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As filed with the Securities and Exchange Commission on September 23, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SHONEY'S, INC.
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(Exact name of registrant as specified in its charter)
TENNESSEE
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(State or other jurisdiction of incorporation or organization)
62-0799798
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(I.R.S. employer identification no.)
1727 ELM HILL PIKE
NASHVILLE, TENNESSEE 37210
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(Address of principal executive offices)
SHONEY'S, INC.
1998 STOCK PLAN
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(Full title of the plan)
F.E. MCDANIEL, JR.
1727 ELM HILL PIKE
NASHVILLE, TENNESSEE 37210
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(Name and address of agent for service)
(615) 231-2253
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM OFFERING MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE PRICE PER SHARE(*) AGGREGATE AMOUNT OF
REGISTERED REGISTERED OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
COMMON STOCK, PAR
VALUE $1.00 PER SHARE, 2,000,000 SHARES $2.00 $4,000,000 $1,180
AND ASSOCIATED RIGHTS
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* The offering price is estimated solely for the purpose of determining the
amount of the registration fee in accordance with Rule 457(c) under the
Securities Act of 1933 and is based on the average of the high and low price
per share of the Registrant's Common Stock as reported on The New York Stock
Exchange on September 21, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by Shoney's, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "Commission")
are hereby incorporated by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
October 26, 1997;
(2) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended February 15, 1998;
(3) The Registrant's Current Report on Form 8-K, dated April 20, 1998;
(4) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended May 10, 1998;
(5) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended August 2, 1998;
(6) The description of the Registrant's Common Stock, par value $1.00 per
share (the "Common Stock"), contained in the Registrant's Registration
Statement on Form 10, filed with the Commission on February 27, 1970,
including all amendments and reports filed for the purpose of updating
such description prior to the termination of the offering of the
Common Stock offered hereby; and
(7) The description of the Registrant's Rights to Purchase Common Stock
contained in the Registrant's Registration Statement on Form 8-A filed
with the Commission on June 10, 1994, including all amendments and
reports filed for the purpose of updating such description prior to
the termination of the offering of the Common Stock offered hereby.
All documents and reports filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), after the date hereof and prior to the filing of a
post-effective amendment to this Registration Statement that indicates that all
securities offered hereby have been sold or that deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of filing of such documents. Any
statements contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or replaced for purposes hereof
to the extent that a statement contained herein (or in any other subsequently
filed document which also is incorporated or deemed to be incorporated by
reference herein) modifies or replaces such statement. Any statement so
modified or replaced shall not be deemed, except as so modified or replaced, to
constitute a part hereof.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Tennessee Business Corporation Act ("TBCA") provides that a
corporation may indemnify any director or officer against liability incurred in
connection with a proceeding if (i) the director or officer acted in good
faith, (ii) the director or officer reasonably believed, in the case of conduct
in his or her official capacity with the corporation, that such conduct was in
the corporation's best interest, or, in all other cases, that his or her
conduct was not opposed to the best interest of the corporation, and (iii) in
connection with any criminal proceeding, the director or officer had no
reasonable cause to believe that his or her conduct was unlawful. In actions
brought by or in the right of the corporation, however, the TBCA provides that
no indemnification may be made if the director or officer is adjudged to be
liable to the corporation. Similarly, the TBCA prohibits indemnification in
connection with any proceeding charging improper personal benefit to a director
or officer, or if such director or officer is adjudged liable on the basis that
a personal benefit was improperly received. In cases where the director or
officer is wholly successful, on the merits or otherwise, in the defense of any
proceeding instigated because of his or her status as a director or officer of
a corporation, the TBCA mandates that the corporation indemnify the director or
officer against reasonable expenses incurred in the proceeding. Notwithstanding
the foregoing, the TBCA provides that a court of competent jurisdiction, upon
application, may order that a director or officer be indemnified for reasonable
expenses if, in consideration of all relevant circumstances, the court
determines that such individual is fairly and reasonably entitled to
indemnification, whether or not the standard of conduct set forth above was
met.
The Registrant's Charter and Bylaws provide that the Registrant will
indemnify from liability, and advance expenses to, any present or former
director or officer of the Registrant to the fullest extent allowed by the
TBCA, as amended from time to time, or any subsequent law, rule, or regulation
adopted in lieu thereof. Additionally, the Charter provides that no director of
the Registrant will be personally liable to the Registrant or its shareholders
for monetary damages for breach of any fiduciary duty except for liability
arising from (i) any breach of a director's duty of loyalty to the Company or
its shareholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, or (iii) any unlawful
distributions.
The Company has purchased a directors and officers insurance policy
providing for $50.0 million in coverage for certain liabilities of the
Company's directors and officers. The policy expires October 30, 1998.
