<PAGE> 1
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
FORM S-3
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 of (I.R.S. Employer
incorporation or organization) Identification No.)
1727 ELM HILL PIKE
NASHVILLE, TENNESSEE 37210
(615) 391-5201
(Address, including ZIP code, and telephone number, including area code, of
registrant's principal executive offices)
W. CRAIG BARBER
SHONEY'S, INC., 1727 ELM HILL PIKE, NASHVILLE, TENNESSEE 37210
TELEPHONE (615) 231-2385; FACSIMILE (615) 231-2531
(Name, address, including ZIP code, and telephone number, including
area code, of agent for service)
WITH COPIES TO:
CYNTHIA W. YOUNG, ESQ.
WYATT, TARRANT & COMBS, 2800 CITIZENS PLAZA, 500 WEST JEFFERSON STREET,
LOUISVILLE, KENTUCKY 40202
TELEPHONE (502) 562-7292; FACSIMILE (502) 589-0309
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes effective.
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 for the same offering. [ ]________
If delivery of this prospectus is expected to be made pursuant
to Rule 434, please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE UNDER THE SECURITIES ACT OF 1933:
- ---------------------------------------------------------------------------------------------------------
TITLE OF EACH CLASS PROPOSED MAXI- PROPOSED MAXI-
OF SECURITIES TO BE AMOUNT TO BE MUM OFFERING MUM AGGREGATE AMOUNT OF REG-
REGISTERED REGISTERED PRICE PER UNIT(1) OFFERING PRICE(1) ISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock, 265,934(2) $33.13 $5,493,884 $1,664.81
$1.00 par value
and associated
rights
</TABLE>
(1) Based on the exercise price at which the shares being registered
may be purchased under stock options granted pursuant to the
Shoney's, Inc. 1996 Stock Option Plan.
(2) The Registrant also registers hereby such indeterminate number
of additional shares of the Registrant's Common Stock as may be
required to cover anti-dilutive adjustments under the Shoney's,
Inc. 1996 Stock Option Plan.
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 Commission, acting pursuant to said
Section 8(a), may determine.
<PAGE> 2
SHONEY'S, INC.
Cross Reference Sheet
Item Location or Caption in
Number Item in S-3 Prospectus
- ------ ----------- -----------------------
1. Forepart of the Registration Statement Facing page of Registration
and Outside Front Cover Page of Statement; Outside Front
Prospectus Cover Page
2. Inside Front and Outside Back Cover Available Information;
of Prospectus Pages Table of Contents
3. Summary Information, Risk Factors and Prospectus Summary; Risk
Ratio of Earnings to Fixed Charges Factors
4. Use of Proceeds Use of Proceeds
5. Determination of Offering Price Determination of Offering
Price
6. Dilution Not Applicable
7. Selling Security Holders Not Applicable
8. Plan of Distribution Prospectus Summary;
Background of the Offering;
Information Regarding the
Plan
9. Description of Securities to be Not Applicable
Registered
10. Interests of Named Experts and Counsel Not Applicable
11. Material Changes Not Applicable
12. Incorporation of Certain Information by Incorporation of Certain
Reference Documents by Reference
13. Disclosure of Commission Position on Not Applicable
Indemnification for Securities Act
Liabilities
<PAGE> 3
PROSPECTUS
SHONEY'S, INC.
265,934 Shares
Common Stock
(Par Value $1 Per Share)
and Associated Rights
__________
This Prospectus relates to the shares of common stock, par value
$1.00 per share (the "Common Stock") of Shoney's, Inc. (the "Company"), and
associated common stock purchase rights, that may be sold upon the exercise of
options granted to directors and employees (and former directors and employees)
of TPI Enterprises, Inc. ("Enterprises") under the Shoney's, Inc. 1996 Stock
Option Plan (the "Plan"). Under the Plan, existing and former directors and
employees of Enterprises received options to purchase shares of Common Stock in
exchange (and substitution) for certain options to purchase common stock of
Enterprises that were outstanding at the time the Company acquired
substantially all of the assets of Enterprises, on September 9, 1996.
__________
THESE SECURITIES INVOLVE A DEGREE OF RISK
(SEE "RISK FACTORS")
__________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
Price to public(1) Underwriting discount and commissions(2) Proceeds to Company(3)
<S> <C> <C> <C>
Per share $7.61 - 33.13 * $7.61 - 33.13
Total $5,493,884 * $5,493,884
</TABLE>
(1) The price at which shares are offered is fixed by the options granted
pursuant to the Plan. The per share price and proceeds reflected in the above
table represent the range of the high and low exercise prices under such
options.
(2) This offering is being made directly by the Company, without the use of
underwriters. No underwriting commissions or special compensation will be
payable in connection with the offering.
(3) Before expenses. The total expenses the Company expects to incur in
connection with the offering are not expected to exceed $7,000.
__________
The date of this Prospectus is _______________ __, 1997.
<PAGE> 4
Table of Contents
AVAILABLE INFORMATION ...................................................... 2
PROSPECTUS SUMMARY ......................................................... 3
RISK FACTORS ............................................................... 4
THE COMPANY ................................................................ 5
BACKGROUND OF THE OFFERING ................................................. 5
USE OF PROCEEDS ............................................................ 5
INFORMATION REGARDING THE PLAN ............................................. 6
PURCHASE AND PAYMENT FOR SHARES OFFERED .................................... 6
RESTRICTION ON RESALE OF SHARES ............................................ 8
TAX CONSEQUENCES OF PURCHASING SHARES ...................................... 8
EXPERTS .................................................................... 9
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE ............................ 9
Available Information
The Company is subject to the information requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and in
accordance therewith files reports and other information with the Securities
and Exchange Commission (the "Commission"). Reports, proxy and information
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C., and at
the public reference facilities at certain of its Regional Offices at the
following addresses: 7 World Trade Center, 13th Floor, New York, New York
10048, and Suite 1400, Citicorp Center, 500 West Madison Street, Chicago,
Illinois 60661. Copies of such material can be obtained from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates. The Commission maintains a Web site that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission (such as the Company)
and the address of such site is http://www.sec.gov. The shares of Common Stock
are listed on the New York Stock Exchange. As such, the periodic reports, proxy
statements and other information filed by the Company with the Commission may
be inspected at the offices of the New York Stock Exchange, 20 Broad Street,
New York, New York 10005.
The Company undertakes to provide without charge to each person,
including any beneficial owner, to whom a Prospectus is delivered, upon written
or oral request of such person, a copy of any and all of the information that
has been incorporated by reference in the Prospectus (other than exhibits to
the information that is incorporated by reference unless such exhibits are
specifically incorporated by reference into the information that the Prospectus
incorporates). Such requests should be directed to F. E. McDaniel, Jr.,
Secretary and Treasurer of the Company, at 1727 Elm Hill Pike, Nashville,
Tennessee 37210; (615) 391-5201.
* * * * * * * *
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus in connection
with the offer made by 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 an implication that there has been no
change in the affairs of the Company since the date hereof. This Prospectus
does not constitute an offer or solicitation by anyone in any state in which
such offer or solicitation is not authorized or in which the person making such
offer or solicitation is not qualified to do so or to anyone to whom it is
qualified to do so or to anyone whom it is unlawful to make such offer or
solicitation.
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PROSPECTUS SUMMARY
This summary is qualified in its entirety by the detailed
information incorporated by reference into, or appearing elsewhere in, the
Prospectus.
THE COMPANY
The Company is a diversified food service chain consisting of
Shoney's, Captain D's, BarbWire's, Pargo's and Fifth Quarter restaurants and a
distribution division. As of October 27, 1996, the Company operated or
franchised 1,476 restaurants in 34 states. The principal executive offices of
the Company are located at 1727 Elm Hill Pike, Nashville, Tennessee 37210. The
Company's telephone number is (615) 391-5201.
