<PAGE>
As filed with the Securities and Exchange Commission on June 7, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________
FRIEDMAN'S INC.
(Exact name of registrant as specified in its charter)
Delaware 58-2058362
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) identification number)
4 West State Street
Savannah, GA 31401
912-233-9333
(Address, including zip code, and telephone number, including area code, of the
Company's principal executive offices)
Victor M. Suglia
Senior Vice President and Chief Financial Officer
4 West State Street
Savannah, GA 31401
912-233-9333
(Name, address, including zip code and telephone number, including area code, of
agent for service)
Copy to:
Mark F. McElreath, Esq.
Alston & Bird LLP
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Phone: (404) 881-7000
Facsimile: (404) 881-4777
________________
Approximate date of commencement of proposed sale to public: As soon as
practicable after the effectiveness of the Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [X]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_] ___________________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. [_] ___________________
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. [_] ___________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
_______________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================================
Title of Shares Amount To Be Proposed Maximum Proposed Maximum Amount of
To Be Registered Registered Offering Price Per Share (1) Aggregate Offering Price (1) Registration Fee
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, $0.01
par value per share 300,000 shares $6.125 $1,837,500 $486
==================================================================================================================================
</TABLE>
/(1)/ Pursuant to Rule 457(c) and solely for the purpose of calculating the
registration fee, the Proposed Maximum Offering Price Per Share is based
upon the average of the high and low prices of Friedman's Inc. Class A
Common Stock on June 1, 2000.
__________________
===============================================================================
<PAGE>
________________
300,000 Shares
FRIEDMAN'S INC.
Class A Common Stock
_______________________
DIVIDEND REINVESTMENT PLAN
________________
The Dividend Reinvestment Plan of Friedman's Inc. provides our stockholders
with a simple and convenient method of acquiring additional shares of our Class
A Common Stock, par value $0.01 per share. If you own at least 100 shares of
Friedman's Class A or Class B Common Stock you are eligible to participate in
the Plan, even if your shares are held in the name of a nominee or broker (i.e.,
"street name"). Friedman's Class A Common Stock is listed on the Nasdaq National
Market under the symbol "FRDM."
If you enroll in the Plan, it will use your dividends to acquire additional
shares of our Class A Common Stock. Additionally, the Plan also will reinvest in
our Class A Common Stock any dividends that you receive on shares held in your
plan account. You should read this entire prospectus for a complete description
of the terms of the Plan.
If you are eligible, you may begin participating in the Plan by completing
an Authorization Card and returning it to the Plan Administrator: Shareholder
Services Group, First Union National Bank, 1525 West W.T. Harris Blvd. 3C3,
Charlotte, North Carolina 28288-1153 (Courier 28262-1153). You may terminate
your participation in the Plan at any time. If you do not wish to participate in
the Plan, you do not need to take any action, and you will continue to receive
your cash dividends if and when declared, as usual.
Any investment in shares of our Class A Common Stock involves risk. You
should read "Risk Factors" beginning on page 6 before enrolling in the Plan or
purchasing any shares of our Class A Common Stock.
________________
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is
a criminal offense.
________________
The date of this Prospectus is June 7, 2000.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page No.
-------
<S> <C>
Friedman's Inc. Dividend Reinvestment Plan............... 1
Risk Factors............................................. 6
Use of Proceeds.......................................... 7
Legal Matters............................................ 7
Experts.................................................. 8
Incorporation of Certain Documents by Reference.......... 8
Where You Can Find More Information...................... 8
Indemnification of Officers and Directors................ 9
</TABLE>
<PAGE>
FRIEDMAN'S INC. DIVIDEND REINVESTMENT PLAN
The following questions and answers constitute our Dividend Reinvestment
Plan and explain how it works. Although our board of directors may elect at any
time to increase, decrease, eliminate or modify the payment of dividends on our
stock, we currently expect to continue to pay quarterly cash dividends on shares
of our stock in a manner that is consistent with our past practices. If you are
a stockholder and do not participate in this Plan, you will continue to receive
cash dividends in the usual manner, as we declare and pay them.
