As filed with the Securities and Exchange Commission
on September 10, 1996
Registration No. 333-_______________
______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________
SHONEY'S, INC.
(Exact name of registrant as specified in its charter)
TENNESSEE 62-0799798
(State or other jurisdiction (IRS employer
of incorporation identification no.)
1727 Elm Hill Pike
Nashville, Tennessee 37210
(Address of Principal Executive Offices)(Zip Code)
SHONEY'S, INC. 1981 STOCK OPTION PLAN
(Full title of the plan)
Copy to:
W. Craig Barber Cynthia W. Young, Esq.
Shoney's, Inc. Wyatt, Tarrant & Combs
1727 Elm Hill Pike 2800 Citizens Plaza
Nashville, Tennessee 37210 500 West Jefferson Street
(615) 231-2385 Louisville, Kentucky 40202
(502) 562-7292
(Name, address and telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed maximum Proposed maximum Amount of
securities to be offering price aggregate offering registration
to be registered registered per share<F1> price<F1> fee
<S> <C> <C> <C> <C>
Common Stock, $1.00 par 5,000,000<F2> $9.625 $48,125,000 $16,594.83
value per share and shares
associated rights
</TABLE>
<F1> Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(h), on the basis of the average of the high and low
prices of the Registrant's Common Stock as listed on the New York Stock
Exchange one business day prior to the filing hereof with respect to
the shares being registered.
<F2> The Registrant also registers hereby such indeterminate number of
additional shares of the Registrant's Common Stock as may be required to
cover antidilutive adjustments under the Shoney's, Inc. 1981 Stock
Option Plan.
25 sequentially numbered pages.
Exhibit index on page 9.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Shoney's, Inc., a Tennessee corporation, ("the Registrant") hereby
incorporates the following documents in this Registration Statement:
A. The Registrant's Annual Report on Form 10-K for the fiscal year
ended October 29, 1995, filed with the Commission on January 29, 1996, and the
amendment thereto on Form 10-K/A, as filed with the Commission on February 23,
1996;
B. The Registrant's Current Report on Form 8-K filed with the
Commission on March 20, 1996;
C. The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended February 18, 1996, filed with the Commission on April 13, 1996;
D. The Registrant's Current Report on Form 8-K filed with the
Commission on May 15, 1996;
E. The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended May 12, 1996, as filed with the Commission on June 25, 1996;
F. The description of the Registrant's common stock, par value $1.00
per share, that is contained in the Registrant's registration statement on Form
10 filed under the Exchange Act with the Commission on February 27, 1970,
including any amendment or report filed for the purpose of updating such
description; and
G. The description of the Registrant's Rights to Purchase Common Stock
that is contained in the Registrant's registration statement on Form 8-A filed
under the Exchange Act with the Commission, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
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 part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS OF COUNSEL.
Not applicable.
<PAGE> 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Tennessee Business Corporation Act (the "TBCA") and the Registrant's
bylaws each contains certain provisions that allow indemnification of officers
and directors against certain liabilities, including those arising under the
Securities Act. Any provision contained in the bylaws, in order to be valid,
must be consistent with the TBCA. Nevertheless, a corporation is empowered to
purchase and maintain insurance on behalf of any officer or director against
any liability asserted against him, whether or not the corporation would have
had the power to indemnify such officer or director for such liability.
Sections 48-18-501 to -509 of the TBCA provide that a Tennessee
corporation shall have the power to indemnify against liability incurred by any
individual made a party to a proceeding because the individual is or was a
director, provided that (i) such person conducted himself or herself in good
faith, (ii) such person reasonably believed (A) that in the case of conduct in
such person's official capacity with the corporation that such person's conduct
was in the corporation's best interest, and (B) in all other cases, that his or
her conduct was not opposed to the corporation's best interest, and (iii) in
the case of a criminal proceeding, such person had no reasonable cause to
believe his or her conduct was unlawful. A director may not be indemnified as
described above for obligations resulting from a proceeding (i) in which such
person is found liable on the basis that he or she improperly received personal
benefit, whether or not the benefit resulted from an action taken in such
person's official capacity, or (ii) in which such person is found liable to the
corporation.