On September 9, 1996, the Company acquired substantially all of
the assets of TPI Enterprises, Inc. ("Enterprises"), the Company's largest
franchisee, pursuant to a Plan of Tax-Free Reorganization Under Section
368(a)(1)(C) of the Internal Revenue Code and Agreement, dated March 15, 1996,
as amended (the "Reorganization Agreement"), among the Company, TPI Restaurants
Acquisition Corporation and Enterprises.
Issue A total of 265,934 shares of the Company's Common Stock
(the "Shares") pursuant to options granted to persons who
were existing or former directors or employees of
Enterprises, in connection with the Company's acquisition
of substantially all of Enterprises' assets (the
"Acquisition").
Pursuant to the Reorganization Agreement, options to
purchase Shares ("Replacement Options") were granted in
exchange (and substitution) for options to purchase common
stock of Enterprises ("Enterprises Options") that were
outstanding at the time of the Acquisition under one of the
following stock option plans of Enterprises: (1) TPI
Enterprises, Inc. 1982 Employees' Stock Option Plan; (2)
Telecom Plus International, Inc. 1983 Stock Option Plan;
(3) Telecom Plus International, Inc. 1984 Stock Option
Plan; (4) 1992 TPI Enterprises, Inc. Stock Option and
Incentive Plan; and (5) the TPI Enterprises, Inc.
Non-Employee Directors Stock Option Plan (collectively, the
"TPI Plans").
This Prospectus relates to the Shares issuable upon
exercise of Replacement Options which were substituted for
Enterprises Options originally granted by Enterprises to
its directors and employees.
The Plan The Plan pursuant to which the Replacement Options were
granted is administered by the Human Resources and
Compensation Committee (the "Committee") of the Company's
Board of Directors (the "Board").
Exercise Price The exercise price of each Replacement Option was
determined based on the exercise price of the Enterprises
Option it replaced and the number of shares of Common Stock
that were issued to Enterprises in the Reorganization. The
exercise price is not based on the fair market value of the
Shares.
Vesting and Term The exercisability and term of each Replacement Option is
based on the exercisability and term of the Enterprises
Option it is replacing.
Tax Effects An option holder will generally recognize ordinary income
in the year in which the Replacement Option is exercised
and Shares are purchased.
3
<PAGE> 6
RISK FACTORS
Primarily as a result of the leveraged recapitalization of the
Company in 1988, the Company is highly leveraged. In the 1988 recapitalization,
all shareholders of record on July 5, 1988 received, per Share, a cash dividend
of $16 and $4 in principal amount of subordinated debentures, due 2000, bearing
12% interest, payable semi-annually. The cash dividend was financed through
$585 million in borrowings and $145.7 million in aggregate principal amount of
debentures were distributed. At October 27, 1996, the Company's indebtedness
(including a reserve for litigation settlement) totaled approximately $549
million, and it had shareholders' equity of $528,000.
On September 9, 1996, the Company completed its acquisition of
substantially all of the assets of Enterprises, in exchange for the issuance by
the Company of 6,785,114 shares of Common Stock and associated rights, and the
assumption of certain liabilities, contracts and other obligations of
Enterprises pursuant to the Reorganization Agreement (the "Closing"). In
connection with the Acquisition, the Company assumed 8.25% Convertible
Subordinated Debentures due July 2002 in the aggregate principal amount of
$51,563,000 and discharged, with funds borrowed under a bridge loan, debt of
Enterprises totaling approximately $42.9 million. The Company also borrowed
$57.1 million under the bridge loan to provide capital for remodeling the newly
acquired restaurants and to provide additional working capital for the Company.
FINANCIAL CONDITION AND OPERATIONS
The level of the Company's indebtedness may limit the ability of
the Company to effect future financings and may otherwise limit corporate
activities. If the Company were required to refinance its indebtedness through
alternative sources of financing or to reduce capital expenditures, the
Company's competitive position and ability to generate cash flow in the future
could be adversely affected. Moreover, no assurance can be given that such
alternative sources of financing could be obtained. Also, under the terms of
the Company's senior debt and the convertible debentures assumed by the Company
in the Reorganization, the Company is prohibited from paying dividends or
distributions on Shares and is limited in its ability to incur additional debt,
leasehold obligations and contingent liabilities while such debt and debentures
are outstanding.
The Company's ability to satisfy its obligations, to reduce debt
and to increase equity will be dependent upon its future performance, which
will be subject to prevailing economic conditions, and to financial, business
and other factors, including factors beyond the control of the Company. In the
event of bankruptcy, the Shares will rank below all debt claims of the Company,
including claims of the financial institutions that provide the Company's
borrowings and the holders of certain debt securities of the Company. Also,
certain financial institutions that provide the Company's borrowings have
perfected security interests in substantially all material assets of the
Company. Therefore, in the event of bankruptcy, there would be no assurances
that there would be sufficient assets to pay the claims of the financial
institutions providing the Company's borrowings and the holders of the
Company's debt securities with any excess to satisfy all or a portion of the
claims of the holders of the Shares.
CHANGES IN CONTROL OF THE COMPANY
Certain restrictions contained in the agreements with the
Company's lenders, the Company's shareholder rights plan, certain existing
provisions in the Company's charter, and certain provisions of law may have the
effect of making more difficult or discouraging a proxy contest involving the
Company, certain mergers, a tender offer, an open market purchase program, or
other purchases of Shares in circumstances that could give shareholders the
opportunity to sell their Shares at a premium over then prevailing market
prices.
4
<PAGE> 7
DETERMINATION OF OFFERING PRICE
The price at which Shares may be acquired upon exercise of
Replacement Options is not based on the current market value of the Shares. The
exercise price of each Replacement Option is based on the exercise price of the
Enterprises Option for which it is being exchanged (and substituted) and the
Exchange Ratio, which may be significantly higher than the market price of the
Common Stock. The Common Stock is currently traded on the New York Stock
Exchange under the symbol "SHN".
THE COMPANY
The Company is principally engaged in the operation and
franchising of restaurants in the United States and operates a Commissary
business which includes five distribution centers that support Company and
franchise operations by providing most of the necessary food and supplies. The
Company was incorporated under the laws of the State of Tennessee in 1968. Its
principal executive offices are located at 1727 Elm Hill Pike, Nashville,
Tennessee 37210. The Company's telephone number is (615) 391-5201.
BACKGROUND OF THE OFFERING
On September 9, 1996, the Company acquired substantially all of
the assets of Enterprises, the Company's largest franchisee, pursuant to the
Reorganization Agreement. In the Acquisition, the Company acquired, among other
things, TPI Restaurants, Inc., in exchange for a total of 6,785,114 shares of
Common Stock, or 0.3283 shares of Common Stock for each share of common stock
of Enterprises then outstanding (the "Exchange Ratio"), and the Company's
assumption of certain obligations of Enterprises. Under the Reorganization
Agreement, Enterprises is required to liquidate and dissolve following the
closing of the Acquisition, in accordance with the Plan of Complete Liquidation
adopted by its shareholders at a meeting held on August 21, 1996.
When the Acquisition was consummated, Enterprises had
outstanding Enterprises Options which had been granted to directors, officers
and employees of Enterprises and its subsidiaries under the TPI Plans. The
Reorganization Agreement provided for the continuation of the right to acquire
shares under the Enterprises Options through the replacement of the Company's
options to purchase shares of Common Stock.
As contemplated by the Reorganization Agreement, the Board
adopted the Shoney's, Inc. 1996 Stock Option Plan in August 1996 to authorize
the grant of the Replacement Options, in exchange for (and substitution of) the
Enterprises Options outstanding at the Closing.
