As filed with the Securities and Exchange Commission on June 17, 1999
Registration No. 333-58375
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 1999 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
- --------------------------------------------------------------------------------
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*
- ------------------------------- --------------------- --------------------------
Common Stock, 90,000 Shares $6.00 $540,000 $151.00
$.01 par value
- ------------------------------- --------------------- --------------------------
* 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 11, 1999 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 filed with respect to
the Registrant's fiscal year ended December 31, 1998.
(b) The Registrant's Quarterly Report on Form 10-QSB filed with respect to
the Registrant's quarterly period ended March 31, 1999.
(c) 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.
(d) 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 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.
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 (Incorporated by reference to Exhibit 4.3 to the
Registrant's Registration Statement on Form S-8 (No. 333-58375) filed on
July 2, 1998.)
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)
- ------------------
* Filed herewith.
<PAGE>
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, 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.
<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 June 9, 1999.
BUCKHEAD AMERICA CORPORATION
By: /s/ Douglas C. Collins
------------------------------------------
Douglas C. Collins,
Chairman of the Board of Directors,
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 Chairman of the Board of Directors, June 9, 1999
- ------------------------- President, Chief Executive Officer,
Douglas C. Collins Treasurer and Director (Principal
Executive Officer)
/s/ Robert B. Lee Senior Vice President, Chief Financial June 9, 1999
- ------------------------- Officer, Secretary and Director
Robert B. Lee (Principal Financial and Accounting
Officer)
Director June ___, 1999
- -------------------------
Ronald L. Devine
/s/ William K. Stern Director June 14, 1999
- -------------------------
William K. Stern
Director June ___, 1999
- -------------------------
Steven A. Van Dyke
Director June ___, 1999
- -------------------------
David C. Glickman
/s/ David B. Mumford Director June 14, 1999
- -------------------------
David B. Mumford
847598v1
<PAGE>
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 (Incorporated by reference to Exhibit 4.3 to the
Registrant's Registration Statement on Form S-8 (No. 333-58375) filed on
July 2, 1998.)
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 LLP
24.1* Power of Attorney (included as part of signature page hereto)
____________
* 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
June 17, 1999
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 1999 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,
ARNALL GOLDEN & GREGORY, LLP
ACCOUNTANTS' CONSENT
The Board of Directors
Buckhead America Corporation:
We consent to the use of our report incorporated herein by reference.
/s/ KPMG LLP
KPMG LLP
Atlanta, Georgia
June 11, 1999