A corporation may provide indemnification as described above only if a
determination of indemnification is made (a) by a majority vote of a quorum of
directors who at the time of voting are not parties to such proceeding; (b) if
such a quorum cannot be obtained, by majority vote of a committee of directors,
consisting solely of two or more directors who are not at the time parties to
the relevant proceeding, designated to act in the matter by a majority of all
directors; (c) by independent special legal counsel selected by the board
acting as described in (a), or a committee established as described in (b), or,
if such quorum cannot be obtained and such committee is not established, by a
majority vote of all directors (in which selection directors who are parties
may participate); or (d) by the shareholders of the corporation in a vote
excluding shares owned by or voted under the control of directors who are at
the time parties to the proceeding. On receipt of an application for
indemnification, a court may order indemnification although certain of the
above conditions are not met if such court determines the director is fairly
and reasonably entitled to indemnification in view of all the relevant
circumstances, but if the director was adjudged liable as described in Section
48-18-502(d), his or her indemnification is limited to reasonable expenses
incurred.
Unless a corporation's charter provides otherwise (i) an officer of the
corporation who is not a director is entitled to mandatory indemnification
under Section 48-18-503, and is entitled to apply for court-ordered
indemnification under Section 48-18-505, in each case to the same extent as a
director; (ii) the corporation may indemnify and advance expenses under this
part to an officer, employee or agent of the corporation who is not a director
to the same extent as a director; and (iii) the corporation may also indemnify
and advance expenses to an officer, employee or agent who is not a director to
the extent, consistent with public policy, that may be provided by its charter,
bylaws, general or specific action of its board of directors, or contract.
Unless limited by its charter, a corporation must indemnify a director
who was wholly successful, on the merits or otherwise, in the defense of any
proceeding to which he or she was a party because he or she is or was a
director of the corporation against reasonable expenses incurred by such person
in connection with the proceeding.
The Registrant carries directors and officers liability insurance
policies. Section 48-18-508 of the TBCA permits the purchase and maintenance
of insurance on behalf of directors and officers against any
<PAGE> 4
liability asserted against them and incurred by them in that capacity or
arising from their status as directors or officers, whether or not the
corporation itself would have the power to indemnify any such director or
officer against the same liability under Sections 48-18-502 or 48-18-503.
Section 12 of the charter of the Registrant eliminates or limits the
liability for monetary damages of the Registrant's directors for an act or
omission in the director's capacity as a director except for liability (i) for
any breach of the director's duty of loyalty to the Registrant or its
shareholders, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, or (iii) under Section
48-18-304 for certain unlawful distributions. The effect of this provision is
to eliminate the rights of the Registrant and its shareholders (through
shareholders' derivative suits on behalf of the Registrant) to recover monetary
damages against a director for acts or omissions in his or her capacity as a
director (including breaches of fiduciary duty resulting from negligent or
grossly negligent business decisions) except in the situations described in (i)
through (iii) of the preceding sentence. Any subsequent changes to the TBCA
authorizing adoption of this provision will be automatically incorporated into
this provision.
Article IX of the Registrant's bylaws provides that every director,
officer or employee of the Registrant shall be indemnified against all expenses
and liabilities, including attorneys' fees, reasonably incurred by or imposed
upon him or her in connection with any proceeding in which such person may be
made a party, or in which such person may become involved by reason of his or
her being or having been a director, officer or employee of the Registrant, or
any settlement thereof. Indemnification is allowed only in situations in which
the director, officer or employee acted in good faith for a purpose which he or
she reasonably believed to be in the best interests of the Registrant, and, in
a criminal proceeding, had no reasonable cause to believe that his or her
conduct was unlawful. In the event of a settlement, indemnification is
provided only when the Board approves such settlement and reimbursement as
being in the best interest of the Registrant. The right of indemnification
contained in the Registrant's bylaws is in addition to and not exclusive of any
other rights of indemnification to which such directors, officers or employees
may be entitled.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that, in the opinion of the Commission, such indemnification is
against public policy as expressed in the Securities Act of 1933 and is
therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits listed on the Exhibit Index attached at page 9 of this
Registration Statement are incorporated by reference herein.
