Directors, Officers, Employees and
Agents. 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 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 servicing 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 attorney's fees) and judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding in accordance with, and, to the maximum extent
permitted from time to time by the General Corporation law of the State of
Delaware.
Section 145 of the Delaware General Corporation Law authorizes
indemnification of directors, officers, employees and agents of the
Corporation; allows the advancement of costs of defending against litigation;
and permits companies incorporated in Delaware to purchase insurance on
behalf of directors, officers, employees and agents against liabilities
whether or not in the circumstances such companies would have the power to
indemnify against such liabilities under the provisions of the statute.
The Corporation has obtained an insurance policy in the amount of
$5,000,000 which (i) provides for the payment by the insurer of all amounts
which the Corporation may legally pay to officers and directors as
indemnification, excluding certain fines and penalties which are legally
uninsurable, and (ii) insures the Corporation's officers and directors
against certain claims which are not indemnified by the Corporation.
Article NINTH of the Corporation's Certificate of Incorporation
eliminates directors liability for monetary damages arising out of a breach
of their fiduciary duty of care as follows:
NINTH: No director of this Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty by such director as a director; provided, however, that this
Article NINTH shall not eliminate or limit the liability of a director to the
extent provided by applicable law (i) for any breach of the directors 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
the State of Delaware, or (iv) for any transaction from which the director
derives an improper personal benefit. No amendment to or repeal of this
Article NINTH shall apply to or have any effect on the liability of any
director of the Corporation for or with respect to any acts or omissions of
such director and occurring prior to such amendment or repeal.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS
The following is a list of Exhibits and also serves as the Exhibit
Index.
<PAGE>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
(4) 1992 Employee Stock Option Plan of TCBY Enterprises, Inc.,
previously filed as Exhibit 1 to the Corporation's Proxy Statement for 1992.
(5) Opinion of Rose Law Firm, a Professional Association
(23.1) Consent of Ernst & Young LLP, independent auditors
(23.2) Consent of Rose Law Firm, a Professional Association (included as
part of Exhibit 5)
(24) Powers of Attorney
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. 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) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration statement
or any material change to such information in this registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section
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 Exchange Act that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
<PAGE>
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act)
that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Little Rock, State of Arkansas, on the 27th day of
June, 1997.
TCBY ENTERPRISES, INC.
(Registrant)
By:/s/ Frank D. Hickingbotham*
---------------------------
Frank D. Hickingbotham, Chairman of the
Board of Directors and Chief Executive
Officer
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on
the date indicated.
Signature Title Date
/s/ Frank D. Hickingbotham* Director, Chairman of the June 20, 1997
-------------------------- Board and Chief Executive Officer
<PAGE>
Frank D. Hickingbotham (Principal Executive Officer)
/s/ Herren C. Hickingbotham* Director, President and Chief June 20, 1997
--------------------------- Operating Officer
Herren C. Hickingbotham
/s/ Daniel R. Grant* Director June 20, 1997
---------------------------
Daniel R. Grant
/s/ F. Todd Hickingbotham* Director, President June 20, 1997
--------------------------- Riverport Equipment and
F. Todd Hickingbotham Distribution Company, Inc.
/s/ William H. Bowen* Director June 20, 1997
---------------------------
William H. Bowen
/s/ Marvin D. Loyd* Director June 20, 1997
---------------------------
Marvin D. Loyd
/s/ Hugh H. Pollard* Director June 20, 1997
---------------------------
Hugh H. Pollard
/s/ Don O. Kirkpatrick* Director June 20, 1997
---------------------------
Don O. Kirkpatrick
/s/ Gene H. Whisenhunt Executive Vice President, June 27, 1997
--------------------------- Treasurer and Chief Financial
Gene H. Whisenhunt Officer (Principal Financial
Officer)
*By: /s/ Gene H. Whisenhunt
------------------------
Gene H. Whisenhunt, Attorney-in-Fact
<PAGE>
Exhibit 5
ROSE LAW FIRM
a Professional Association
120 East Fourth Street
Little Rock, Arkansas 72201
TCBY Enterprises, Inc.
1100 TCBY Tower
425 West Capitol Avenue
Little Rock, Arkansas 72201
Re: TCBY Enterprises, Inc. Form S-8 Registration Statement- 1992 Employee
Stock Option Plan of TCBY Enterprises, Inc.