USE OF PROCEEDS
The principal reason for the Offering is to fulfill the
Company's obligation under the Reorganization Agreement to offer Shares under
the Replacement Options. Net proceeds received by the Company upon the exercise
of the Replacement Options will be used by the Company for general corporate
purposes. The Company has no specific plans for the proceeds.
5
<PAGE> 8
INFORMATION REGARDING THE PLAN
GENERAL. The Shoney's, Inc. 1996 Stock Option Plan was adopted
by the Board in August 1996. The address and telephone number that participants
in the Plan may use to obtain additional information about the Plan and its
administrator are: Shoney's, Inc., 1727 Elm Hill Pike, Nashville, Tennessee
37210; (615) 391-5201. Questions may be directed to the Company's Secretary and
Treasurer, F.E. McDaniel, Jr., at the same address and telephone number. The
Plan is not subject to the Employee Retirement Income Security Act of 1974.
PURPOSE. The purpose of the Plan is to continue and consolidate
into one plan the TPI Plans of Enterprises, to the extent they were assumed by
the Company pursuant to the Reorganization Agreement.
In connection with its acquisition of substantially all of the
assets of Enterprises, the Company did not assume any obligation of Enterprises
with respect to stock options granted under the TPI Plans other than the
obligation to issue shares of Common Stock upon a participant's timely exercise
of stock options, as authorized by the Plan. The exchange, and substitution, of
stock options contemplated by the Plan shall not affect the right of
participants to participate in cash distributions by Enterprises in its
liquidation and dissolution following the Closing, in accordance with the Plan
of Complete Liquidation adopted by its shareholders at a meeting held on August
21, 1996.
ADMINISTRATION. The Plan is administered by the Human Resources
and Compensation Committee of the Board of Directors. Members of the Committee
are appointed by the Board from its membership. Members of the Committee serve
at the discretion of the Board and may be removed from the Committee by a vote
of the Board.
The interpretation by the Committee of any provisions of the
Plan, the TPI Plans and the stock option agreements entered into pursuant to
the Plan is final, conclusive, and binding upon all persons. The Committee has
exclusive jurisdiction to determine all questions relating to the
administration of the Plan and options granted under the Plan, including,
without limitation, matters relating to the exercisability and terms of
options, conditions imposed on the granting of options and the terms of the
option agreements consistent with the terms of the Plan.
AMENDMENT, SUSPENSION OR TERMINATION. The Board may, at any
time, amend, suspend or terminate the Plan in any respect that it may deem to
be in the best interests of the Company.
TERM. The Plan will expire on November 21, 2004 unless earlier
terminated by the Board of Directors. No option can be granted under the Plan
after its termination. However, any option granted under the Plan prior to its
termination may be exercised in accordance with its terms.
PURCHASE AND PAYMENT
FOR SHARES OFFERED
Each Replacement Option is evidenced by an option agreement
signed by the Optionee and by an executive officer of the Company on behalf of
the Company. Every Optionee, upon acceptance of such option agreement, will be
bound by the terms and restrictions of the Plan and of the option agreement.
The following summarizes certain terms and conditions of the option agreements.
In addition, the option agreements may contain such other terms and conditions
that are not inconsistent with the Plan as the Committee may deem appropriate.
Optionees are urged to read carefully the terms and conditions contained in
their individual stock option agreements.
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NUMBER OF SHARES. The actual number of Shares subject to a
Replacement Option is set forth in the option agreement of each Optionee. The
number of shares of Common Stock granted is determined by MULTIPLYING the
number of shares of Enterprises Common Stock remaining under the Enterprises
Option that was replaced as of the Closing BY the Exchange Ratio.
The number of Shares is subject to adjustment in the event of
certain changes in the Common Stock while the Replacement Option is
outstanding. For example, the number of Shares may be adjusted if there is a
stock dividend or stock split with respect to the Common Stock, or in the event
of certain mergers or acquisition transactions. The conditions upon which and
the manner in which the Shares subject to an option will be adjusted are
contained in the option agreement relating to that option. Each Optionee should
review the capital adjustment provisions contained in his or her option
agreement carefully.
OPTION PRICE. The option price per share of Common Stock is set
forth in the option agreement. For each Replacement Option, the option price is
determined by DIVIDING the exercise price per share of Enterprises Common Stock
subject to the Enterprises Option in exchange for which such option is granted,
BY the Exchange Ratio. The option price is not based on the current fair market
value of the Common Stock, and may be significantly higher than the price at
which the Common Stock is currently trading. The closing sales price of the
Common Stock on the New York Stock Exchange, the principal exchange on which
the Common Stock is traded, was $9.3750 on September 6, 1996.
Like the number of shares subject to a Replacement Option, the
option price is subject to adjustment in the event of certain changes in the
Common Stock while the Replacement Option is outstanding. The conditions upon
which and the manner in which the option price will be adjusted are contained
in the option agreement relating to that option. Each Optionee should review
the capital adjustment provisions contained in his or her option agreement
carefully.
OPTION PERIOD; VESTING; EXERCISABILITY. Each option agreement
sets forth the term of the Replacement Option, which is the period of time over
which the Replacement Option can be exercised IF it or any portion has vested.
The term of each Replacement Option is generally equal to the unexpired term of
the Enterprises Option that it replaces; that is, for a period of up to 10
years from the date the Enterprises Option was originally granted. The
Replacement Option may expire earlier however. For example, the Replacement
Option generally expires 3 months after termination of employment, extended to
1 year in the case of the Optionee's death or disability as provided in the
option agreement, and expires on the date of termination of employment if the
Optionee voluntarily terminates employment, is terminated for cause, or the
subsidiary employing the Optionee ceases to be a subsidiary of the Company.
Likewise, each option agreement also sets forth the vesting
schedule which will determine when and to what extent the Replacement Option is
currently exercisable. Generally, each Replacement Option is, and will become
exercisable to the same extent that the Enterprises Option it is replacing is,
or would have become, exercisable based on the original grant date of the
Enterprises Option, i.e., the options vest at the rate of 20% per year over a 5
year period commencing on the first anniversary of the original grant date of
the Enterprises Option.
The procedures for exercising a Replacement Option under the
Plan are contained in the option agreement. Notice of exercise and payment in
full of the option price is required to exercise a Replacement Option. In some
instances, the option agreement may require that the option price be paid by
certified check, and may require that an Optionee purchase a minimum of at
least 100 shares (or the remaining shares subject to the option, if less than
100) upon any exercise.
TAX WITHHOLDING. The Company's obligation to deliver shares on
the exercise of a Replacement Option will be subject to satisfaction of any
applicable tax withholding requirements, and the Company, in
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<PAGE> 10
its sole discretion, may withhold shares otherwise transferable to an Optionee
upon exercise of an option in order to satisfy such withholding requirements.
RESTRICTION ON RESALE OF SHARES
The Replacement Options are not transferable other than by will
or the laws of descent and distribution. Replacement Options may be exercised
during the lifetime of an Optionee only by the Optionee. The option agreement
evidencing each Replacement Option identifies who will have the right to
exercise an option after the death of an Optionee.
Shares purchased may be resold without restriction under the
exemption from registration provided by Section 4(1) of the Securities Act of
1933, as amended (the "Securities Act"), unless they are purchased by an
"affiliate" of the Company. An "affiliate" may resell such shares only under an
appropriate effective registration statement under the Securities Act or
pursuant to an available exemption from registration.
An "affiliate" is defined under the Securities Act as a person
who directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, the Company. In general,
executive officers or any other persons with the power of management who can
direct the policies of the Company and relatives of such persons, among others,
may be deemed to be affiliates of the Company.
If an affiliate wishes to resell or reoffer Shares received
under the Plan, and if a registration statement were not in effect with respect
to such Shares, the affiliate would be obligated, as a precondition to any such
resale or reoffer, to comply with either (i) Rule 144 under the Securities Act,
which, among other things, limits the number of Shares which may be sold in any
three month period to one percent of the Company's outstanding Shares, or the
average weekly trading volume in the Shares over the prior four weeks,
whichever is greater, or (ii) any other provision of the Securities Act
exempting resales of securities from registration.