<PAGE> 5
ITEM 9. UNDERTAKINGS.
1. The Registrant hereby undertakes:
A. To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
[1] To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
[2] 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; and
[3] To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs 1.A[1] and 1.A[2] 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 the Registration Statement.
B. 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.
C. 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.
2. The Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant, 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 of 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> 6
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 Nashville, State of Tennessee, on September 10, 1996.
SHONEY'S, INC.
By: /S/ C. STEPHEN LYNN
C. Stephen Lynn
Title: Chairman of the Board, President
and Chief Executive Officer
<PAGE> 7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below
hereby severally constitutes and appoints C. Stephen Lynn and W. Craig Barber
and each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities to sign any and all amendments (including
post-effective amendments) to this Registration Statement and all documents
relating thereto and to file the same with all exhibits thereto and other
documents in connection therewith with the Securities and Exchange Commission
and each state securities regulatory authority, granting unto said attorneys-
in-fact and agents full power and authority to do and perform each and every
act and thing necessary or advisable to be done in and about the premises as
fully to all intents and purposes as he might or could do in person hereby
ratifying and confirming all that said attorneys-in-fact and agents or his
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 below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
<S> <C> <C>
/S/ C. STEPHEN LYNN Chairman of the Board, President, September 9, 1996
C. Stephen Lynn Chief Executive Officer and Director
/S/ W. CRAIG BARBER Senior Executive Vice PresidentSeptember 9, 1996
W. Craig Barber and Chief Financial Officer
/S/ ROBERT M. LANGFORD Executive Vice President, September 9, 1996
Robert M. Langford General Counsel and Secretary
/S/ F.E. MCDANIEL, JR. Vice President and Treasurer September 9, 1996
F.E. McDaniel, Jr.
/S/ GREGORY A. HAYES Vice President and Controller September 9, 1996
Gregory A. Hayes
/S/ DENNIS C. BOTTORFF Director September 9, 1996
Dennis C. Bottorff
/S/ CAROLE F. HOOVER Director September 9, 1996
Carole F. Hoover
/S/ VICTORIA B. JACKSON Director September 9, 1996
Victoria B. Jackson
<PAGE> 8
/S/ JEFFRY F. SCHOENBAUM Director September 9, 1996
Jeffry F. Schoenbaum
/S/ B. FRANKLIN SKINNER Director September 9, 1996
B. Franklin Skinner
/S/ CAL TURNER, JR. Director September 9, 1996
Cal Turner, Jr.
</TABLE>
<PAGE> 9
SHONEY'S, INC.
FORM S-8
REGISTRATION STATEMENT
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT Sequentially
Numbered
PAGE
<S> <C> <C>
4.1 Restated charter of Shoney's, Inc., as amended. 10
4.2 Amended and Restated Bylaws of Shoney's Inc. filed as
Exhibits 3(ii) and 4.2 to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended February 18,
1996 and incorporated herein by this reference.
4.3 Amended and Restated Rights Agreement, dated as of May
25, 1994, between Shoney's, Inc. and Harris Trust and
Savings Bank, as Rights Agent, filed as Exhibit 4 to
the Registrant's Current Report on Form 8-K filed with
the Commission on June 9, 1994 and incorporated herein
by this reference.
4.4 Amendment No. 1 dated as of April 18, 1995 to Amended
and Restated Rights Agreement, dated as of May 25,
1994, between Shoney's Inc. and Harris Trust and
Savings Bank, as Rights Agent, filed as Exhibit 4 to
the Registrant's Current Report on Form 8-K filed with
the Commission on May 4, 1995, and incorporated herein
by this reference.
