<PAGE> 1
As filed with the Securities and Exchange Commission on January 10, 1997
File No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------------
O'CHARLEY'S INC.
(Exact name of registrant as specified in its charter)
TENNESSEE
(State or other jurisdiction of 62-1192475
incorporation or organization) (I.R.S. employer identification number)
3038 SIDCO DRIVE, NASHVILLE, TENNESSEE 37204
(615) 256-8500
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
GREGORY L. BURNS
PRESIDENT, CHIEF EXECUTIVE OFFICER
AND CHAIRMAN OF THE BOARD
3038 SIDCO DRIVE, NASHVILLE, TENNESSEE 37204
(615) 256-8500
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copies of communications to:
J. PAGE DAVIDSON
BASS, BERRY & SIMS PLC
FIRST AMERICAN CENTER
NASHVILLE, TENNESSEE 37238
(615) 742-6200
--------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of this Registration Statement.
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
number for the same offering. [ ] ______________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
--------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==================================================================================================================================
Title of Each Class of Securities Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of
to be Registered Registered Price per Share (1) Offering Price (1) Registration Fee
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 172,248 $12.375 $2,131,569 $646
==================================================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c) on the basis of the average of the high and low sales
prices of the Company's Common Stock on January 8, 1997, as reported by The
Nasdaq Stock Market's National Market.
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 THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
================================================================================
172,248 SHARES
O'CHARLEY'S INC.
COMMON STOCK
----------
All of the 172,248 shares (the "Shares") of Common Stock, no par value per
share (the "Common Stock"), of O'Charley's Inc. (the "Company") offered hereby
are being offered by certain shareholders of the Company (the "Selling
Shareholders"). See "Selling Shareholders." The Company will not receive any
proceeds from the sale of the Common Stock offered hereby.
The Shares may be sold from time to time in brokerage transactions at
prevailing market prices through J.C. Bradford & Co. or others, in privately
negotiated transactions for the account of each of the Selling Shareholders at
prices at or near the market price, or in other privately negotiated
transactions. See "Plan of Distribution."
The Company has agreed to bear all expenses (other than selling
commissions relating to the Shares) in connection with the registration and
sale of the Shares being registered hereby. The Company has agreed to
indemnify the Selling Shareholders against certain liabilities and the Selling
Shareholders have agreed to indemnify the Company against certain liabilities
in connection with this offering, including liabilities under the Securities
Act of 1933, as amended (the "Securities Act"). See "Plan of Distribution."
The Common Stock is traded on The Nasdaq Stock Market's National Market
(the "Nasdaq National Market") under the symbol "CHUX." The last reported sale
price per share of the Common Stock on the Nasdaq National Market on January 9,
1997 was $12.25.
---------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
No person has been authorized to give any information or to make any
representations in connection with this offering other than those contained or
incorporated by reference in this Prospectus and, if given or made, such
information or representations must not be relied upon as having been
authorized by the Company. Neither the delivery of this Prospectus nor any
sale made hereunder shall, under any circumstances, create any implication that
there has been no change in the affairs of the Company since the date hereof or
that the information contained herein is correct as of any time subsequent to
its date. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any securities other than the Common Stock to
which it relates. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any securities offered hereby in any
jurisdiction in which it is not lawful or to any person to whom it is not
lawful to make any such offer or solicitation.
The date of this Prospectus is January ___, 1997.