Ladies and Gentlemen:
We are acting as counsel for TCBY Enterprises, Inc. (the "Corporation")
in connection with the registration under the Securities Act of 1933, as
amended, of 3,000,000 shares of the Corporation's Common Stock, $.10 par
value, to be issued from time to time pursuant to the Corporation's 1992
Employee Stock Option Plan.
We have examined such documents, records, and matters of law as we have
deemed necessary for purposes of this opinion. Based on such examination and
on the assumptions set forth below, we are of the opinion that the shares
that may be issued and sold pursuant to the Plan and the authorized forms of
stock option agreements thereunder will be, when issued in accordance with
the Plan and such stock option agreements, validly issued, fully paid, and
nonassessable.
In rendering the foregoing opinion, we have relied as to certain factual
matters upon certificates of officers of the Company and public officials,
and we have not independently checked or verified the accuracy of the
statements contained therein. In addition, our examination of the matters of
law has been limited to the General Corporation Law of the state of Delaware
and the federal laws of the United States of America, in each case as in
effect on the date hereof.
We hereby consent to the use of this opinion as an exhibit to the
referenced registration statement.
Very truly yours,
ROSE LAW FIRM, a Professional Association
By: /s/ Richard N. Massey
-------------------------
Richard N. Massey
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 333- -----) pertaining to the 1992 Employee Stock Option Plan
of TCBY Enterprises, Inc. for the registration of 3,000,000 shares of its
common stock, of our report dated January 9, 1997, with respect to the
consolidated financial statements of TCBY Enterprises, Inc. included in its
Annual Report (Form 10-K) for the year ended November 30, 1996, filed with
the Securities and Exchange Commission.
ERNST & YOUNG LLP
Little Rock, Arkansas
June 23, 1997
<PAGE>
Exhibit 24
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Frank D. Hickingbotham, Herren C. Hickingbotham and Gene H.
Whisenhunt or any of them his true and lawful attorney in fact and agent with
full powers of substitution and resubstitution for him and in his name, place
and stead, in any and all capacities to sign a registration statement on Form
S-8, and any or all amendments thereto (including post-effective amendments)
to be filed by TCBY Enterprises, Inc. with respect to the registration and
issuance of up to 3,000,000 shares of common stock, $.10 par value, pursuant
to the 1992 Employee Stock Option Plan of TCBY Enterprises, Inc., and to file
same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney in
fact and agent, full powers 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 for all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney in fact and agent or
his substitute(s), may lawfully do or cause to be done by virtue hereof.
/s/ Daniel R. Grant
- ------------------------------
Daniel R. Grant June 20, 1997
<PAGE>
Exhibit 24
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Frank D. Hickingbotham, Herren C. Hickingbotham and Gene H.
Whisenhunt or any of them his true and lawful attorney in fact and agent with
full powers of substitution and resubstitution for him and in his name, place
and stead, in any and all capacities to sign a registration statement on Form
S-8, and any or all amendments thereto (including post-effective amendments)
to be filed by TCBY Enterprises, Inc. with respect to the registration and
issuance of up to 3,000,000 shares of common stock, $.10 par value, pursuant
to the 1992 Employee Stock Option Plan of TCBY Enterprises, Inc., and to file
same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney in
fact and agent, full powers 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 for all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney in fact and agent or
his substitute(s), may lawfully do or cause to be done by virtue hereof.
/s/ Don Kirkpatrick
- ------------------------------
Don Kirkpatrick June 20, 1997
<PAGE>
Exhibit 24
<PAGE>
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Frank D. Hickingbotham, Herren C. Hickingbotham and Gene H.
Whisenhunt or any of them his true and lawful attorney in fact and agent with
full powers of substitution and resubstitution for him and in his name, place
and stead, in any and all capacities to sign a registration statement on Form
S-8, and any or all amendments thereto (including post-effective amendments)
to be filed by TCBY Enterprises, Inc. with respect to the registration and
issuance of up to 3,000,000 shares of common stock, $.10 par value, pursuant
to the 1992 Employee Stock Option Plan of TCBY Enterprises, Inc., and to file
same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney in
fact and agent, full powers 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 for all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney in fact and agent or
his substitute(s), may lawfully do or cause to be done by virtue hereof.
/s/ Marvin D. Loyd
- ------------------------------
Marvin D. Loyd June 20, 1997
<PAGE>
Exhibit 24
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Frank D. Hickingbotham, Herren C. Hickingbotham and Gene H.