4.5 Amendment No. 2 dated as of June 14, 1996 to Amended
and Restated Rights Agreement, dated as of May 25,
1994, between Shoney's, Inc. and Harris Trust and
Savings Bank, as Rights Agent, filed as Exhibit 4.5 to
the Registrant's Quarterly Report on Form 10-Q for the
quarter ended May 12, 1996, filed with the Commission
on June 25, 1996, and incorporated herein by this
reference.
5 Opinion of Wyatt, Tarrant & Combs 23
23.1 Consent of Ernst & Young LLP 25
23.2 Consent of Wyatt, Tarrant & Combs (included in Exhibit 23
5)
24 Power of Attorney (included in signature page to this 7
registration statement).
</TABLE>
<PAGE> 10
EXHIBIT 4.1
RESTATED CHARTER
OF
SHONEY'S, INC.
Under Section 48-20-107 of the Tennessee Business Corporation Act
Pursuant to the provisions of Section 48-20-107 of the Tennessee
Business Corporation Act, the undersigned corporation adopts the following
Restated Charter:
1. NAME. The name of this corporation is SHONEY'S, INC.
2. DURATION. The time of existence of this corporation shall be
perpetual.
3. ADDRESS OF REGISTERED OFFICE, NAME OF REGISTERED AGENT AND
ADDRESS OF PRINCIPAL OFFICE. The address of the registered office of the
corporation is 1727 Elm Hill Pike, Nashville, Tennessee 37210, County of
Davidson, and the name of the corporation's registered agent at that office
is Jess S. Shearin. The address of the principal office of this
corporation in the state of Tennessee is 1727 Elm Hill Pike, Nashville,
Tennessee 37210, County of Davidson.
4. PROFIT. The corporation is for profit.
5. BUSINESS. The purpose or purposes for which the corporation is
organized are:
The general nature of the business to be transacted by this
corporation is to own, conduct, operate, manage, maintain and
carry on, or license a general restaurant and/or cafeteria or any
other type of food dispensing business at such place or places as
may be determined by the Board of Directors of this corporation;
to buy, sell, lease or otherwise dispose of, and to operate,
conduct, furnish, equip stores, markets, restaurants, cafes,
cafeterias or other places of eating or food sales or
<PAGE) 11
food service; to buy, or otherwise acquire, manufacture, market,
prepare for market, sell, deal in and deal with, import and export,
food and food products of every kind and description, fresh, canned,
preserved or otherwise, and other preparations and refreshments of all
kinds; to own and/or operate hotels, motels, or other types of lodging
accommodations; to buy, sell, lease, encumber, real property; to do
each and everything necessary, suitable and proper for the
accomplishment of any of the purposes or the attainment of any one or
more of the objects herein enumerated, or which shall at any time
appear conducive to or expedient for the protection or benefit of this
corporation.
6. STOCK. The maximum number of shares that the corporation shall
have the authority to issue is one hundred million (100,000,000) shares
of common stock with a par value of One Dollar ($1.00) each, which shall
have the right to receive the net assets of the corporation upon
dissolution.
7. INITIAL CAPITAL. The amount of capital with which this
corporation will begin business shall be not less than Five Hundred
Thousand Dollars ($500,000.00); and when such amount so fixed shall have
been subscribed for, all subscriptions of the stock of this corporation
shall be enforceable and it may proceed to do business in the same manner
and as fully as though the maximum number of shares authorized under the
provisions of the preceding section hereof shall have been subscribed for.
8. NO PREEMPTIVE RIGHTS. No holder of shares of any class of stock
of the corporation shall have any preemptive right to purchase or otherwise
acquire any shares of stock of any class of the corporation, or any options
or rights to purchase shares of any class or any other securities of the
corporation convertible into or carrying an option to purchase shares of
any class, whether now
<PAGE> 12
or hereafter authorized; and the Board of Directors of the corporation
may authorize the issuance of shares of stock of any class of the
corporation, or options or rights to purchase shares of any class, or
any securities convertible into or carrying an option to purchase shares
of any class without offering such issue of shares, rights, options or other
securities, either in whole or in part, to any shareholders of the corporation.