<PAGE> 2
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 under the Securities Act
with respect to the Shares of Common Stock offered hereby. This Prospectus
does not contain all of the information set forth in the Registration Statement
and the exhibits thereto. Certain items are omitted in accordance with the
rules and regulations of the Commission. Statements contained in this
Prospectus concerning the provisions or contents of any contract or other
document referred to herein are not necessarily complete. With respect to each
such contract, agreement or document, reference is made to such document for a
more complete description, and each such statement is deemed to be qualified in
all respects by such reference.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files proxy statements, reports, and other information with the
Commission. The Registration Statement (with exhibits), as well as such proxy
statements, reports and other information, may be inspected and copied at
prescribed rates at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's regional offices located at Seven World
Trade Center, 13th Floor, New York, New York 10048, and Northwestern Atrium
Center, 500 W. Madison Street, Suite 1400, Chicago, Illinois 60661. The
Commission maintains a web site that contains reports, proxy and information
statements and other information regarding registrants, including the Company,
that file such information electronically with the Commission at
http://www.sec.gov.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents or portions of documents filed with the Commission
by the Company (File No. 0-18629) are incorporated by reference into this
Prospectus:
(i) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995;
(ii) The Company's Quarterly Reports on Form 10-Q for the fiscal
periods ending April 21, 1996, July 14, 1996, and October 6, 1996;
(iii) The Company's Current Report on Form 8-K, dated January 5,
1996, as amended on Form 8-K/A, dated March 19, 1996; and
(iv) The description of the Common Stock contained in the
Company's Registration Statement on Form 8-A, including all amendments and
reports filed for the purpose of updating such description prior to the
termination of the offering.
All reports and other documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and prior to the termination of the offering shall be deemed to be incorporated
by reference in this Prospectus and to be a part hereof from the date of filing
of such documents. 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 Prospectus to the extent that a statement
contained herein, or in any other subsequently filed document which also is
incorporated or is deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
2
<PAGE> 3
Prospectus. Subject to the foregoing, all information appearing in this
Prospectus is qualified in its entirety by the information appearing in the
documents incorporated herein by reference.
The Company undertakes to provide, without charge, to each person,
including any beneficial owner, to whom this Prospectus is delivered, upon
written or oral request of such person, a copy of any document incorporated by
reference herein (not including exhibits to such documents unless such exhibits
are specifically incorporated by reference into the information incorporated
into this Prospectus). Requests for such documents should be directed to A.
Chad Fitzhugh, Secretary, O'Charley's Inc., 3038 Sidco Drive, Nashville,
Tennessee 37204, (615) 256-8500.
THE COMPANY
The Company operates and franchises casual dining, full service
restaurants under the O'Charley's name. The Company's strategy is to compete
in both the casual adult and family dining market segments by featuring:
* a broad menu selection, including prime rib, steaks, poultry, fresh
seafood, salads, sandwiches and pasta, that is intended to appeal to
a wide range of consumer tastes;
* an emphasis on customer service that results from a comprehensive
training program and close supervision of restaurant operations;
* moderate, value-oriented menu pricing that is designed to attract
customers of various income levels; and
* high food quality that is consistently maintained through the
operation of a centralized commissary that purchases, processes and
distributes most food products used in the restaurants.
At December 31, 1996, the Company operated 69 O'Charley's restaurants in
Alabama, Florida, Georgia, Indiana, Kentucky, Mississippi, North Carolina,
Ohio, South Carolina and Tennessee and had 1 franchised O'Charley's restaurant
in South Carolina. The Company plans to expand in the near term primarily
through the development of additional Company-owned restaurants, clustered in
or near its existing markets and in selected metropolitan areas in the South
and Midwest. Twelve to fourteen additional O'Charley's restaurants are expected
to open during 1997.
The Company's principal executive offices are located at 3038 Sidco Drive,
Nashville, Tennessee 37204. The Company's telephone number at that address is
(615) 256-8500.
3
<PAGE> 4
SELLING SHAREHOLDERS
The following table sets forth information provided to the Company by the
Selling Shareholders with respect to the beneficial ownership of Common Stock
by the Selling Shareholders as of January 9, 1997, and as adjusted to reflect
the sale of the Shares offered hereby (assuming that all of the Shares offered
hereby will be sold). Under the rules of the Commission, a person is deemed to
be a "beneficial owner" of a security if he has or shares the power to vote or
direct the voting of such security, has or shares the power to dispose of or
direct the disposition of such security, or has the right to acquire the
security within 60 days.