Further, under Section 16(b) of the Securities Exchange Act of
1934, as amended, any profits from purchases and sales, or sales and purchases,
of the Shares within any period of less than six (6) months by executive
officers, directors, or 10% shareholders may be recoverable by the Company, and
an executive officer, director or 10% shareholder may not sell or otherwise
transfer the Shares purchased under the Plan during the six (6) month period
after such a purchase. Under current regulations, the exercise of an option
granted under the Plan would not be considered a "purchase" within the meaning
of Section 16(b) so long as the option is not "out-of-the-money".
Each holder of a Replacement Option who may be an affiliate
should, prior to reselling or reoffering any Shares purchased, consult counsel
to determine whether he or she may be subject to any of the foregoing
restrictions.
TAX CONSEQUENCES OF PURCHASING SHARES
FEDERAL INCOME TAX TREATMENT. The Plan is not, nor is it
intended to be, qualified under Section 401(a) of the Code. The grant of an
option under the Plan has no immediate federal income tax consequences to the
Company or to the Optionee. When an option is exercised, the excess of the then
fair market value of the Common Stock over the option price will constitute
ordinary income to the optionee. The Company will be required to capitalize the
portion of the ordinary income recognized by the Optionee that is
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<PAGE> 11
attributable to services performed for Enterprises or its subsidiaries and will
be entitled to deduct the portion attributable to services performed for the
Company or its subsidiaries. Upon disposition of the stock by the employee,
long-term or short-term capital gain or loss, as the case may be, will be
recognized, equal to the difference between the amount realized on such
disposition and the tax cost for the stock, which will include the amount
previously recognized as ordinary income. The holding period for capital gains
purposes will commence on the day the Optionee acquires the Shares pursuant to
exercise of the option.
Any ordinary income realized by the Optionee will constitute
wages for federal income and employment tax purposes. Accordingly, the Company
may make whatever arrangements are necessary to ensure that funds equaling the
amount of income and employment taxes required to be withheld are available for
payment.
STATE INCOME TAX TREATMENT. The grant, exercise and/or
subsequent sale of shares acquired upon exercise of an option awarded under the
Plan may also have state and local tax effects. While these tax effects will
depend on the jurisdictions involved, such as where the Optionee is employed
and where he or she resides, generally, the grant, exercise and/or subsequent
sale of Shares acquired upon the exercise of a Replacement Option has state
income tax consequences similar to the federal income tax consequences
described above.
The foregoing summary is a general summary of the significant
federal and state income tax consequences of nonqualified stock options. This
summary is not intended to be an exhaustive discussion of all of the relevant
tax issues related to such options, nor should it be viewed as tax advice for
the Optionee. Rather, it represents the Company's best understanding of the
primary federal and state income tax ramifications involved in connection with
such options under the Code. Optionees are strongly advised to consult their
own tax advisors with respect to the federal, state and local tax consequences
of these options.
EXPERTS
The consolidated financial statements and schedule of Shoney's,
Inc. appearing in the Company's Annual Report (Form 10-K) for the fiscal year
ended October 27, 1996, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements and
schedule are incorporated herein by reference in reliance upon such report
given upon the authority of such firm as experts in accounting and auditing.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Securities
and Exchange Commission (the "Commission") are specifically incorporated herein
by reference:
A. The Company's Annual Report on Form 10-K for the fiscal year
ended October 27, 1996, filed with the Commission on January 27, 1997;
B. The description of the Company's Common Stock that is
contained in the Company'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
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<PAGE> 12
C. The description of the Company's Rights to Purchase Common
Stock that is contained in the Company'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 filed by the Company with the Securities and
Exchange Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this Prospectus and 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 into this Prospectus and to be a part
hereof from the respective dates 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 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 Prospectus.
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<PAGE> 13
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses to be incurred in connection with the issuance and
distribution of the shares of Common Stock, par value $1.00 per share (the
"Common Stock"), registered under this Registration Statement (estimated,
except for the registration fee) are as follows:
Securities and Exchange Commission Registration Fee .......... $ 1665
Legal Fees and Expenses ...................................... 3000
Accounting Fees and Expenses ................................. 2000
Printing ..................................................... 335
Total ................................................ $ 7000
ITEM 15. 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 48-18-509 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 process the 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
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<PAGE> 14
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 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.
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<PAGE> 15
ITEM 16. EXHIBITS
The following identifies the exhibits filed with, or incorporated by
reference in, this registration statement:
Number Description
2 Plan of Tax-Free Reorganization Under Section 368(a)(1)(C) of the
Internal Revenue Code and Agreement, dated March 15, 1996, filed as
Exhibit 2 to the Company's current report on Form 8-K filed with the
Commission on March 20, 1996, and incorporated herein by this
reference, as amended by Amendment No. 1, dated June 14, 1996, filed
as Exhibit 2.2 to the Company's Quarterly Report on Form 10-Q for the
quarter ended May 12, 1996, and incorporated herein by this reference,
and Amendment No. 2, dated July 18, 1996, and Amendment No. 3, dated
August 21, 1996, filed as Exhibit 2.3 to the Company's Current Report
on Form 8-K filed with the Commission on September 11, 1996, and
incorporated herein by this reference.
4.1 Charter of Shoney's, Inc., as amended, filed as Exhibit 4.1 to the
Company's Registration Statement on Form S-8 (File No. 333-11715)
filed with the Commission effective September 11, 1996, and
incorporated herein by this reference.
4.2 Amended and Restated Bylaws of Shoney's, Inc., filed as Exhibits 3(ii)
and 4.2 to the Company'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. (the "Company") and Harris Trust and Savings
Bank, as Rights Agent, filed as Exhibit 4 to the Company'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.
(the "Company") and Harris Trust and Savings Bank, as Rights Agent,
filed as Exhibit 4 to the Company'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.
(the "Company") and Harris Trust and Savings Bank, as Rights Agent,
filed as Exhibit 4.5 to the Company'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.
4.6 Indenture dated as of April 1, 1989 between the Company and Sovran
Bank/Central South, as Trustee relating to $201,250,000 in principal
amount of liquid yield option notes due 2004, filed as Exhibit 4.8 to
Amendment No. 1 to the Company's Registration Statement on Form S-3
filed with the Commission on April 3, 1989 (No. 33-27571), and
incorporated herein by this reference.
4.7 Revolving Credit Agreement dated as of July 13, 1988 between the
Company and First American National Bank, filed as Exhibit 4.1 and
19.1 to the Company's Current Report on Form 8-K filed with the
Commission on December 3, 1991, and incorporated herein by this
reference.
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<PAGE> 16
4.8 Modification Agreement No. 1 dated as of March 5, 1991 to Revolving
Credit Agreement, dated as of July 13, 1988 between the Company and
First American National Bank, filed as Exhibit 4.2 and 19.2 to the
Company's Current Report on Form 8-K filed with the Commission on
December 3, 1991, and incorporated herein by this reference.
4.9 Alternative Rate Agreement dated as of June 4, 1992 supplementing that
certain Revolving Credit Agreement dated as of July 13, 1988 between
the Company and First American National Bank, filed as Exhibit 4.36
and 10.29 to Post Effective Amendment No. 5 to the Company's
Registration Statement on Form S-8 (File No. 2-64257) filed with the
Commission on January 25, 1993, and incorporated herein by this
reference.
4.10 Note Issuance Agreement, dated as of October 1, 1989, among the
Company, Sovran Bank, N.A., as Note Agent and Placement Agent and
Sovran Bank / Central South, as Escrow Agent, filed as Exhibit 19.5
and 28.3 to the Company's Current Report on Form 8-K filed with the
Commission on December 3, 1991, and incorporated herein by this
reference.
