SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ADVANTICA RESTAURANT GROUP, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3487402
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
203 EAST MAIN STREET, SPARTANBURG, SC 29319
(Address of Principal Executive Offices) (Zip Code)
ADVANTICA RESTAURANT GROUP STOCK OPTION PLAN
(Full title of the plan)
----------------------------------------
RHONDA J. PARISH, ESQ.
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
ADVANTICA RESTAURANT GROUP, INC.
203 EAST MAIN STREET
SPARTANBURG, SOUTH CAROLINA 29319
(864) 597-8000
(Name, address and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF Amount to be Proposed PROPOSED Amount of
SECURITIES TO BE Registered Maximum MAXIMUM Registration
REGISTERED Offering Price AGGREGATE Fee
Per Share OFFERING
PRICE
<S> <C> <C> <C> <C>
Common Stock, $.01 par 4,888,888 $ 8.781 (1) $ 42,929,326 (1) $ 12,664
value
- ----------------------- ------------ --------------- ----------------- -------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, based upon
the average of the high and low prices of the Registrant's Common Stock
reported on the Nasdaq Stock Market(SM) on May 13, 1998, which prices
were $8.875 and $8.6875, respectively.
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 (plan information and registrant information) will be sent or given to
employees as specified by Rule 428(b)(1) of the Securities and Exchange
Commission. Such documents need not be filed with the Commission either as part
of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424. These documents, which include the statement of
availability required by Item 2 of Form S-8, and the documents incorporated by
reference in this Registration Statement pursuant to Item 3 of Part II hereof,
taken together, constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Advantica Restaurant Group,
Inc. (the "Registrant") with the Securities and Exchange Commission (the
"Commission") and are hereby incorporated by reference in this Registration
Statement:
(1) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997, filed with the Commission pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended (the "1934 Act");
(2) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended April 1, 1998;
(3) The Registrant's current reports on Form 8-K reporting events
occurring on January 7, 1998, January 15, 1998 and April 1, 1998; and
(4) The section entitled "Description of Registrant's Securities To
Be Registered" in Registrant's Registration Statement on Form 8-A, filed with
the Commission pursuant to the 1934 Act.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the 1934 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.
Advantica Restaurant Group, Inc. ("Advantica") is a Delaware
corporation. Reference is made to Section 102(b)(7) of the Delaware General
Corporation Law (the "DGCL"), which enables a corporation in its original
certificate of incorporation or an amendment thereto to eliminate or limit the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except (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) pursuant to Section 174 of the
DGCL (providing for liability of directors for unlawful payment of dividends or
unlawful stock purchases or redemptions) or (iv) for any transaction from which
a director derived an improper personal benefit.
<PAGE>
Reference is also made to Section 145 of the DGCL, which provides that
a corporation may indemnify any persons, including officers and directors, who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person is or was an officer,
director, employee or agent of such corporation or is or was serving at the
request of such corporation as an officer, director, employee or agent of
another corporation or enterprise. The indemnity may include expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such officer, director, employee or agent acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct was unlawful. A
Delaware corporation may indemnify officers, directors, employees and agents in
an action by or in the right of the corporation under the same conditions,
except that no indemnification is permitted without judicial approval if the
officer, director, employee or agent is adjudged to be liable to the
corporation. Where an officer, director, employee or agent is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses that such officer, director,
employee or agent actually and reasonably incurs.
Advantica's Restated Certificate of Incorporation and By-Laws provide
for indemnification of its officers and directors to the full extent permitted
under Delaware law. Specifically, Articles Sixth and Seventh of the Restated
Certificate of Incorporation provide for indemnification of officers and
directors to the extent permitted by Section 145 of the DGCL and the elimination
of liability of directors to the extent permitted by Section 102(b)(7) of the
DGCL, and Article 5, Section 14 of the By-Laws provides for indemnification of
officers and directors to the extent permitted by Section 145 of the DGCL.
Consequently, the registrant maintains officers' and directors' liability
insurance for the benefit of its officers and directors. The Employment
Agreement dated as of January 7, 1998 between Advantica and James B. Adamson
also provides for indemnification by the Company to the extent permitted by
Delaware law and, in connection therewith, calls for the advancement of
attorney's fees and expenses (subject to repayment in certain circumstances).