<TABLE>
<CAPTION>
Shares Beneficially Shares Shares Beneficially
Owned to be sold in Owned
Prior to the Offering the Offering After the Offering
------------------------ ------------- -----------------------
Number Percent (2) Number Percent (2)
----------- ----------- ---------- -----------
<S> <C> <C> <C> <C> <C>
R. Wayne Browning 94,599(1) 1.2 89,999 4,600 *
Mike H. Martin 83,249 1.1 62,249 21,000 *
George V. Davis 10,000 * 10,000 -- --
Bartley B. Davis 10,000 * 10,000 -- --
</TABLE>
- ---------------------
* Less than one percent.
(1) Includes 4,600 shares subject to options exercisable within 60 days of the
date hereof.
(2) Based on a total of 7,845,368 shares issued and outstanding on November
18, 1996.
Messrs. Browning and Martin are former shareholders of Shoex, Inc., a
Tennessee corporation and former franchisee of the Company ("Shoex"). The
Company obtained all of the outstanding shares of Shoex capital stock in
January 1996 in connection with the merger of Shoex with and into the Company.
The transaction was accounted for as a pooling of interests. In connection
with the issuance of such Shares, Messrs. Browning and Martin received the
right to request the Company to register the Shares offered by them hereby.
See "Plan of Distribution." R. Wayne Browning, one of the Selling Shareholders,
is an employee of the Company.
4
<PAGE> 5
PLAN OF DISTRIBUTION
The Shares may be sold from time to time in brokerage transactions at
prevailing market prices through J.C. Bradford & Co. or others, in privately
negotiated transactions for the account of each of the Selling Shareholders at
prices at or near the market price, or in other privately negotiated
transactions. Ordinary brokerage commissions will be paid in connection with
brokerage transactions.
In connection with the merger of Shoex with and into the Company, Messrs.
Browning and Martin received the right to request the registration of the
Shares offered by them hereby pursuant to a Registration Rights Agreement,
dated January 5, 1996 (the "Registration Rights Agreement"). The Company has
agreed to pay the expenses of this offering, but the Selling Shareholders will
be responsible for all brokerage commissions and any other selling commissions
and stock transfer taxes, if any. Expenses to be paid by the Company are
estimated to be $6,000. The Company has agreed to maintain the effectiveness
of the Registration Statement covering the Shares for a period of 60 days
following the date hereof.
The Company has agreed to indemnify the Selling Shareholders, and the
Selling Shareholders have agreed to indemnify the Company, against certain
liabilities in connection with this offering, including liabilities under the
Securities Act.
The Selling Shareholders and any brokers or other persons who participate
in the sale of the Shares may be deemed to be "underwriters" within the meaning
of Section 2(11) of the Securities Act, and any commissions received by such
brokers or other persons, and any profits on the resale of the Shares, may be
deemed to be underwriting commissions or discounts.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Bass, Berry & Sims PLC, Nashville, Tennessee.
EXPERTS
The financial statements of O'Charley's Inc. as of December 31, 1995 and
December 25, 1994, and for each of the years in the three-year period ended
December 31, 1995, have been incorporated by reference herein by reference to
the Company's Annual Report on Form 10-K in reliance upon the report of KPMG
Peat Marwick LLP, independent certified public accountants, incorporated by
reference herein, and upon authority of said firm as experts in accounting and
auditing.