4.11 Reimbursement Agreement, dated as of October 1, 1989, together with
the Standby Note relating thereto, among the Company, Sovran Bank /
Central South, Long Term Credit Bank of Japan, Limited, New York
Branch, Kredeitbank, N.V., New York Branch and Sovran Bank / Central
South, as Agent, filed as Exhibit 19.6 and 28.4 to the Company's
Current Report on Form 8-K filed with the Commission on December 3,
1991, and incorporated herein by this reference.
4.12 Modification Agreement No. 1 dated as of July 21, 1993 to
Reimbursement Agreement, dated as of October 1, 1989, together with
the Standby Note relating thereto, among the Company, Sovran Bank /
Central South, Long Term Credit Bank of Japan, Limited, New York
Branch, Kredeitbank, N.V., New York Branch and Sovran Bank / Central
South, as Agent, filed as Exhibit 4.4 to the Company's Quarterly
Report on Form 10-Q for the quarter ended August 1, 1993 filed with
the Commission on September 15, 1993, and incorporated herein by this
reference.
4.13 Modification Agreement No. 2 dated as of June 8, 1994 to Reimbursement
Agreement, dated as of October 1, 1989, together with the Standby Note
relating thereto, among the Company, NationsBank of Tennessee, N.A.
(formerly Sovran Bank / Central South), Long Term Credit Bank of
Japan, Limited, New York Branch, Kredeitbank, N.V., New York Branch
and NationsBank of Tennessee, N.A., as Agent, filed as Exhibit 4.30 to
the Company's Annual Report on Form 10-K for the fiscal year ended
October 30, 1994 filed with the Commission on January 30, 1995, and
incorporated herein by this reference.
4.14 Modification Agreement No. 3 dated as of August 21, 1996 to
Reimbursement Agreement dated as of October 1, 1989, together with the
Standby Note relating thereto, among the Company, NationsBank of
Tennessee, N.A. (formerly Sovran Bank / Central South), Long Term
Credit Bank of Japan, Limited, New York Branch, Kredeitbank, N.V., New
York Branch and NationsBank of Tennessee, N.A., as Agent, filed as
Exhibit 4.14 to the Company's Quarterly Report on Form 10-Q for the
quarter ended August 4, 1996 filed with the Commission on September
17, 1996, and incorporated herein by this reference.
4.15 Note Issuance Agreement, dated as of October 1, 1990, among the
Company, Sovran Bank, N.A., as Note Agent and Placement Agent and
Sovran Bank / Central South, as Escrow Agent, filed as Exhibit 19.7
and 28.5 to the Company's Current Report on Form 8-K filed with the
Commission on December 3, 1991, and incorporated herein by this
reference.
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<PAGE> 17
4.16 Reimbursement Agreement, dated as of October 1, 1990, together with
the Standby Note relating thereto, between the Company and Sovran Bank
/ Central South, filed as Exhibit 19.8 and 28.6 to the Company's
Current Report on Form 8-K filed with the Commission on December 3,
1991, and incorporated herein by this reference.
4.17 Modification Agreement No. 1 dated as of July 21, 1993 to
Reimbursement Agreement, dated as of October 1, 1990, together with
the Standby Note relating thereto, between the Company and Sovran Bank
/ Central South, filed as Exhibit 4.5 to the Company's Quarterly
Report on Form 10-Q for the quarter ended August 1, 1993 filed with
the Commission on September 15, 1993, and incorporated herein by this
reference.
4.18 Modification Agreement No. 2 dated as of April 1, 1994 to
Reimbursement Agreement, dated as of October 1, 1990, together with
the Standby Note relating thereto, between the Company and NationsBank
of Tennessee, N.A. (formerly Sovran Bank / Central South), filed as
Exhibit 4.34 to the Company's Annual Report on Form 10-K for the
fiscal year ended October 30, 1994 filed with the Commission on
January 30, 1995, and incorporated herein by this reference.
4.19 Amended and Restated Note Issuance Agreement, dated as of November 1,
1993, among the Company, NationsBank of Virginia, N.A., as Note Agent
and Placement Agent and NationsBank of Tennessee, as Escrow Agent,
filed as Exhibit 4.36 to the Company's Annual Report on Form 10-K for
the fiscal year ended October 31, 1993 filed with the Commission on
January 31, 1994, and incorporated herein by this reference.
4.20 Reimbursement Agreement, dated as of October 1, 1991, together with
the Standby Note relating thereto, between the Company and National
Bank of Canada, New York Branch, filed as Exhibit 28.10 to the
Company's Current Report on Form 8-K filed with the Commission on
December 3, 1991, and incorporated herein by this reference.
4.21 Assignment, Assumption and Modification Agreement dated as of November
4, 1993 relating to Reimbursement Agreement, dated as of October 1,
1991, among the Company, NationsBank of Georgia, N.A. and National
Bank of Canada, New York Branch, filed as Exhibit 4.38 to the
Company's Annual Report on Form 10-K for the fiscal year ended October
31, 1993 filed with the Commission on January 31, 1994, and
incorporated herein by this reference.
4.22 Loan Agreement dated as of September 24, 1992 between the Company and
CIBC Inc., filed as Exhibit 4.43 and 10.36 to Post Effective Amendment
No. 5 to the Company's Registration Statement on Form S-8 (File No.
2-64257) filed with the Commission on January 25, 1993, and
incorporated herein by this reference.
4.23 Modification Agreement No. 1 dated as of October 25, 1992 to Loan
Agreement dated as of September 24, 1992 between the Company and CIBC
Inc., filed as Exhibit 4.44 and 10.37 to Post Effective Amendment No.
5 to the Company's Registration Statement on Form S-8 (File No.
2-64257) filed with the Commission on January 25, 1993, and
incorporated herein by this reference.
4.24 Modification Agreement No. 2 dated as of July 21, 1993 to Loan
Agreement dated as of September 24, 1992 between the Company and CIBC
Inc., filed as Exhibit 4.6 to the Company's Quarterly Report on Form
10-Q for the quarter ended August 1, 1993 filed with the Commission on
September 15, 1993, and incorporated herein by this reference.
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<PAGE> 18
4.25 Modification Agreement No. 3 dated as of January 23, 1997 to Loan
Agreement dated as of September 24, 1992 between the Company and CIBC
Inc., filed as Exhibit 4.25 to the Company's Annual Report on Form
10-K for the fiscal year ended October 27, 1996 filed with the
Commission on January 27, 1997, and incorporated herein by this
reference.
4.26 Loan Agreement dated as of April 21, 1993 between the Company and
NationsBank of Tennessee, N.A., filed as Exhibit 4 to the Company's
Quarterly Report on Form 10-Q for the quarter ended May 9, 1993 filed
with the Commission on June 23, 1993, and incorporated herein by this
reference.
4.27 Modification Agreement No. 1 dated as of July 21, 1993 to Loan
Agreement dated as of April 21, 1993 between the Company and
NationsBank of Tennessee, N.A., filed as Exhibit 4.7 to the Company's
Quarterly Report on Form 10-Q for the quarter ended August 1, 1993
filed with the Commission on September 15, 1993, and incorporated
herein by this reference.
4.28 Loan Agreement dated as of December 1, 1994 between the Company and
NationsBank of Tennessee, N.A., filed as Exhibit 4.43 to the Company's
Annual Report on Form 10-K for the fiscal year ended October 30, 1994
filed with the Commission on January 30, 1995, and incorporated herein
by this reference.
