As filed with the Securities and Exchange Commission on January 9, 1996
Registration No. 33-
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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
FRANCHISE FINANCE CORPORATION OF AMERICA
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(Exact name of registrant as specified in its charter)
DELAWARE 84-0736091
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
17207 North Perimeter Drive
Scottsdale, Arizona 85255
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(Address of principal executive offices) (Zip code)
FRANCHISE FINANCE CORPORATION OF AMERICA
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1995 STOCK OPTION AND INCENTIVE PLAN
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(Full title of the plan)
Morton Fleischer
President and Chief Executive Officer
Franchise Finance Corporation of America
17207 North Perimeter Drive (602) 585-4500
Scottsdale, Arizona 85255 ---------------------------------
- ---------------------------------------- (Telephone number, including area
(Name and address of agent for service) code, of agent for service)
Copies to:
Paul E. Belitz, Esq.
Kutak Rock
717 17th Street, Suite 2900
Denver, Colorado 80202-3329
(303) 297-2400
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Calculation of Registration Fee
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<S> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered Per Share(1) Offering Price(1) Fee
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Common Stock,
$.01 par value 3,018,804 Shares $ 22 3/8 $ 67,545,739.50 $ 23,291.63
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended, based on
the average of the high and low prices of the Registrant's Common Stock on
January 8, 1996.
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This Registration Statement shall become effective upon filing in accordance
with Rule 462 under the Securities Act of 1933, as amended.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, previously filed with the Securities and
Exchange Commission by Franchise Finance Corporation of America (the
"Registrant") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated herein by reference:
(a) the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1994;
(b) all other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal
year covered by the Annual Report on Form 10-K referred to in (a)
above;
(c) the description of the Registrant's common stock contained
in the Registrant's Registration Statement on Form 8-A filed with the
Securities and Exchange Commission on June 28, 1994.
Each document filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
that indicates that all securities offered herein have been sold or that
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the respective date of filing such documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any subsequently
filed document that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides generally
and in pertinent part that a Delaware corporation may indemnify its directors
and officers against expenses, judgements, fines and settlements actually and
reasonably incurred by them in connection with any civil suit or action, except
actions by or in the right of the corporation, or any administrative or
investigative proceeding if, in connection with the matters in issue, they acted
in good faith and in a manner they reasonably believed to be in, or not opposed
to, the best interests of the corporation, and in connection with any criminal
suit or proceeding, if in connection with the matters in issue, they had no
reasonable cause to believe their conduct was unlawful. Section 145 further
provides that in connection with the defense or settlement of any action by or
in the right of the corporation, a Delaware corporation may indemnify its
directors and officers against expenses actually and reasonably believed to be
in, or not opposed to, the best interests of the corporation. Section 145
permits a Delaware corporation to grant its directors and officers additional
rights of indemnification through bylaw provisions and otherwise and to purchase
indemnity insurance on behalf of its directors and officers.
Article III, Section 13 of the Amended and Restated Bylaws of the
Registrant requires the Registrant to indemnify every person who was or is a
party or is or was threatened to be made a party to any action, suit, or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director or officer of the Registrant or, while
a director or officer of the Registrant, is or was serving at the request of the
Registrant as a director, officer, employee, agent or trustee of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including counsel fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding, to the full extent permitted by applicable
law.
The Registrant's Restated Certificate of Incorporation also provides in
Article Six that directors shall not be liable to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent such exemption or limitation thereof is not permitted under
the Delaware General Corporation Law.
Item 7. Exemption from Registration Claimed.
Not Applicable
Item 8. Exhibits.
The following is a complete list of exhibits filed as part of this
Registration Statement. Exhibit numbers correspond to the numbers in the Exhibit
Table of Item 601 of Regulation S-K.
Exhibit
Number Description
- ------- ------------------------------
4.01(1) Form of Common Stock Certificate
5.01(*) Opinion and Consent of Kutak Rock
23.01 Consent of Counsel is contained in Opinion of
Counsel filed as Exhibit 5.01
23.02(*) Consent of Arthur Andersen LLP
24.01 Powers of Attorney included at page S-2 of this
Registration Statement are incorporated herein by
reference.
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(*) Filed herewith.
(1) Filed as an Exhibit to the Registrant's Registration Statement on Form
S-4, File No. 33-65302 and incorporated herein by reference.
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(a)(l) 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 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; and
(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 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.
(b) 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 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Scottsdale, State of Arizona, on this 9th day
of January, 1996.
FRANCHISE FINANCE CORPORATION OF AMERICA
By: /s/ Morton Fleischer
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Morton Fleischer, President, Chief
Executive Officer and Director
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Morton Fleischer, his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments (including post-effective amendments) to this Registration
Statement on Form S-8 and file the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto such attorney-in-fact and agent 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, to all intents and purposes and as full as they might or
could do in person, hereby ratifying and confirming all that such
attorney-in-fact and agent, or his substitute 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 by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
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<S> <C> <C>
/s/ Morton Fleischer President, Chief Executive January 8, 1996
- ---------------------- Officer and Director
Morton Fleischer
/s/ Robert W. Halliday Chairman of the Board January 8, 1996
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Robert W. Halliday
/s/ John R. Barravecchia Executive Vice President, January 8, 1996
- ----------------------------- Chief Financial Officer and
John R. Barravecchia Treasurer
/s/ Catherine F. Long Vice President, Finance and January 8, 1996
- ----------------------------- Principal Accounting Officer
Catherine F. Long
/s/ Willie R. Barnes Director January 8, 1996
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Willie R. Barnes
/s/ William C. Foxley Director January 8, 1996
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William C. Foxley
/s/ Donald C. Hannah Director January 8, 1996
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Donald C. Hannah
/s/ Louis P. Neeb Director January 8, 1996
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Louis P. Neeb
/s/ Kenneth B. Roath Director January 8, 1996
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Kenneth B. Roath
/s/ Wendell J. Smith Director January 8, 1996
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Wendell J. Smith
/s/ Casey J. Sylla Director January 8, 1996
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Casey J. Sylla
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EXHIBIT 5.01
OPINION AND CONSENT OF KUTAK ROCK
January 9, 1996
Board of Directors
Franchise Finance Corporation of America
17207 North Perimeter Drive
Scottsdale, Arizona 85255
Gentlemen:
We have acted as counsel to Franchise Finance Corporation of America
(the "Company") in connection with the filing of the registration statement on
Form S-8 (the "Registration Statement"), under the Securities Act of 1933, as
amended (the "Act"). The Registration Statement relates to the 3,018,804 shares
of the Company's common stock, $.01 par value per share (the "Common Stock"),
issuable pursuant to the Company's 1995 Stock Option and Incentive Plan (the
"Plan"). In rendering the opinion expressed below, we have reviewed such
matters, documents and law as we have deemed necessary for purposes of this
opinion. Based on and subject to the foregoing, it is our opinion that the
shares of Common Stock, when issued in accordance with the Plan, will be legally
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ KUTAK ROCK
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KUTAK ROCK
EXHIBIT 23.02
CONSENT OF ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 27, 1995
included in Franchise Finance Corporation of America's Form 10-K for the year
ended December 31, 1994 and to all references to our firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
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ARTHUR ANDERSEN LLP
Phoenix, Arizona
January 9, 1996