The financial statements of Shoex, Inc. as of December 31, 1995 and
December 25, 1994, and for each of the years in the three-year period ended
December 31, 1995, have been incorporated by reference herein by reference to
the Company's Current Report on Form 8-K/A, dated March 19, 1996, in reliance
upon the report of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
5
<PAGE> 6
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee . . . . . . . . . . . . . . $ 646
Legal fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . $3,000
Accounting fees and expenses. . . . . . . . . . . . . . . . . . . . . . . . . . $1,500
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 854
------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $6,000
======
</TABLE>
All of the above expenses except the Securities and Exchange Commission
registration fee are estimated. All of the above expenses will be paid by the
Company.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Tennessee Business Corporation Act ("TBCA") provides that a
corporation may indemnify any of its directors and officers against liability
incurred in connection with a proceeding if (i) the director or officer acted
in good faith, (ii) in the case of conduct in his or her official capacity with
the corporation, the director or officer reasonably believed such conduct was
in the corporation's best interest, (iii) in all other cases, the director or
officer reasonably believed that his or her conduct was not opposed to the best
interest of the corporation, and (iv) in connection with any criminal
proceeding, the director or officer had no reasonable cause to believe that his
or her conduct was unlawful. In actions brought by or in the right of the
corporation, however, the TBCA provides that no indemnification may be made if
the director or officer is adjudged to be liable to the corporation. In cases
where the director or officer is wholly successful, on the merits or otherwise,
in the defense of any proceeding instigated because of his or her status as a
director or officer of a corporation, the TBCA mandates that the corporation
indemnify the director or officer against reasonable expenses incurred in the
proceeding. The TBCA also provides that in connection with any proceeding
charging improper personal benefit to a director or officer, no indemnification
may be made if such director or officer is adjudged liable on the basis that
personal benefit was improperly received. Notwithstanding the foregoing, the
TBCA provides that a court of competent jurisdiction, upon application, may
order that a director or officer be indemnified for reasonable expenses if, in
consideration of all relevant circumstances, the court determines that such
individual is fairly and reasonably entitled to indemnification, whether or not
the standard of conduct set forth above was met.
Article VIII of the Company's Restated Charter provides that, to the
fullest extent permitted by the TBCA, as amended from time to time, directors
shall not be liable to the Company or its shareholders for monetary damages for
breach of fiduciary duty as a director, and that to the extent permitted by the
TBCA, the liability of a director to the Company or its shareholders shall be
further limited or eliminated. The Company's Amended and Restated By-laws
provide that the Company shall indemnify from liability, and advance expenses
to, each present or former director or officer of the Company to the fullest
extent allowed under Tennessee law, as now or hereafter in effect.
II-1
<PAGE> 7
The Company has agreed to indemnify the Selling Shareholders, and the
Selling Shareholders have agreed to indemnify the Company, for certain
liabilities, including liabilities under the Securities Act pursuant to the
Registration Rights Agreement.
Directors' and officers' liability insurance has also been obtained by the
Company, the effect of which is to indemnify the directors and officers of the
Company against certain damages and expenses because of certain claims made
against them caused by their negligent act, error or omission.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C> <C>
4.1 -- Restated Charter of the Company (incorporated by reference to
Exhibit 3.1 of the Company's Registration Statement on Form S-1,
Registration No. 33-35170).
4.2 -- Amended and Restated By-laws of the Company (incorporated by
reference to Exhibit 3.2 of the Company's Annual Report on Form
10-K for the year ended December 30, 1990).
4.3 -- Form of Certificate for the Common Stock (incorporated by
reference to Exhibit 4.1 of the Company's Registration Statement
on Form S-1, Registration No. 33-35170).
5 -- Opinion of Bass, Berry & Sims PLC.
23.1 -- Consent of KPMG Peat Marwick LLP.
23.2 -- Consent of Bass, Berry & Sims PLC (contained in Exhibit 5).
24 -- Power of Attorney (included on page II-4).
</TABLE>
ITEM 17. 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:
(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 this 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 this
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;
II-2
<PAGE> 8
provided, however, that the undertakings in paragraphs (i) and (ii) above do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934, as amended (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; and
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered hereby which remain unsold at the termination
of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act 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.
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 provisions described in Item 15 above, or otherwise,
the Registrant has been advised that in the opinion of the 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.
II-3
<PAGE> 9
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 Nashville, State of Tennessee, on this 9th day of
January, 1997.
O'CHARLEY'S INC.
By: /s/ Gregory L. Burns
-----------------------------
Gregory L. Burns, President,
Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Gregory
L. Burns and A. Chad Fitzhugh, and each of them, his or her true and lawful
attorney-in-fact and agent, 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 and all amendments (including post-effective
amendments) to this Registration Statement, and any registration statement
relating to the same offering as this Registration Statement that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933,
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing, ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitutes or substitute, 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.