4.29 U.S. $270,000,000 Amended and Restated Reducing Revolving Credit
Agreement, dated as of July 21, 1993, as amended and restated as of
May 3, 1996, among Shoney's, Inc., as the Borrower, CIBC Inc.,
acting through its Atlanta Office and various other financial
institutions now or hereafter parties hereto, as the Lenders, and
Canadian Imperial Bank of Commerce acting through its New York Agency,
as the Agent for the Lenders, filed as Exhibit 4.2 to the Company's
Current Report on Form 8-K filed with the Commission on May 15, 1996,
and incorporated herein by this reference.
4.30 Modification Agreement No. 1 dated as of October 24, 1996 to U.S.
$270,000,000 Amended and Restated Reducing Revolving Credit Agreement,
dated as of July 21, 1993, as amended and restated as of May 3, 1996,
among Shoney's, Inc., as the Borrower, CIBC Inc., acting through its
Atlanta Office and various other financial institutions now or
hereafter parties hereto, as the Lenders, and Canadian Imperial Bank
of Commerce acting through its New York Agency, as the Agent for the
Lenders, filed as Exhibit 4.30 to the Company's Annual Report on Form
10-K for the fiscal year ended October 27, 1996 filed with the
Commission on January 27, 1997, and incorporated herein by this
reference.
4.31 Modification Agreement No. 2 dated as of January 9, 1997 to U.S.
$270,000,000 Amended and Restated Reducing Revolving Credit Agreement,
dated as of July 21, 1993, as amended and restated as of May 3, 1996,
among Shoney's, Inc., as the Borrower, CIBC Inc., acting through its
Atlanta Office and various other financial institutions now or
hereafter parties hereto, as the Lenders, and Canadian Imperial Bank
of Commerce acting through its New York Agency, as the Agent for the
Lenders, filed as Exhibit 4.31 to the Company's Annual Report on Form
10-K for the fiscal year ended October 27, 1996 filed with the
Commission on January 27, 1997, and incorporated herein by this
reference.
4.32 U.S. $100,000,000 Bridge Loan Credit Agreement, dated as of May 3,
1996, among Shoney's, Inc., as the Borrower, Canadian Imperial Bank of
Commerce, and various other financial institutions now or hereafter
parties hereto, as the Lenders, and Canadian Imperial Bank of Commerce
acting through its New York Agency, as the Agent for the Lenders,
filed as Exhibit 4.1 to the Company's Current Report on Form 8-K filed
with the Commission on May 15, 1996, and incorporated herein by this
reference.
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<PAGE> 19
4.33 Modification Agreement No. 1 dated as of October 24, 1996 to U.S.
$100,000,000 Bridge Loan Credit Agreement, dated as of May 3, 1996,
among Shoney's, Inc., as the Borrower, Canadian Imperial Bank of
Commerce, and various other financial institutions now or hereafter
parties hereto, as the Lenders, and Canadian Imperial Bank of Commerce
acting through its New York Agency, as the Agent for the Lenders,
filed as Exhibit 4.33 to the Company's Annual Report on Form 10-K for
the fiscal year ended October 27, 1996 filed with the Commission on
January 27, 1997, and incorporated herein by this reference.
4.34 Modification Agreement No. 2 dated as of January 9, 1997 to U.S.
$100,000,000 Bridge Loan Credit Agreement, dated as of May 3, 1996,
among Shoney's, Inc., as the Borrower, Canadian Imperial Bank of
Commerce, and various other financial institutions now or hereafter
parties hereto, as the Lenders, and Canadian Imperial Bank of Commerce
acting through its New York Agency, as the Agent for the Lenders,
filed as Exhibit 4.34 to the Company's Annual Report on Form 10-K for
the fiscal year ended October 27, 1996 filed with the Commission on
January 27, 1997, and incorporated herein by this reference.
4.35 Indenture, dated as of July 15, 1992, among TPI Enterprises, Inc., TPI
Restaurants, Inc., as Guarantor, and NationsBank of Tennessee (now The
Bank of New York, as successor trustee), as trustee, relating to 8.25%
Convertible Subordinated Debentures due 2002, filed as Exhibit 10 (a)
of the Current Report on Form 8-K of TPI Restaurants, Inc. dated July
29, 1992 (Commission File No. 0-12312) and incorporated herein by this
reference.
4.36 First Supplemental Indenture, dated as of September 9, 1996, among TPI
Enterprises, Inc., TPI Restaurants, Inc., as Guarantor, The Bank of
New York, as trustee, and Shoney's, Inc., relating to 8.25%
Convertible Subordinated Debentures due 2002, filed as Exhibit 4.2 to
the Company's Current Report on Form 8-K filed with the Commission on
September 11, 1996, and incorporated herein by this reference.
5 Opinion of Wyatt, Tarrant & Combs regarding legality.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Wyatt, Tarrant & Combs (included in Exhibit 5).
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<PAGE> 20
ITEM 22. UNDERTAKINGS
(a) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(b) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales of the
securities 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 of 1933;
(ii) to reflect in the Prospectus any facts or events arising
after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(iii) 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 (b)(l)(i) and (b)(l)(ii) do
not apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration
statement.
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(c) The undersigned 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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<PAGE> 21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe 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, hereunto
duly authorized, in the City of Nashville, State of Tennessee, on January 30,
1997 .
SHONEY'S, INC.
By: /s/ C. STEPHEN LYNN
------------------------------------
C. Stephen Lynn
Title: Chairman of the Board, Chief
Executive Officer and President
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, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Capacity Date
--------- -------- ----
/s/ C. STEPHEN LYNN Chairman of the Board, Chief 1/30/97
- ------------------------ Executive Officer, President ------------------
C. Stephen Lynn and Director
/s/ W. CRAIG BARBER Senior Executive Vice President, 1/30/97
- ------------------------ Chief Administrative Officer ------------------
W. Craig Barber and Chief Financial Officer
II-9
<PAGE> 22
/s/ ROBERT M. LANGFORD Senior Executive Vice President 1/30/97
- ------------------------ and Chief Operating Officer ------------------
Robert M. Langford
/s/ F.E. McDANIEL, JR. Senior Vice President, Secretary 1/30/97
- ------------------------ and Treasurer ------------------
F.E. McDaniel, Jr.
/s/ GREGORY A. HAYES Senior Vice President and 1/30/97
- ------------------------ Controller ------------------
Gregory A. Hayes
/s/ DENNIS C. BOTTORFF Director 1/30/97
- ------------------------ ------------------
Dennis C. Bottorff
/s/ CAROLE F. HOOVER Director 1/30/97
- ------------------------ ------------------
Carole F. Hoover
/s/ VICTORIA B. JACKSON Director 1/30/97
- ------------------------ ------------------
Victoria B. Jackson
/s/ JEFFRY F. SCHOENBAUM Director 1/30/97
- ------------------------ ------------------
Jeffry F. Schoenbaum
/s/ B. FRANKLIN SKINNER Director 1/30/97
- ------------------------ ------------------
B. Franklin Skinner
/s/ CAL TURNER, JR. Director 1/30/97
- ------------------------ ------------------
Cal Turner, Jr.
II-10
<PAGE> 23
EXHIBIT INDEX
Number Description
2 Plan of Tax-Free Reorganization Under Section 368(a)(1)(C) of the
Internal Revenue Code and Agreement, dated March 15, 1996, filed as
Exhibit 2 to the Company's current report on Form 8-K filed with the
Commission on March 20, 1996, and incorporated herein by this
reference, as amended by Amendment No. 1, dated June 14, 1996, filed
as Exhibit 2.2 to the Company's Quarterly Report on Form 10-Q for the
quarter ended May 12, 1996, and incorporated herein by this reference,
and Amendment No. 2, dated July 18, 1996, and Amendment No. 3, dated
August 21, 1996, filed as Exhibit 2.3 to the Company's Current Report
on Form 8-K filed with the Commission on September 11, 1996, and
incorporated herein by this reference.