9. ACTION BY CONSENT. Whenever the Directors of the corporation are
required or permitted to take any action by vote, such action may be taken
without a meeting on written consent, setting forth the action so taken,
signed by all of the Directors entitled to vote thereon.
10. BY-LAWS. The Board of Directors of the corporation may adopt,
amend, or repeal the by-laws or any by-law of the corporation by the vote
of a majority of the members of the entire Board.11.BUSINESS COMBINATIONS.
(a) DEFINITIONS. For purposes of this paragraph 11:
(1) AFFILIATE. An "affiliate" of, or a person "affiliated"
with, a specified person, is a person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under
common control with, the person specified.
(2) ASSOCIATE. The term "associate" used to indicate a
relationship with any person, means: (i) any corporation or organization
(other than this corporation or a Subsidiary thereof) of which such person
is an officer or partner or is, directly or
<PAGE> 13
indirectly, the beneficial owner of 10 percent or more of any class
of equity securities; (ii) any trust or other estate in which such person
has a substantial beneficial interest or as to which such person serves as
trustee or in a similar fiduciary capacity; and (iii) any relative or
spouse of such person, or any relative of such spouse, who has the same
home as such person.
(3) BENEFICIAL OWNER. A person shall be a "beneficial owner" of
any Capital Stock: (i) which such person or any of its Affiliates or
Associates beneficially owns directly or indirectly; or (ii) which such
person or any of its Affiliates or Associates has, directly or indirectly:
(A) the right to acquire (whether such right is exercisable immediately or
subject only to the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise; or (B) the right to
vote pursuant to any agreement, arrangement or understanding; or (C) which
are beneficially owned, directly or indirectly, by any other person with
which such person or any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting
or disposing of any shares of Capital Stock. For the purposes of
determining whether a person is an Interested Stockholder, the number of
shares of Capital Stock deemed to be outstanding shall include shares
deemed beneficially owned by such person through application of this
paragraph 11(a)(3) but shall not include any other shares of Capital Stock
that may be issuable pursuant to any agreement, arrangement or
understanding,
<PAGE> 14
or upon exercise of conversion rights, warrants or options, or otherwise.
(4) "BUSINESS COMBINATION" shall mean: (i) any merger or
consolidation of this Corporation or any Subsidiary (as hereinafter
defined) with (A) any Interested Stockholder or, (B) any other corporation
(whether or not itself an Interested Stockholder) which is, or after such
merger or consolidation would be, an Affiliate or Associate of an
Interested Stockholder; or (ii) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition (in one transaction or a series of
transactions) with any Interested Stockholder, or any Affiliate or
Associate of any Interested Stockholder, involving any assets or securities
of this corporation, any Subsidiary or any Interested Stockholder, or any
Affiliate or Associate of any Interested Stockholder, having an aggregate
Fair Market Value of $25,000,000 or more; or (iii) the adoption of any plan
or proposal for the liquidation or dissolution of this corporation proposed
by or on behalf of an Interested Stockholder or any Affiliate or Associate
of any Interested Stockholder; or (iv) any reclassification of securities
(including any reverse stock split), or recapitalization of this
corporation, or any merger or consolidation of this corporation with any of
its Subsidiaries or any other transaction (whether or not with or otherwise
involving an Interested Stockholder) that has the effect, directly or
indirectly, of increasing the proportionate share of any class or series of
Capital Stock, or any securities convertible into Capital Stock or into
equity securities of any Subsidiary,
<PAGE> 15
that is beneficially owned by any Interested Stockholder or any Affiliate
or Associate of any Interested Stockholder; or (v) any agreement, contract
or other arrangement providing for any one or more of the actions specified
in the foregoing clauses (i) to (iv).