Item 7. Exemption from Registration Claimed
Not applicable.
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Item 8. Exhibits
See Exhibit Index (page II-7).
Item 9. Undertakings.
A. The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of 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;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
B. The Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the
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securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8, and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Nashville, State of Tennessee, on the 22nd day
of September, 1998.
SHONEY'S, INC.
By: /s/ J. Michael Bodnar
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J. Michael Bodnar
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears
below hereby constitutes and appoints J. Michael Bodnar and F.E. McDaniel, Jr.,
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 to this
Registration Statement, and to file the same, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
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/s/ J. Michael Bodnar President, Chief Executive September 22, 1998
- -------------------------------------- Officer and Director
J. Michael Bodnar (Principal Executive Officer)
/s/ V. Michael Payne Senior Vice President and September 22, 1998
- -------------------------------------- Controller (Principal
V. Michael Payne Financial and Accounting
Officer)
/s/ C. Stephen Lynn
- -------------------------------------- Director September 22, 1998
C. Stephen Lynn
/s/ Jeffry F. Schoenbaum
- -------------------------------------- Director September 22, 1998
Jeffry F. Schoenbaum
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Signature Title Date
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/s/ Raymond D.Schoenbaum Director September 22, 1998
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Raymond D. Schoenbaum
/s/ William A. Schwartz
- -------------------------------------- Director September 22, 1998
William A. Schwartz
/s/ Carroll D. Shanks
- -------------------------------------- Director September 22, 1998
Carroll D. Shanks
/s/ Felker W. Ward, Jr.
- -------------------------------------- Director September 22, 1998
Felker W. Ward, Jr.
/s/ William M. Wilson
- -------------------------------------- Director September 22, 1998
William M. Wilson
/s/ James D. Yancy
- -------------------------------------- Director September 22, 1998
James D. Yancey
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EXHIBIT INDEX
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Exhibit Number Description
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4.1 Charter of Shoney's, Inc., as amended (incorporated by
reference to the Registrant's Registration Statement
on Form S- 8 (File No. 333-11715))
4.2 Restated Bylaws of Shoney's, Inc. (incorporated by
reference to the Registrant's Annual Report on Form
10-K for the fiscal year ended October 26, 1997)
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 (incorporated by
reference to the Registrant's Current Report on Form
8-K filed with the Commission on June 9, 1994), as
amended by Amendment No. 1 , dated as of April 18,
1995 (incorporated by reference to the Registrant's
Current Report on Form 8-K filed with the Commission
on May 4, 1995), as amended by Amendment No. 2, dated
as of June 14, 1996 (incorporated by reference to the
Registrant's Current Report on Form 8-K filed with
the Commission on May 12, 1996), and as amended by
Amendment No. 3, dated as of April 20, 1998
(incorporated by reference to the Registrant's
Current Report on Form 8-K filed with the Commission
on April 20, 1998)
4.4 Shoney's, Inc. 1998 Stock Plan (incorporated by
reference to the Registrant's Quarterly Report on
Form 10-Q for the fiscal quarter ended May 10, 1998)
5 Opinion of Counsel
23 Consent of Ernst & Young LLP
24 Power of Attorney (included on Page II-5)
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[SHONEY'S, INC. LETTERHEAD]
September 23, 1998
The Board of Directors of Shoney's, Inc.
1727 Elm Hill Pike
Nashville, TN 37210
Re: Registration Statement on Form S-8
Gentlemen:
I am Secretary and General Counsel of Shoney's, Inc. (the "Corporation"). In
that capacity, I have acted as counsel for the Corporation in connection with
the preparation of a Registration Statement on Form S-8 (the "Registration
Statement") relating to the Company's 1998 Stock Plan (the "Plan"), filed by
the Company with the Securities and Exchange Commission covering 2,000,000
shares of the Company's common stock (the "Common Stock") issuable pursuant to
the Plan. In so acting, I, or attorneys under my supervision, have examined and
relied upon such records, documents, and other instruments as in my judgment
are necessary or appropriate in order to express the opinions hereinafter set
forth and have assumed the genuineness of all signatures, the authenticity of
all documents submitted to me as originals, and the conformity to the original
documents of all documents submitted to me as certified or photostatic copies.
On the basis of the foregoing, I am of the opinion that the Common
Stock, when issued pursuant to and in accordance with the Plan, will be duly
and validly issued, fully paid, and nonassessable.
Sincerely,
/s/ F.E. McDaniel, Jr.
F.E. McDaniel, Jr.
Secretary and General Counsel
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Exhibit 23
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-8 and the related Prospectus pertaining to the Shoney's, Inc. 1998 Stock
Plan of our report dated December 18, 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 26, 1997, filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Nashville, Tennessee
September 18, 1998