PURPOSE
1. What is the purpose of the Plan?
The purpose of the Plan is to provide you with a simple and convenient way
of purchasing additional shares of our stock without incurring any commissions
or fees of any kind. Generally, the plan will purchase Class A Common Stock for
your account on the open market, including in negotiated transactions or over
the counter. If the Plan cannot purchase enough shares on the open market,
Friedman's may issue new shares of Class A Common Stock. If we issue new shares
of Class A Common Stock, we will use the proceeds of such issuances for general
corporate purposes.
ADVANTAGES
2. What are the advantages of the Plan to stockholders?
If you elect to participate in the Plan you may:
1. Automatically reinvest your cash dividends, including cash dividends
otherwise payable on shares held in your account under the Plan;
2. Invest the full amount of all dividends because you may hold
fractional shares under the Plan;
3. Invest without incurring any commissions or fees of any kind;
provided, however, that if your shares are registered in the name of
a nominee or broker, your nominee or broker may charge you a
commission or fee; and
4. Avoid safekeeping and record-keeping requirements and costs through
the free custodial service and reporting provisions provided by the
Plan.
PARTICIPATION
3. Who is eligible to participate?
All Friedman's stockholders who own at least 100 shares of our Class A or
Class B Common Stock are eligible to participate in the Plan. If your shares are
registered in the name of a nominee or broker you may participate in the Plan by
making appropriate arrangements to have your nominee or broker execute the
Authorization Card electing participation under the Plan.
4. How does an eligible stockholder participate?
You may join the Plan by signing an Authorization Card and returning it to
First Union National Bank, which is acting as the Plan Administrator. Company
stockholders whose shares are registered in the name of a nominee or broker must
have the nominee or broker sign the Authorization Card and return
<PAGE>
it to First Union National Bank. Additional forms may be obtained at any time by
written request to: Shareholder Services Group, First Union National Bank, 1525
West W.T. Harris Blvd. 3C3, Charlotte, North Carolina 28288-1153 (Courier 28262-
1153), or by calling First Union National Bank at (800) 829-8432.
5. When may a stockholder join the Plan?
If you are eligible, you may join the Plan at any time, and you will remain
a Participant until you terminate your participation or all shares held in your
Plan account are sold.
If the Plan Administrator receives an Authorization Card specifying your
desire to participate in the Plan at least five days prior to the record date
established for a particular dividend, your purchase of shares of Class A Common
Stock in lieu of cash dividends or reinvestment of cash dividends, as
appropriate, will commence with that dividend. If your Authorization Card is
received after the fifth business day prior to the record date established for a
particular cash dividend, then your participation in the Plan will not begin
until the cash dividend payment date following the next record date, as
applicable.
The Company has declared and paid dividends as follows during the past two
years.
Declaration Date Record Date Payment Date
---------------- ----------- ------------
March 3, 1999 March 31, 1999 April 15, 1999
May 12, 1999 May 31, 1999 July 15, 1999
September 1, 1999 September 30, 1999 October 15, 1999
December 1, 1999 December 31, 1999 January 15, 2000
March 3, 2000 March 31, 2000 April 17, 2000
6. What options do I have once I choose to participate in the Plan?
The Authorization Card provides you with the option to reinvest cash
dividends paid on all or a portion of the shares then or subsequently registered
in your name (or your nominee's or broker's name) as follows:
1. Full Participation directs the Company (through the Plan
Administrator) to reinvest all of your cash dividends on all of the
shares of Class A and Class B Common Stock then or subsequently
registered in your name.
2. Partial Participation directs the Company (through the Plan
Administrator) to reinvest your cash dividends only on the number of
shares of Class A and Class B Common Stock you designate on the
Authorization Card.
7. How may a Participant change options under the Plan?
You may change investment options at any time by requesting a new
Authorization Card and returning it to the Plan Administrator at the address
shown in Question 4.
EXPENSES
8. Are there any expenses of participation in connection with purchases under
the Plan?