(5) CAPITAL STOCK. The term "Capital Stock" shall mean all
capital stock of this corporation as may be authorized to be issued from
time to time under paragraph 6 of this charter.
(6) "CONTINUING DIRECTOR" shall mean any member of the Board of
Directors of this corporation (the "Board"), while such person is a member
of the Board, who is not an Affiliate or Associate or representative of the
Interested Stockholder and was a member of the Board prior to the time that
the Interested Stockholder became an Interested Stockholder and any
successor of a Continuing Director, while such successor is a member of the
Board, who is not an Affiliate or Associate or representative of the
Interested Stockholder and is recommended or elected to succeed the
Continuing Director by a majority of Continuing Directors.
(7) "FAIR MARKET VALUE" shall mean: (i) in the case of cash, the
amount of such cash; (ii) in the case of stock, the highest closing sale
price during the 30-day period immediately preceding the date in question
of a share of such stock on the Composite Tape for New York Stock Exchange-
Listed Stocks, or, if such stock is not quoted on the Composite Tape, on
the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered
under the Act on which such stock is listed, or, if such stock is not
<PAGE> 16
listed on any such exchange, the highest closing bid quotation with respect
to a share of such stock during the 30-day period preceding the date in
question on the National Association of Securities Dealers, Inc. Automated
Quotations System or any similar system then in use, or if no such
quotations are available, the fair market value on the date in question of
a share of such stock as determined by a majority of the Continuing
Directors in good faith; and (iii) in the case of property other than cash
or stock, the fair market value of such property on the date in question as
determined in good faith by a majority of the Continuing Directors.
(8) "INTERESTED STOCKHOLDER" shall mean any person (other than
this corporation, or any Subsidiary, and other than any profit-sharing
employee stock ownership or other employee benefit plan established by this
corporation or by any Subsidiary, or any trustee of, or fiduciary with
respect to, any such plan when acting in such capacity) who: (i) is the
beneficial owner of Voting Stock representing ten percent (10%) or more of
the votes entitled to be cast by the holders of all then outstanding shares
of Voting Stock; or (ii) is an Affiliate or Associate of this corporation
and at any time within the two-year period immediately prior to the date in
question was the beneficial owner of Voting Stock representing ten percent
(10%) or more of the votes entitled to be cast by the holders of all then
outstanding shares of Voting Stock.
(9) PERSON. The term "person" shall mean any individual, firm,
corporation or other entity and shall include any group comprised of any
person and any other person with whom such person
<PAGE> 17
or any Affiliate or Associate of such person has any agreement, arrangement
or understanding, directly or indirectly, for the purpose of acquiring,
holding, voting or disposing of Capital Stock.
(10) "SUBSIDIARY" shall mean any corporation of which a majority
of any class of equity security is beneficially owned by this corporation;
provided, however, that for the purposes of the definition of Interested
Stockholder, the term "Subsidiary" shall mean only a corporation of which a
majority of each class of equity security is beneficially owned by this
corporation.
(11) "VOTING STOCK" shall mean all Capital Stock that by its
terms may be voted on all matters submitted to shareholders of this
corporation generally.
(b) EIGHTY PERCENT VOTE. In addition to any affirmative vote
required by law, this charter or the by-laws of this corporation, and,
except as otherwise expressly provided in Subparagraph (c) of this
paragraph 11, a Business Combination shall require the affirmative vote of
not less than eighty percent (80%) of the votes entitled to be cast by the
holders of all then outstanding shares of Voting Stock, voting together as
a single class. Such affirmative vote shall be required notwithstanding
the fact that no vote may be required, or that a lesser percentage or
separate class vote may be specified, by law or in any agreement with any
national securities exchange or otherwise.
(c) VOTE WITH CONTINUING DIRECTOR APPROVAL. The provisions of
Subparagraph (b) of this paragraph 11 shall not be applicable to
<PAGE> 18
any particular Business Combination, and such Business Combination shall
require only such affirmative vote, if any, as is required by law or by any
other provision of this charter or the by-laws of this corporation, or any
agreement with any national securities exchange, if the Business
Combination is approved by a majority of the Continuing Directors.