Whisenhunt or any of them his true and lawful attorney in fact and agent with
full powers of substitution and resubstitution for him and in his name, place
and stead, in any and all capacities to sign a registration statement on Form
S-8, and any or all amendments thereto (including post-effective amendments)
to be filed by TCBY Enterprises, Inc. with respect to the registration and
issuance of up to 3,000,000 shares of common stock, $.10 par value, pursuant
to the 1992 Employee Stock Option Plan of TCBY Enterprises, Inc., and to file
same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney in
fact and agent, full powers 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 for all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney in fact and agent or
his substitute(s), may lawfully do or cause to be done by virtue hereof.
/s/ Frank D. Hickingbotham
- ------------------------------
Frank D. Hickingbotham June 20, 1997
<PAGE>
Exhibit 24
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
<PAGE>
appoints Frank D. Hickingbotham, Herren C. Hickingbotham and Gene H.
Whisenhunt or any of them his true and lawful attorney in fact and agent with
full powers of substitution and resubstitution for him and in his name, place
and stead, in any and all capacities to sign a registration statement on Form
S-8, and any or all amendments thereto (including post-effective amendments)
to be filed by TCBY Enterprises, Inc. with respect to the registration and
issuance of up to 3,000,000 shares of common stock, $.10 par value, pursuant
to the 1992 Employee Stock Option Plan of TCBY Enterprises, Inc., and to file
same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney in
fact and agent, full powers 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 for all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney in fact and agent or
his substitute(s), may lawfully do or cause to be done by virtue hereof.
/s/ Hugh H. Pollard
- ------------------------------
Hugh H. Pollard June 20, 1997
<PAGE>
Exhibit 24
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Frank D. Hickingbotham, Herren C. Hickingbotham and Gene H.
Whisenhunt or any of them his true and lawful attorney in fact and agent with
full powers of substitution and resubstitution for him and in his name, place
and stead, in any and all capacities to sign a registration statement on Form
S-8, and any or all amendments thereto (including post-effective amendments)
to be filed by TCBY Enterprises, Inc. with respect to the registration and
issuance of up to 3,000,000 shares of common stock, $.10 par value, pursuant
to the 1992 Employee Stock Option Plan of TCBY Enterprises, Inc., and to file
same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney in
fact and agent, full powers 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 for all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney in fact and agent or
his substitute(s), may lawfully do or cause to be done by virtue hereof.
/s/ William H. Bowen
- ------------------------------
William H. Bowen June 20, 1997
<PAGE>
Exhibit 24
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Frank D. Hickingbotham, Herren C. Hickingbotham and Gene H.
Whisenhunt or any of them his true and lawful attorney in fact and agent with
full powers of substitution and resubstitution for him and in his name, place
and stead, in any and all capacities to sign a registration statement on Form
<PAGE>
S-8, and any or all amendments thereto (including post-effective amendments)
to be filed by TCBY Enterprises, Inc. with respect to the registration and
issuance of up to 3,000,000 shares of common stock, $.10 par value, pursuant
to the 1992 Employee Stock Option Plan of TCBY Enterprises, Inc., and to file
same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney in
fact and agent, full powers 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 for all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney in fact and agent or
his substitute(s), may lawfully do or cause to be done by virtue hereof.
/s/ Herren C. Hickingbotham
- ------------------------------
Herren C. Hickingbotham June 20, 1997
<PAGE>
Exhibit 24
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Frank D. Hickingbotham, Herren C. Hickingbotham and Gene H.
Whisenhunt or any of them his true and lawful attorney in fact and agent with
full powers of substitution and resubstitution for him and in his name, place
and stead, in any and all capacities to sign a registration statement on Form
S-8, and any or all amendments thereto (including post-effective amendments)
to be filed by TCBY Enterprises, Inc. with respect to the registration and
issuance of up to 3,000,000 shares of common stock, $.10 par value, pursuant
to the 1992 Employee Stock Option Plan of TCBY Enterprises, Inc., and to file
same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney in
fact and agent, full powers 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 for all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney in fact and agent or
his substitute(s), may lawfully do or cause to be done by virtue hereof.
/s/ F. Todd Hickingbotham
- ------------------------------
F. Todd Hickingbotham June 20, 1997
<PAGE>