4.1 Charter of Shoney's, Inc., as amended, filed as Exhibit 4.1 to the
Company's Registration Statement on Form S-8 (File No. 333-11715)
filed with the Commission effective September 11, 1996, and
incorporated herein by this reference.
4.2 Amended and Restated Bylaws of Shoney's, Inc., filed as Exhibits 3(ii)
and 4.2 to the Company'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. (the "Company") and Harris Trust and Savings
Bank, as Rights Agent, filed as Exhibit 4 to the Company'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.
(the "Company") and Harris Trust and Savings Bank, as Rights Agent,
filed as Exhibit 4 to the Company'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.
(the "Company") and Harris Trust and Savings Bank, as Rights Agent,
filed as Exhibit 4.5 to the Company'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.
4.6 Indenture dated as of April 1, 1989 between the Company and Sovran
Bank/Central South, as Trustee relating to $201,250,000 in
principal amount of liquid yield option notes due 2004, filed as
Exhibit 4.8 to Amendment No. 1 to the Company's Registration Statement
on Form S-3 filed with the Commission on April 3, 1989 (No. 33-27571),
and incorporated herein by this reference.
4.7 Revolving Credit Agreement dated as of July 13, 1988 between the
Company and First American National Bank, filed as Exhibit 4.1 and
19.1 to the Company's Current Report on Form 8-K filed with the
Commission on December 3, 1991, and incorporated herein by this
reference.
4.8 Modification Agreement No. 1 dated as of March 5, 1991 to Revolving
Credit Agreement,
<PAGE> 24
dated as of July 13, 1988 between the Company and First American
National Bank, filed as Exhibit 4.2 and 19.2 to the Company's Current
Report on Form 8-K filed with the Commission on December 3, 1991, and
incorporated herein by this reference.
4.9 Alternative Rate Agreement dated as of June 4, 1992 supplementing that
certain Revolving Credit Agreement dated as of July 13, 1988 between
the Company and First American National Bank, filed as Exhibit 4.36
and 10.29 to Post Effective Amendment No. 5 to the Company's
Registration Statement on Form S-8 (File No. 2-64257) filed with the
Commission on January 25, 1993, and incorporated herein by this
reference.
4.10 Note Issuance Agreement, dated as of October 1, 1989, among the
Company, Sovran Bank, N.A., as Note Agent and Placement Agent and
Sovran Bank / Central South, as Escrow Agent, filed as Exhibit 19.5
and 28.3 to the Company's Current Report on Form 8-K filed with the
Commission on December 3, 1991, and incorporated herein by this
reference.
4.11 Reimbursement Agreement, dated as of October 1, 1989, together with
the Standby Note relating thereto, among the Company, Sovran Bank /
Central South, Long Term Credit Bank of Japan, Limited, New York
Branch, Kredeitbank, N.V., New York Branch and Sovran Bank / Central
South, as Agent, filed as Exhibit 19.6 and 28.4 to the Company's
Current Report on Form 8-K filed with the Commission on December 3,
1991, and incorporated herein by this reference.
4.12 Modification Agreement No. 1 dated as of July 21, 1993 to
Reimbursement Agreement, dated as of October 1, 1989, together with
the Standby Note relating thereto, among the Company, Sovran Bank /
Central South, Long Term Credit Bank of Japan, Limited, New York
Branch, Kredeitbank, N.V., New York Branch and Sovran Bank / Central
South, as Agent, filed as Exhibit 4.4 to the Company's Quarterly
Report on Form 10-Q for the quarter ended August 1, 1993 filed with
the Commission on September 15, 1993, and incorporated herein by this
reference.
4.13 Modification Agreement No. 2 dated as of June 8, 1994 to Reimbursement
Agreement, dated as of October 1, 1989, together with the Standby Note
relating thereto, among the Company, NationsBank of Tennessee, N.A.
(formerly Sovran Bank / Central South), Long Term Credit Bank of
Japan, Limited, New York Branch, Kredeitbank, N.V., New York Branch
and NationsBank of Tennessee, N.A., as Agent, filed as Exhibit 4.30 to
the Company's Annual Report on Form 10-K for the fiscal year ended
October 30, 1994 filed with the Commission on January 30, 1995, and
incorporated herein by this reference.
4.14 Modification Agreement No. 3 dated as of August 21, 1996 to
Reimbursement Agreement dated as of October 1, 1989, together with the
Standby Note relating thereto, among the Company, NationsBank of
Tennessee, N.A. (formerly Sovran Bank / Central South), Long Term
Credit Bank of Japan, Limited, New York Branch, Kredeitbank, N.V., New
York Branch and NationsBank of Tennessee, N.A., as Agent, filed as
Exhibit 4.14 to the Company's Quarterly Report on Form 10-Q for the
quarter ended August 4, 1996 filed with the Commission on September
17, 1996, and incorporated herein by this reference.
4.15 Note Issuance Agreement, dated as of October 1, 1990, among the
Company, Sovran Bank, N.A., as Note Agent and Placement Agent and
Sovran Bank / Central South, as Escrow Agent, filed as Exhibit 19.7
and 28.5 to the Company's Current Report on Form 8-K filed with the
Commission on December 3, 1991, and incorporated herein by this
reference.
4.16 Reimbursement Agreement, dated as of October 1, 1990, together with
the Standby Note
<PAGE> 25
relating thereto, between the Company and Sovran Bank / Central South,
filed as Exhibit 19.8 and 28.6 to the Company's Current Report on Form
8-K filed with the Commission on December 3, 1991, and incorporated
herein by this reference.
4.17 Modification Agreement No. 1 dated as of July 21, 1993 to
Reimbursement Agreement, dated as of October 1, 1990, together with
the Standby Note relating thereto, between the Company and Sovran Bank
/ Central South, filed as Exhibit 4.5 to the Company's Quarterly
Report on Form 10-Q for the quarter ended August 1, 1993 filed with
the Commission on September 15, 1993, and incorporated herein by this
reference.
4.18 Modification Agreement No. 2 dated as of April 1, 1994 to
Reimbursement Agreement, dated as of October 1, 1990, together with
the Standby Note relating thereto, between the Company and NationsBank
of Tennessee, N.A. (formerly Sovran Bank / Central South), filed as
Exhibit 4.34 to the Company's Annual Report on Form 10-K for the
fiscal year ended October 30, 1994 filed with the Commission on
January 30, 1995, and incorporated herein by this reference.
4.19 Amended and Restated Note Issuance Agreement, dated as of November
1, 1993, among the Company, NationsBank of Virginia, N.A., as Note
Agent and Placement Agent and NationsBank of Tennessee, as Escrow
Agent, filed as Exhibit 4.36 to the Company's Annual Report on Form
10-K for the fiscal year ended October 31, 1993 filed with the
Commission on January 31, 1994, and incorporated herein by this
reference.
4.20 Reimbursement Agreement, dated as of October 1, 1991, together with
the Standby Note relating thereto, between the Company and National
Bank of Canada, New York Branch, filed as Exhibit 28.10 to the
Company's Current Report on Form 8-K filed with the Commission on
December 3, 1991, and incorporated herein by this reference.
4.21 Assignment, Assumption and Modification Agreement dated as of November
4, 1993 relating to Reimbursement Agreement, dated as of October 1,
1991, among the Company, NationsBank of Georgia, N.A. and National
Bank of Canada, New York Branch, filed as Exhibit 4.38 to the
Company's Annual Report on Form 10-K for the fiscal year ended October
31, 1993 filed with the Commission on January 31, 1994, and
incorporated herein by this reference.
4.22 Loan Agreement dated as of September 24, 1992 between the Company and
CIBC Inc., filed as Exhibit 4.43 and 10.36 to Post Effective Amendment
No. 5 to the Company's Registration Statement on Form S-8 (File No.
2-64257) filed with the Commission on January 25, 1993, and
incorporated herein by this reference.
