As filed with the Securities and Exchange Commission on July 2, 1998
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 1998 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, LLP
2800 One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3450
(404) 873-8500
CALCULATION OF REGISTRATION FEE
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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*
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Common Stock, 90,000 Shares $7.25 $652,500 $192.49
$.01 par value
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* 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 June 30, 1998 as
quoted on The Nasdaq Stock Market.
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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 filed with respect
to the Registrant's fiscal year ended December 31, 1997.
(b) The Registrant's Quarterly Report on Form 10-QSB filed with respect
to the Registrant's quarterly period ended March 31, 1998.
(c) The Registrant's Current Report on Form 8-K filed January 9, 1998.
(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.
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
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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' liability 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 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.
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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
4.1 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)
4.2 Certificate of Designation, Preference and Rights of Series A
Preferred Stock of the Registrant (Incorporated by reference to
Exhibit 3(i)(c) to the Registrant's Quarterly Report on Form
10-QSB for the quarter ended September 30, 1997)
4.3* Form of Stock Certificate
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
24.1* Power of Attorney (included as part of the signature page hereto)
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* 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:
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(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 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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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 June 29, 1998.
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:
Name Title Date
/s/Douglas C. Collins President, Chief Executive Officer June 29, 1998
Douglas C. Collins and Director (Principal Executive
Officer)
/s/Robert B. Lee Senior Vice President, Chief June 29, 1998
Robert B. Lee Financial Officer and Director
(Principal Financial and
Accounting Officer)
/s/Robert M. Miller Director June 29, 1998
Robert M. Miller
/s/William K. Stern Director June 29, 1998
William K. Stern
/s/Steven A. Van Dyke Director June 29, 1998
Steven A. Van Dyke
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EXHIBIT INDEX
Exhibit No. Description
4.1 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)
4.2 Certificate of Designation, Preference and Rights of Series A
Preferred Stock of the Registrant (Incorporated by reference to
Exhibit 3(i)(c) to the Registrant's Quarterly Report on Form 10-
QSB for the quarter ended September 30, 1997)
4.3* Form of Stock Certificate
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
24.1* Power of Attorney (included as part of signature page hereto)
__________________________________
* Filed herewith.
554505.1
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<S> <C>
NUMBER BUCKHEAD AMERICA CORPORATION SHARES
INCORPORATED UNDER THIS CERTIFICATE IS TRANSFERABLE SEE REVERSE FOR
THE LAWS OF THE STATE IN BOSTON, MA OR NEW YORK, NY CERTAIN DEFINITIONS
OF DELAWARE
CUSIP 11835A 10 5
This certifies that
Is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, PAR VALUE $.01 PER SHARE OF
BUCKHEAD AMERICA CORPORATION
(hereinafter called the "Corporation"), transferable upon the books of the
Corporation by the holder hereof in person or by duly authorized attorney upon
surrender of this Certificate properly endorsed.
This certificate is not valid until countersigned by the Transfer
Agent. Witness the seal of the Corporation and the signatures of its
duly authorized officers.
Dated: Countersigned:
STATE STREET BANK
AND TRUST COMPANY
Transfer Agent
By:
Authorized Signature
SECRETARY [BUCKHEAD AMERICA SEAL] PRESIDENT
</TABLE>
564499.1
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This certificate and the shares represented hereby are issued and shall
be held subject to the provisions of the Certificate of Incorporation as amended
of the Corporation (a copy of which is on file with Transfer Agent), to all of
which the holder by acceptance hereof assents.
The Corporation will furnish without charge to each stockholder who so
requests, the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights. Any such request may be made to the Corporation or to the Transfer
Agent.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT - Custodian.......
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act.....................
in common (State)
Additional abbreviations may also be used though not in the above list.
For value received, ___________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF
ASSIGNEE
__________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP
CODE OF ASSIGNEE)
____________________________________________________________
____________________________________________________________
______________________________________________________shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint_______________________________
Attorney to transfer the said stock on the books of the within named
Corporation with full power of substitution in the premises.
Dated________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH
THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
</TABLE>
564499.1
ARNALL GOLDEN & GREGORY, LLP
2800 One Atlantic Center
1201 West Peachtree Street, N.W.
Atlanta, Georgia 30309-3450
(404) 873-8500
(404) 873-8501
July 1, 1998
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 90,000 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 1998 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, assuming such
payment per share is greater than or equal to $.01, 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,
/s/ Arnall Golden & Gregory, LLP
ARNALL GOLDEN & GREGORY, LLP
554505.1
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 27, 1998,
with respect to the consolidated balance sheets of Buckhead America Corporation
and subsidiaries as of December 31, 1997 and 1996, and the related consolidated
statements of income, shareholders' equity and cash flows for the years then
ended, which report appears in the December 31, 1997 Annual Report on Form
10-KSB of Buckhead America Corporation.
/s/ KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Atlanta, Georgia
June 29, 1998
554505.1
