SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
-----------------------
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 of organization) Identification No.)
203 East Main Street, Spartanburg, SC 29319
(Address of Principal Executive Offices) (Zip Code)
Advantica Stock Option Plan
(Full title of the plan)
Advantica Restaurant Group Director Stock Option Plan
(Full title of the plan)
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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)
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CALCULATION OF REGISTRATION FEE
Title of Securities Amount to Be Proposed Proposed Amount of
to Be Registered Registered (1) Maximum Maximum Registration Fee
Offering Price Per Aggregate
Share Offering Price
- ------------------------- ------------------------ ------------------------ ------------------------ ------------------------
<S> <C> <C> <C>
Common Stock, 2,652,000 shares $ 1.3125 (2) $3,480,750 $919.00
$.01 par value 48,000 shares $10.00 (3) $ 480,000 $127.00
Total
- ------------------------- ------------------------ ------------------------ ------------------------ ------------------------
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(1) 4,888,888 shares were previously registered under Registration No.
333-53031 for issuance under the Advantica Restaurant Group Stock Option
Plan (the "Non-Officer Plan") or the Advantica Restaurant Group Officer
Stock
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Option Plan (the "Officer Plan"), which plans were subsequently
merged together, with the name of the surviving plan being changed to the
Advantica Stock Option Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933 (the "Securities
Act") and based on the average of the highest and lowest prices at which
shares of Common Stock of Advantica Restaurant Group, Inc. ("Advantica" or
the "Company") were sold on January 27, 2000 on the NASDAQ SmallCap Market.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) under the Securities Act and based on the
exercise price of $10.00 per share of the options for shares of Common
Stock granted to date.
Explanatory Note: This Registration Statement also constitutes, pursuant to Rule
429 of the Rules and Regulations of the Securities Act and the Registrant's
undertaking in Item 9(1) of the Registration Statement on Form S-8 filed May 19,
1998 (amended July 9, 1998) (Registration No. 333-53031), a post-effective
amendment to the Registrant's Registration Statement on Form S-8 (Registration
No. 333-53031) relating to the registration of 4,888,888 shares under the
Officer Plan and Non-Officer Plan, to include and reflect the merger of these
plans and the resulting name change of the surviving plan to the "Advantica
Stock Option Plan".
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to persons participating in the Advantica Stock Option
Plan or the Advantica Restaurant Group Director Stock Option Plan (collectively
the "Plans") as applicable, as specified by Rule 428(b)(1) under the Securities
Act. These documents and the documents incorporated by reference into this
Registration Statement as applicable, taken together, constitute a prospectus
with respect to each of the respective Plans that meets the requirements of
Section 10(a) of the Securities Act. Capitalized terms used but not defined
herein shall have the same meanings ascribed to them in the Plans.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Advantica are incorporated herein by
reference:
(i) Advantica's Annual Report on Form 10-K for the year ended December 30,
1998;
(ii) Advantica's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1999, June 30, 1999 and September 29, 1999; and
(iii) The section entitled "Description of Registrant's Securities To Be
Registered" in the Registrant's Registration Statement on Form 8-A
filed with the Commission pursuant to the Securities Exchange Act of
1934 (the "Exchange Act").
All documents filed by Advantica pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents.
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Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
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.
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
attorneys' 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 of the Company to the extent permitted by
Delaware law and, in connection therewith,
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calls for the advancement of attorneys' 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:
* 4.1 Merger Amendment, dated March 15, 1999 to the Non-Officer Plan
and Officer Plan (incorporated by reference to Exhibit 10.4 to
the Registrant's Form 10-Q for the fiscal quarter ended March 31,
1999 (the "1999 First Quarter 10-Q").
* 4.2 Advantica Stock Option Plan, as amended through March 15, 1999
(incorporated by reference to Exhibit 10.5 to the 1999 First
Quarter 10-Q).
* 4.3 Advantica Restaurant Group Director Stock Option Plan, as adopted
January 28, 1998 and amended through September 28, 1998
(incorporated by reference to Exhibit 10.4 to the Registrant's
Form 10-Q for the fiscal quarter ended September 30, 1998).
5.1 Opinion letter of J. Scott Melton, Esq., regarding the legality
of the securities to be issued pursuant to the Advantica Stock
Option Plan.
5.2 Opinion letter of J. Scott Melton, Esq., regarding the legality
of the securities to be issued pursuant to the Advantica
Restaurant Group Director Stock Option Plan.
23.1 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney (contained on the signature page to this
Registration Statement).
* Certain of the exhibits to this Registration Statement, indicated
by as 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.
Item 9. Undertakings.
(a) The 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 purposes of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
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(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 Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
[Signatures appear on the following page.]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this 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
14th day of January, 2000.
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.
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Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ JAMES B. ADAMSON Director, Chairman, President and Chief January 14, 2000
- --------------------------------------- Executive Officer (Principal Executive Officer)
(James B. Adamson)
/s/ RONALD B. HUTCHISON Executive Vice President and Chief Financial January 14, 2000
- --------------------------------------- Officer (Principal Financial and Accounting Officer)
(Ronald B. Hutchison)
/s/ RONALD E. BLAYLOCK Director January 14, 2000
- ---------------------------------------
(Ronald E. Blaylock)
/s/ VERA KING FARRIS Director January 14, 2000
- ---------------------------------------
(Vera King Farris)
/s/ JAMES J. GAFFNEY Director January 14, 2000
- ---------------------------------------
(James J. Gaffney)
/s/ IRWIN N. GOLD Director January 14, 2000
- ---------------------------------------
(Irwin N. Gold)
/s/ ROBERT E. MARKS Director January 14, 2000
- ---------------------------------------
(Robert E. Marks)
/s/ CHARLES F. MORAN Director January 14, 2000
- ---------------------------------------
(Charles F. Moran)
/s/ ELIZABETH A. SANDERS Director January 14, 2000
- ----------------------------------------
(Elizabeth A. Sanders)
/s/ DONALD R. SHEPHERD Director January 14, 2000
- ----------------------------------------
(Donald R. Shepherd)
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February 1, 2000
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 February
2, 2000, with the Securities and Exchange Commission with respect to the
additional 2,500, 000 shares of Advantica $.01 par value common stock issuable
under the Advantica 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 nonaccessable.
I hereby consent to the use of this opinion as Exhibit 5.1 to the above
mentioned Registration Statement.
Sincerely,
J. Scott Melton
Assistant General Counsel
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February 1, 2000
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 February
2, 2000, with the Securities and Exchange Commission with respect to the 200,000
shares of Advantica $.01 par value common stock issuable under the Advantica
Restaurant Group Director 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 nonaccessable.
I hereby consent to the use of this opinion as Exhibit 5.2 to the above
mentioned Registration Statement.
Sincerely,
J. Scott Melton
Assistant General Counsel
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Advantica Restaurant Group, Inc. on Form S-8, such Registration Statement also
constitutes a post-effective amendment to Registration Statement No. 333-53031
on Form S-8 filed May 18, 1998 (amended July 9, 1998), of our report dated
February 16, 1999, appearing in the Annual Report on Form 10-K of Advantica
Restaurant Group, Inc. for the year ended December 30, 1998.
DELOITTE & TOUCHE LLP
Greenville, South Carolina
February 2, 2000
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