As filed with the Securities and Exchange Commission on August 7, 1997
REGISTRATION NO. 333-
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BUCKHEAD AMERICA CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 58-2023732
_______________________________ ______________________
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
4243 DUNWOODY CLUB DRIVE, SUITE 200, ATLANTA, GEORGIA 30350
(Address of Principal Executive Offices) (Zip Code)
BUCKHEAD AMERICA CORPORATION 1997 EMPLOYEE STOCK OPTION PLAN
(Full title of the plan)
Douglas C. Collins, CEO
Buckhead America Corporation
4243 Dunwoody Club Drive
Suite 200
ATLANTA, GEORGIA 30350
_________________________________
(Name and address of agent for service)
(770) 393-2662
(Telephone number, including area code, of agent for service)
Copy to:
B. Joseph Alley, Jr., Esq.
Arnall Golden & Gregory
2800 One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3450
(404) 873-8500
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
Proposed
Proposed maximum Amount of
Title of securities Amount to be maximum offering aggregate registration
to be registered registered price per share offering price fee*
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Common Stock, 80,000 Shares $8.50 $680,000.00 $206.06
$.01 par value
- -------------------------------------------------------------------------------------------
</TABLE>
* Calculated pursuant to Rules 457(c) and 457(h), based upon the average of
the high and low prices reported for the Common Stock on July 31, 1997 as
quoted on The Nasdaq Stock Market.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in the
Registration Statement:
(a) The Registrant's Annual Report on Form 10-KSB, as amended, filed
with respect to the Registrant's fiscal year ended December 31, 1996.
(b) The Quarterly Report on Form 10-QSB, as amended, filed with respect
to the Registrant's quarterly period ended March 31, 1996.
(c) The Current Reports on Form 8-K and Form 8-K/A filed April 25,
1997, May 22, 1997, May 29, 1997, June 9, 1997 and July 22, 1997.
(d) The description of the Registrant's Common Stock, as such
description is set forth in the Registrant's registration statement filed under
Section 12 of the Securities Exchange Act of 1934 effected by filing of Form
10-SB, including any amendment or report filed for the purpose of updating such
description.
(e) All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment to this registration statement
which indicates that all of the shares of Common Stock offered have been sold or
which deregisters all of such shares then remaining unsold, shall be deemed to
be incorporated by reference in this registration statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this registration statement
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 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.
The Registrant is a Delaware corporation. The following summary is
qualified in its entirety by reference to the complete text of the Delaware
General Corporation Law (the "DGCL"), the Registrant's Restated Certificate of
Incorporation and the Registrant's Bylaws, as amended.
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Section 145 of the DGCL empowers a Delaware corporation to indemnify
any person who was or is, or is threatened to be made, a party to any threatened
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation) by reason of the fact that such person is or was a director,
officer, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such person had
no reasonable cause to believe his conduct was unlawful. A Delaware corporation
may indemnify such persons against expenses (including attorneys' fees) in
actions brought by or in the right of the corporation to procure a judgment in
its favor under the same conditions, except that no indemnification is permitted
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and to the extent the Court of
Chancery of the State of Delaware or the court in which such action or suit was
brought shall determine upon application that, in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnify for such
expenses as the Court of Chancery or other such court shall deem proper. To the
extent such person has been successful on the merits or otherwise in defense of
any action referred to above, or in defense of any claim, issue or matter
therein, the corporation must indemnify such person against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith. The indemnification and advancement of expenses provided for in, or
granted pursuant to, Section 145 is not exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
any by-law, agreement, vote of stockholders or disinterested directors or
otherwise. Section 145 also provides that a corporation may maintain insurance
against liabilities for which indemnification is not expressly provided by the
statute.
Article VI of the Company's Certificate of Incorporation and Article
VIII, Section 3 of the Company's By-laws provide for indemnification of
directors and officers from any liability that such person reasonably incurs
with respect to any threatened, pending or completed action, suit or proceeding
(whether civil, criminal, administrative, or investigative) by reason of his
position as director or officer of the Company, if such person acted in good
faith and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the Company. With respect to a criminal action or proceeding,
however, such person must also have had reasonable cause to believe that his
action was lawful. If such person is found liable to the Company in an action or
proceeding by or in the right of the Company itself, such person may be
indemnified only if the court specifically approves such indemnification. The
Company has obtained directors' and officers' liabilitiy insurance that would
cover up to $15 million in indemnification claims.
In addition, Registrant's Restated Certificate of Incorporation, as
permitted by Section 102(b) of the DGCL, limits directors' liability to the
Registrant and its stockholders by eliminating liability in damages for breach
of a fiduciary duty. Article VII of Registrant's Restated Certificate of
Incorporation provides that neither the Registrant nor its stockholders may
recover damages from its directors for breach of their fiduciary duties in the
performance of their duties as directors of the Registrant. As limited by
Section 102(b), this provision cannot, however, have the effect of indemnifying
any director of the Registrant in the case of liability (i) for a breach of the
director's duty of loyalty, (ii) for acts or omissions not in good faith or
which involve intentional misconduct
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<PAGE>
or a knowing violation of law, (iii) for unlawful payments of dividends or
unlawful stock repurchases or redemptions as provided in Section 174 of the
DGCL, or (iv) for any transactions for which the director derived an improper
personal benefit.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "1933 Act"), may be permitted to directors,
officers or persons controlling the Company pursuant to the foregoing provision
of the DGCL and the Company's Restated Certificate of Incorporation and Bylaws,
the Company has been informed that indemnification is considered by the
Securities and Exchange Commission to be against public policy and therefore
unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NO. EXHIBIT
_______ _______
4 Mortgage note Payable dated as of November 7, 1996 made by Heritage Inn
Associates, LP as Maker, to Bloomfield Acceptance Company, LLC
(Incorporated by reference to Exhibit 4 (ii) to the Registrant's Annual
Report on Form 10-KSB for the fiscal year ended December 31, 1996)
5* Opinion of Arnall Golden & Gregory LLP regarding legality
23.1* Consent of Arnall Golden & Gregory LLP (included as part of Exhibit 5
hereto)
23.2* Consent of KPMG Peat Marwick LLP
23.3* Consent of Ernst & Young LLP
- --------
* Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act 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,
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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 paragraph (a)(1)(i) and (a)(1)(ii)
shall not apply if 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 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 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.