4.23 Modification Agreement No. 1 dated as of October 25, 1992 to Loan
Agreement dated as of September 24, 1992 between the Company and CIBC
Inc., filed as Exhibit 4.44 and 10.37 to Post Effective Amendment No.
5 to the Company's Registration Statement on Form S-8 (File No.
2-64257) filed with the Commission on January 25, 1993, and
incorporated herein by this reference.
4.24 Modification Agreement No. 2 dated as of July 21, 1993 to Loan
Agreement dated as of September 24, 1992 between the Company and CIBC
Inc., filed as Exhibit 4.6 to the Company's Quarterly Report on Form
10-Q for the quarter ended August 1, 1993 filed with the Commission on
September 15, 1993, and incorporated herein by this reference.
4.25 Modification Agreement No. 3 dated as of January 23, 1997 to Loan
Agreement dated as of
<PAGE> 26
September 24, 1992 between the Company and CIBC Inc., filed as Exhibit
4.25 to the Company's Annual Report on Form 10-K for the fiscal year
ended October 27, 1996 filed with the Commission on January 27, 1997,
and incorporated herein by this reference.
4.26 Loan Agreement dated as of April 21, 1993 between the Company and
NationsBank of Tennessee, N.A., filed as Exhibit 4 to the Company's
Quarterly Report on Form 10-Q for the quarter ended May 9, 1993 filed
with the Commission on June 23, 1993, and incorporated herein by this
reference.
4.27 Modification Agreement No. 1 dated as of July 21, 1993 to Loan
Agreement dated as of April 21, 1993 between the Company and
NationsBank of Tennessee, N.A., filed as Exhibit 4.7 to the Company's
Quarterly Report on Form 10-Q for the quarter ended August 1, 1993
filed with the Commission on September 15, 1993, and incorporated
herein by this reference.
4.28 Loan Agreement dated as of December 1, 1994 between the Company and
NationsBank of Tennessee, N.A., filed as Exhibit 4.43 to the Company's
Annual Report on Form 10-K for the fiscal year ended October 30, 1994
filed with the Commission on January 30, 1995, and incorporated herein
by this reference.
4.29 U.S. $270,000,000 Amended and Restated Reducing Revolving Credit
Agreement, dated as of July 21, 1993, as amended and restated as of
May 3, 1996, among Shoney's, Inc., as the Borrower, CIBC Inc., acting
through its Atlanta Office and various other financial institutions
now or hereafter parties hereto, as the Lenders, and Canadian Imperial
Bank of Commerce acting through its New York Agency, as the Agent for
the Lenders, filed as Exhibit 4.2 to the Company's Current Report on
Form 8-K filed with the Commission on May 15, 1996, and incorporated
herein by this reference.
4.30 Modification Agreement No. 1 dated as of October 24, 1996 to U.S.
$270,000,000 Amended and Restated Reducing Revolving Credit Agreement,
dated as of July 21, 1993, as amended and restated as of May 3, 1996,
among Shoney's, Inc., as the Borrower, CIBC Inc., acting through its
Atlanta Office and various other financial institutions now or
hereafter parties hereto, as the Lenders, and Canadian Imperial Bank
of Commerce acting through its New York Agency, as the Agent for the
Lenders, filed as Exhibit 4.30 to the Company's Annual Report on Form
10-K for the fiscal year ended October 27, 1996 filed with the
Commission on January 27, 1997, and incorporated herein by this
reference.
4.31 Modification Agreement No. 2 dated as of January 9, 1997 to U.S.
$270,000,000 Amended and Restated Reducing Revolving Credit Agreement,
dated as of July 21, 1993, as amended and restated as of May 3, 1996,
among Shoney's, Inc., as the Borrower, CIBC Inc., acting through its
Atlanta Office and various other financial institutions now or
hereafter parties hereto, as the Lenders, and Canadian Imperial Bank
of Commerce acting through its New York Agency, as the Agent for the
Lenders, filed as Exhibit 4.31 to the Company's Annual Report on Form
10-K for the fiscal year ended October 27, 1996 filed with the
Commission on January 27, 1997, and incorporated herein by this
reference.
4.32 U.S. $100,000,000 Bridge Loan Credit Agreement, dated as of May 3,
1996, among Shoney's, Inc., as the Borrower, Canadian Imperial Bank of
Commerce, and various other financial institutions now or hereafter
parties hereto, as the Lenders, and Canadian Imperial Bank of Commerce
acting through its New York Agency, as the Agent for the Lenders,
filed as Exhibit 4.1 to the Company's Current Report on Form 8-K filed
with the Commission on May 15, 1996, and incorporated herein by this
reference.
4.33 Modification Agreement No. 1 dated as of October 24, 1996 to U.S.
$100,000,000 Bridge
<PAGE> 27
Loan Credit Agreement, dated as of May 3, 1996, among Shoney's, Inc.,
as the Borrower, Canadian Imperial Bank of Commerce, and various other
financial institutions now or hereafter parties hereto, as the
Lenders, and Canadian Imperial Bank of Commerce acting through its New
York Agency, as the Agent for the Lenders, filed as Exhibit 4.33 to
the Company's Annual Report on Form 10-K for the fiscal year ended
October 27, 1996 filed with the Commission on January 27, 1997, and
incorporated herein by this reference.
4.34 Modification Agreement No. 2 dated as of January 9, 1997 to U.S.
$100,000,000 Bridge Loan Credit Agreement, dated as of May 3, 1996,
among Shoney's, Inc., as the Borrower, Canadian Imperial Bank of
Commerce, and various other financial institutions now or hereafter
parties hereto, as the Lenders, and Canadian Imperial Bank of Commerce
acting through its New York Agency, as the Agent for the Lenders,
filed as Exhibit 4.34 to the Company's Annual Report on Form 10-K for
the fiscal year ended October 27, 1996 filed with the Commission on
January 27, 1997, and incorporated herein by this reference.
4.35 Indenture, dated as of July 15, 1992, among TPI Enterprises, Inc., TPI
Restaurants, Inc., as Guarantor, and NationsBank of Tennessee (now The
Bank of New York, as successor trustee), as trustee, relating to 8.25%
Convertible Subordinated Debentures due 2002, filed as Exhibit 10 (a)
of the Current Report on Form 8-K of TPI Restaurants, Inc. dated July
29, 1992 (Commission File No. 0-12312) and incorporated herein by this
reference.
4.36 First Supplemental Indenture, dated as of September 9, 1996, among TPI
Enterprises, Inc., TPI Restaurants, Inc., as Guarantor, The Bank of
New York, as trustee, and Shoney's, Inc., relating to 8.25%
Convertible Subordinated Debentures due 2002, filed as Exhibit 4.2 to
the Company's Current Report on Form 8-K filed with the Commission on
September 11, 1996, and incorporated herein by this reference.
5 Opinion of Wyatt, Tarrant & Combs regarding legality.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Wyatt, Tarrant & Combs (included in Exhibit 5).
<PAGE> 1
EXHIBIT 5
[Letterhead of Wyatt, Tarrant & Combs]
502 562-7292
January 31, 1997
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 265,934 shares of the Company's common
stock (the "Shares"), on the Registration Statement on Form S-3 (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. 1996
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.
We are members of the Bars of the State of Tennesee and the
Commonwealth of Kentucky and do not purport to be experts on the laws of any
jurisdiction other than the State of Tennessee, the Commonwealth of Kentucky
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.
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
----------------------------------
<PAGE> 1
EXHIBIT 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 333- ) and related Prospectus of
Shoney's, Inc. for the registration of 265,934 shares of its common stock
pertaining to the Shoney's, Inc. 1996 Stock Option Plan and to the
incorporation by reference therein of our report dated January 24, 1997, 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 27, 1996,
filed with the Securities and Exchange Commission.
Nashville, Tennessee
January 24, 1997