(d) DUTIES OF BOARD. The Board of Directors shall have the power and
duty to determine for the purposes of this paragraph 11, on the basis of
information known to them after reasonable inquiry:
(1) whether a person is an Interested Stockholder,
(2) the number of shares of Capital Stock or otherwise
securities beneficially owned by any person,
(3) whether a person is an Affiliate or Associate of another,
and
(4) whether the assets that are the subject of any Business
Combination have, or the consideration to be received for
the issuance or transfer of securities by this corporation
or any Subsidiary in any Business Combination has, an
aggregate Fair Market Value of $25,000,000 or more. Any
such determination made in good faith shall be binding and
conclusive on all parties.
(e) FIDUCIARY OBLIGATIONS. Nothing contained in this paragraph 11
shall be construed to relieve any Interested Stockholder from any fiduciary
obligation imposed by law.
<PAGE> 19
(f) AMENDMENT OF PARAGRAPH 11. Notwithstanding any other provisions
of this charter or the by-laws of this corporation (and notwithstanding the
fact that a lesser percentage or separate class vote may be specified by
law, this charter or the by-laws of this corporation), the affirmative vote
of the holders of not less than eighty percent (80%) of the votes entitled
to be cast by the holders of all then outstanding shares of Voting Stock,
voting together as a single class, shall be required to make, alter, amend,
change, add to or repeal any provisions inconsistent with this paragraph
11; provided, however, that this Subparagraph (f) shall not apply to, and
such eighty percent (80%) vote shall not be required for, any amendment,
repeal or addition unanimously recommended by the Board if not less than
three-fourths of those directors who have voted in favor thereof are
persons who would be eligible to serve as Continuing Directors.
12. DIRECTOR LIABILITY. A. A director of the corporation shall not
be personally liable to the corporation or its shareholders for monetary
damages for breach of fiduciary duty as a director, except for liability
(i) for any breach of the director's duty of loyalty to the corporation or
its shareholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, or (iii)
under Section 48-18-304 of the Tennessee Business Corporation Act. If the
Tennessee Business Corporation Act is amended after approval by the
shareholders of this paragraph 12 to allow corporate action further
eliminating or limiting the personal liability of directors, then
<PAGE> 20
the liability of a director of the corporation shall be eliminated or
limited to the fullest extent permitted by the Tennessee Business
Corporation Act, as so amended.
B. Any repeal or modification of paragraph 12A by the
shareholders of the corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time of such
repeal or modification.
CERTIFICATE
This Restated Charter restates the text of the charter, as previously
amended, without making any further amendment or change requiring
shareholder approval and was duly adopted at a meeting of the Board of
Directors on June 23, 1988.
Dated, this 13th day of July, 1988.
SHONEY'S, INC.
By: /S/ GARY P. SPOLETA
Gary P. Spoleta, President
<PAGE> 21
CHANGE
OF
REGISTERED AGENT
OF
SHONEY'S, INC.
To the Secretary of State of the State of Tennessee:
Pursuant to the provisions of Section 48-15-102 of the Tennessee
Business Corporation Act, the undersigned domestic corporation submits the
following statement for the purpose of changing the registered agent for
the corporation in the state of Tennessee:
1. The name of the corporation is Shoney's, Inc.
2. The address of the corporation is 1727 Elm Hill Pike, Nashville,
Tennessee 37210.
3. The name of the current registered agent is Jess S. Shearin.
4. The name and street address of its registered agent in the state
of Tennessee shall be F. Ernie McDaniel, 1727 Elm Hill Pike, Nashville,
Tennessee 37210.
5. After the changes, the street addresses of the registered office
and the business office of the registered agent will be identical.
Dated this 6th day of October, 1988.
SHONEY'S, INC.