<TABLE>
<CAPTION>
Signature Capacity Date
- ----------------------- -------------------------------------- ---------------
<S> <C> <C>
/s/ Gregory L. Burns President, Chief Executive Officer,
- ----------------------- and Chairman of the Board January 9, 1997
Gregory L. Burns
/s/ A. Chad Fitzhugh Chief Financial Officer,
- ----------------------- Secretary and Treasurer January 9, 1997
A. Chad Fitzhugh
/s/ John W. Stokes, Jr. Director January 9, 1997
- -----------------------
John W. Stokes, Jr.
/s/ Richard Reiss, Jr, Director January 9, 1997
- -----------------------
Richard Reiss, Jr.
/s/ G. Nicholas Spiva Director January 9, 1997
- -----------------------
G. Nicholas Spiva
/s/ H. Steve Tidwell Director January 9, 1997
- -----------------------
H. Steve Tidwell
</TABLE>
II-4
<PAGE> 10
<TABLE>
<CAPTION>
Signature Capacity Date
- ----------------------- -------------------------------------- ---------------
<S> <C> <C>
/s/ C. Warren Neel Director January 9, 1997
- -----------------------
C. Warren Neel
/s/ Samuel H. Howard Director January 9, 1997
- -----------------------
Samuel H. Howard
/s/ Shirley A. Zeitlin Director January 9, 1997
- -----------------------
Shirley A. Zeitlin
</TABLE>
II-5
<PAGE> 11
<TABLE>
<CAPTION>
INDEX TO EXHIBITS
Exhibit
No. Description
- --------------------------------------------------------------------------------
<S> <C>
4.1 Restated Charter of the Company (incorporated by reference to
Exhibit 3.1 of the Company's Registration Statement on Form S-1,
Registration No. 33-35170).
4.2 Amended and Restated By-laws of the Company (incorporated by
reference to Exhibit 3.2 of the Company's Annual Report on Form
10-K for the year ended December 30, 1990).
4.3 Form of Certificate for the Common Stock (incorporated by
reference to Exhibit 4.1 of the Company's Registration Statement
on Form S-1, Registration No. 33-35170).
5 Opinion of Bass, Berry & Sims PLC.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Bass, Berry & Sims PLC (contained in Exhibit 5).
24 Power of Attorney (included on page II-4).
</TABLE>
II-6
<PAGE> 1
Exhibit 5
[Bass, Berry & Sims PLC LETTERHEAD]
January 10, 1997
O'Charley's Inc.
3038 Sidco Drive
Nashville, Tennessee 37204
Re: REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have acted as your counsel in connection with your preparation of a
Registration Statement on Form S-3 (the "Registration Statement") to be filed
by you with the Securities and Exchange Commission on January 10, 1997,
covering 172,248 shares of no par value common stock (the "Common Stock") of
O'Charley's Inc. (the "Company") to be sold by Mike Martin, R. Wayne Browning,
George V. Davis and Bartley B. Davis (the "Selling Shareholders") on the terms
set forth in the Registration Statement.
In connection with this opinion, we have examined and relied upon such
records, documents, certificates, and other instruments as in our judgment are
necessary or appropriate in order to express the opinions hereinafter set forth
and have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, and the conformity to original
documents of all documents submitted to us as certified or photostatic copies.
Based on the foregoing and such other matters as we have deemed
relevant, we are of the opinion that the shares of Common Stock to be sold by
the Selling Shareholders are validly issued, fully paid, and nonassessable.
We hereby consent to the reference to our law firm in the Registration
Statement under the caption "Legal Matters" and to the use of this opinion as
an exhibit to the Registration Statement.
Very truly yours,
/s/ Bass, Berry & Sims PLC
<PAGE> 1
Exhibit 23.1
INDEPENDENT ACCOUNTANTS' CONSENT
The Board of Directors
O'Charley's Inc.:
We consent to the use of our reports incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the prospectus.
KPMG PEAT MARWICK LLP
Nashville, Tennessee
January 10, 1997