The Registration Rights Agreement, dated as of January 7, 1998, among Advantica
and each of the holders of registrable securities named therein, provides for
indemnification by Advantica of the holder of registrable securities that is a
party thereto for control person liability, if any, in respect of certain claims
under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
ITEM 8. EXHIBITS
The following exhibits are filed as a part of this Registration
Statement:
EXHIBIT NO. DESCRIPTION
- ------------ -----------
*4.1 Advantica Restaurant Group Stock Option Plan (incorporated by
reference to Exhibit 10.43 to Amendment No. 1 to Advantica's
Registration Statement on Form S-1 (No. 333-45811)).
5.1 Opinion letter of J. Scott Melton, Esq., regarding the legality
of the securities being registered.
23.1 Consent of Deloitte & Touche, LLP.
24.1 Power of Attorney (contained on the signature page to the
Registration Statement).
* Certain of the exhibits to this Registration Statement, indicated by an
asterisk, are hereby incorporated by reference to other documents on file with
the Commission with which they are physically filed, to be part hereof as of
their respective dates.
<PAGE>
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) That for the purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
<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-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Spartanburg, State of South Carolina, on this 8th day
of April, 1998.
ADVANTICA RESTAURANT GROUP, INC.
By: /s/ RHONDA J. PARISH
---------------------------
Rhonda J. Parish
Executive Vice President,
General Counsel and Secretary
Each person whose signature appears below constitutes and appoints
Rhonda J. Parish as his or her lawful attorney-in-fact and agent, acting alone,
with full power of substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign any or all
amendments (including, post-effective amendments) to this Registration Statement
and to file the 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, acting alone, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, acting alone, or his or her substitute or
substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to
the requirements of the Securities Act of 1933, this Registration Statement has
been signed by the following persons in the capacities and on the dates
indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ JAMES B. ADAMSON Director, Chairman, President April 8, 1998
- ----------------------------- and Chief Executive Officer
(James B. Adamson) (Principal Executive Officer)
/s/ RONALD B. HUTCHISON Executive Vice President and April 8, 1998
- ----------------------------- Chief Financial Officer
(Ronald B. Hutchison) (Principal Financial and
Accounting Officer)
/s/ ROBERT H. ALLEN Director April 8, 1998
- -----------------------------
(Robert H. Allen)
/s/ RONALD E. BLAYLOCK Director April 8, 1998
- -----------------------------
(Ronald E. Blaylock)
/s/ VERA KING FARRIS Director April 8, 1998
- -----------------------------
(Vera King Farris)
/s/ JAMES J. GAFFNEY Director April 8, 1998
- -----------------------------
(James J. Gaffney)
/s/ IRWIN N. GOLD Director April 8, 1998
- -----------------------------
(Irwin N. Gold)
/s/ ROBERT E. MARKS Director April 8, 1998
- -----------------------------
(Robert E. Marks)
/s/ CHARLES F. MORAN Director April 8, 1998
- -----------------------------
(Charles F. Moran)
/s/ ELIZABETH A. SANDERS Director April 8, 1998
- -----------------------------
(Elizabeth A. Sanders)
/s/ DONALD R. SHEPHERD Director April 8, 1998
- -----------------------------
(Donald R. Shepherd)
<PAGE>
May 18, 1998
Advantica Restaurant Group, Inc.
203 East Main Street
Spartanburg, SC 29319
Ladies and Gentlemen:
As Assistant General Counsel of Advantica Restaurant Group, Inc., I am
familiar with the Registration Statement to be filed by Advantica, on or about
May 19, 1998, with the Securities and Exchange Commission with respect to the
4,888,888 shares of Advantica $.01 par value common stock issuable under the
Advantica Restaurant Group Stock Option Plan.
It is my opinion that the Advantica $.01 par value common stock to be
registered, when sold or issued hereafter upon the exercise of stock options in
accordance with the provisions of said plan and upon payment of the
consideration for such shares as contemplated by said plan, will be validly
issued, fully paid and nonassessable.
I hereby consent to the use of this opinion as Exhibit 5(a) to the above
mentioned Registration Statement.
Sincerely,
/s/ J. Scott Melton
- -------------------
J. Scott Melton
Assistant General Counsel
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Advantica Restaurant Group, Inc. (formerly Flagstar Companies, Inc.) on Form S-8
of our report dated February 20, 1998, appearing in the Annual Report on Form
10-K of Advantica Restaurant Group, Inc., for the year ended December 31, 1997.
/s/ Deloitte & Touche LLP
- -------------------------
DELOITTE & TOUCHE LLP
Greenville, South Carolina
May 18, 1998
(The Power of Attorney is contained on the
signature page to the Registration Statement)