By: /S/ TAYLOR HENRY JR.
Title: Vice President - Finance
<PAGE> 22
ARTICLES OF AMENDMENT TO THE CHARTER
OF
SHONEY'S, INC.
Pursuant to the provisions of Section 48-20-106 of the Tennessee
Business Corporation Act, the undersigned Corporation adopts the following
amendments to its Restated Charter:
1. The name of the Corporation is: Shoney's, Inc.
2. Paragraph 6 of the Charter is deleted in its entirety, and the
following is added to the Charter as Paragraph 6:
6. STOCK. The maximum number of shares that the
corporation shall have the authority to issue is two hundred
million (200,000,000) shares of common stock with a par value of
One Dollar ($1.00) each, which shall have the right to receive
the net assets of the corporation upon dissolution.
3. The amendments contained in these Articles of Amendment were duly
adopted by the Corporation's shareholders at a duly called and
convened meeting held on August 21, 1996.
4. These Articles of Amendment shall be effective upon filing with the
Office of the Secretary of State of the State of Tennessee.
Dated: August 23, 1996
SHONEY'S, INC.
By: /S/ ROBERT J. AMES
Name: Robert J. Ames
Title: Assistant Secretary
This Instrument Prepared By:
WYATT, TARRANT & COMBS
1500 Nashville City Center
511 Union Street
Nashville, TN 37219-1750
<PAGE> 23
EXHIBIT 5
[Wyatt, Tarrant & Combs Letterhead]
September 9, 1996
Board of Directors
Shoney's, Inc.
1727 Elm Hill Pike
Nashville, TN 37210
Gentlemen:
We have acted as counsel to Shoney's, Inc. (the "Company"), in
connection with the registration of 5,000,000 shares of the Company's
common stock (the "Shares"), on the Registration Statement on Form S-8 (the
"Registration Statement") being filed by the Company with the Securities
and Exchange Commission pursuant to the Securities Act of 1933, as amended
(the "Act") which may be issued by the Company pursuant to the Shoney's,
Inc. 1981 Stock Option Plan (the "Plan").
We have examined and are familiar with the Company, its organization
and proceedings related thereto. We have also examined such other
documents and procedures as we have considered necessary for the purpose of
this opinion.
Based upon the foregoing and subject to the qualifications hereinafter
set forth, we are of the opinion that the Shares have been duly authorized
and, when issued and sold in accordance with the Registration Statement,
the prospectus delivered to participants in the Plan pursuant to the
requirements of the Act, the pertinent provisions of any applicable state
securities laws and the Plan, will be validly issued, fully paid and
nonassessable.
This opinion is limited to the laws of the State of Tennessee
and the Federal laws of the United States of America, and we
express no opinion as to the laws of any jurisdiction other than
those specified.
Our opinion is directed to the Board of Directors of the
Company and may not be relied upon by any persons other than said
directors, recipients of the prospectus and participants in the
Plan. We expressly disclaim any responsibility for advising you of
any change hereafter occurring in circumstances touching or
concerning the transaction which is the subject of this opinion,
including any changes in the law or in factual matters occurring
subsequent to the date of this opinion.
<PAGE> 24
We hereby consent to the filing of this opinion, or copies
thereof, as an Exhibit to the Registration Statement. In giving
this consent, we do not thereby admit that we are within the
category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Securities and Exchange
Commission thereunder.
Sincerely,
WYATT, TARRANT & COMBS
/s/ WYATT, TARRANT & COMBS
Exhibit 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration
Statement (Form S-8) and related Prospectus pertaining to the
Shoney's, Inc. 1981 Stock Option Plan of Shoney's, Inc. of our
report dated December 14, 1995, except for paragraphs 3 and 4 of
Note 13, as to which the date is January 2, 1996, with respect to
the consolidated financial statements and schedule of Shoney's, Inc.
included in its Annual Report (Form 10-K) for the year ended
October 29, 1995, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Nashville, Tennessee
September 5, 1996