(c) 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 provisions described in Item 6 above,
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 proceedings) 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.
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<PAGE>
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 Atlanta, State of Georgia on July 31, 1997
BUCKHEAD AMERICA CORPORATION
By: /S/ DOUGLAS C. COLLINS
_________________________
Douglas C. Collins,
PRESIDENT AND
CHIEF EXECUTIVE OFFICER
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Douglas C. Collins and Robert B. Lee 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 to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
PRINCIPAL EXECUTIVE, FINANCIAL & ACCOUNTING OFFICERS AND DIRECTORS:
<TABLE>
<CAPTION>
NAME TITLE DATE
____ _____ ____
<S> <C> <C> <C>
/S/ Douglas C. Collins
______________________ President, Chief Executive Officer July 31, 1997
Douglas C. Collins and Director (Principal Executive
Officer)
/S/ Robert B. Lee
______________________ Senior Vice President, Chief July 31, 1997
Robert B. Lee Financial Officer and Director
(Principal Financial and
Accounting Officer)
/S/ Robert M. Miller
______________________ Director July 31, 1997
Robert M. Miller
______________________ Director July __, 1997
William K. Stern
______________________ Director July __, 1997
Steven A. Van Dyke
</TABLE>
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<PAGE>
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
_______ ___________
4 Mortgage Note Payable dated as of November 7, 1996 made by Heritage Inn
Associates, LP as Maker, to Bloomfield Acceptance Company, LLC
(Incorporated by reference to Exhibit 4 (ii) to the Registrant's Annual
Report on Form 10-KSB for the fiscal year ended December 31, 1996)
5* Opinion of Arnall Golden & Gregory LLP regarding legality
23.1* Consent of Arnall Golden & Gregory LLP (included as part of Exhibit 5
hereto)
23.2* Consent of KPMG Peat Marwick LLP
23.3* Consent of Ernst & Young LLP
_________________________
* Filed herewith.
ARNALL GOLDEN & GREGORY, LLP
2800 One Atlantic Center
1201 West Peachtree Street, N.W.
Atlanta, Georgia 30309-3450
(404) 873-8500
(404) 873-8501
August 7, 1997
Buckhead America Corporation
4243 Dunwoody Club Drive, Suite 200
Atlanta, Georgia 30350
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
This opinion is rendered in connection with the proposed issue and sale
by Buckhead America Corporation, a Delaware corporation (the "Company"), of up
to 80,000 shares of the Company's Common Stock, $.01 par value (the "Shares"),
upon the terms and conditions set forth in the Registration Statement on Form
S-8 (the "Registration Statement") filed by the Company with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act"),
pursuant to the Company's 1997 Employee Stock Option Plan (the "Plan"). We have
acted as counsel for the Company in connection with the issuance and sale of the
Shares by the Company.
In rendering the opinion contained herein, we have relied in part upon
examination of the Company's corporate records, documents, certificates and
other instruments and the examination of such questions of law as we have
considered necessary or appropriate for the purpose of this opinion. Based upon
the foregoing, we are of the opinion that the Shares have been duly and validly
authorized, and when sold in the manner contemplated by the Plan, upon receipt
by the Company of payment in full therefor as provided therein and upon issuance
pursuant to a current prospectus in conformity with the Act, they will be
legally issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement. This consent is not to be construed as an admission that
we are a party whose consent is required to be filed with the Registration
Statement under the provisions of the Act.
Sincerely,
ARNALL GOLDEN & GREGORY, LLP
ARNALL GOLDEN & GREGORY, LLP
ACCOUNTANTS' CONSENT
The Board of Directors
Buckhead America Corporation:
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Buckhead America Corporation of our report dated February 21 1997,
except for note 13, which is dated as of March 13, 1997 with respect to the
consolidated balance sheets of Buckhead America Corporation and subsidiaries as
of December 31, 1996 and 1995, and the related consolidated statements of
income, shareholders' equity and cash flows for the years then ended, which
report appears in the December 31, 1996 Annual Report on Form 10-KSB of Buckhead
America Corporation.
KPMG PEAT MARWICK LLP
KPMG PEAT MARWICK LLP
Atlanta, Georgia
August 4, 1997
ACCOUNTANTS' CONSENT
The Board of Directors
Buckhead America Corporation:
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Buckhead America Corporation of our report dated August 29, 1996,
with respect to the financial statements of The Lodge Keeper Group, Inc.,
included in Buckhead America Corporation Form 8-K/A (Amendment No. 1) dated May
8, 1997, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
ERNST & YOUNG LLP
Columbus, Ohio
August 6, 1997