Unless your shares are registered in the name of a nominee or broker, you
will not pay any brokerage commissions or service charges associated with your
participation in the Plan. Friedman's will pay all costs of administration of
the Plan.
-2-
<PAGE>
If your shares are registered in the name of a nominee or broker, such
nominee or broker may charge you a commission or fee with respect to shares
purchased pursuant to the Plan.
We have directed the Plan Administrator to process all sales for the Plan
through First Union Discount Brokerage Service, an affiliate of the Plan
Administrator. First Union Discount Brokerage Service has agreed to process all
sales of Class A Common Stock for the Plan on a non profit basis and will charge
fees only to the extent necessary to cover costs incurred by First Union
Discount Brokerage Service in effecting such transactions. No minimum fees will
be applied to any transaction by First Union Discount Brokerage Service.
PURCHASES
9. How many shares of Class A Common Stock will be purchased for Participants?
The number of shares to be purchased for you depends on whether you have
elected full or partial participation, the amount of the cash dividend declared
and the purchase price of the Class A Common Stock. Each account will be
credited with that number of shares, including fractional shares computed to
four decimal places, equal to the total amount to be reinvested divided by the
purchase price per share.
10. When, and at what price, will shares of Class A Common Stock be purchased
for Participants under the Plan?
The Plan will purchase shares for your account the business day immediately
following the date on which a cash dividend has been paid with respect to the
Class A and Class B Common Stock. If the Plan purchases shares in an open-
market transaction, the price will be the quoted price for our Class A Common
Stock on the Nasdaq National Market. If there are insufficient shares traded on
the Nasdaq National Market to meet the number of shares that the Plan seeks to
purchase, the Company will issue new shares at the closing price of the
Company's Class A Common Stock on the immediately preceding business day.
11. Who administers the Plan for Participants?
First Union National Bank administers the Plan for Participants, keeps
records, sends statements of account to Participants and performs other duties
relating to the Plan. Shares of Class A Common Stock purchased under the Plan
will be registered in the name of First Union National Bank (or its nominee) and
credited to the account of each Participant.
ADMINISTRATION
12. What kind of reports will be sent to Participants in the Plan?
As soon as practicable after each purchase of Class A Common Stock under
the Plan, you will receive a statement describing the transaction, including the
purchase price and the number of shares acquired. All year-to-date transactions
in your account will be included in each statement. These statements are a
record of the cost of purchase of shares under the Plan, and you should retain
them for tax purposes. You will continue to receive copies of our annual report
to stockholders, proxy statements and other information that we normally
distribute to our stockholders.
-3-
<PAGE>
13. Will Participants be credited with dividends on shares held in their
accounts under the Plan?
Yes. You will be credited with dividends on shares held in your accounts
under the Plan and to the extent you do not limit the level of participation on
your Authorization Card, dividends you receive on shares held in your accounts
under the plan also will be reinvested.
14. Will certificates be issued for shares of Class A Common Stock purchased
under the Plan?
Ordinarily, Friedman's will not issue certificates for shares of Class A
Common Stock purchased under the Plan. Shares will be held in the name of the
Plan Administrator or its nominee. The number of shares purchased for your
account under the Plan will be shown on your statement of account. This feature
protects you against loss, theft or destruction of your stock certificates. We
will issue upon written request certificates for any number of whole shares
under the Plan.
15. How may a Participant obtain certificates for shares purchased under the
Plan?
You may obtain certificates for all or a portion of the shares held in your
Plan by notifying the Plan Administrator in writing to that effect and
specifying in the notice the number of whole shares for which a certificate
should be issued. Certificates only for whole shares of Class A Common Stock
will be issued. Friedman's will not issue certificates for fractions of shares.
Dividends with respect to the shares for which a certificate is issued will
continue to be reinvested unless you submit a new Authorization Card reducing
the number of shares subject to the Plan.
16. How may a Participant's participation in the Plan be terminated?
You may terminate participation in the Plan at any time by notifying the
Plan Administrator in writing to that effect. If you notify the Plan
Administrator less than five business days prior to a dividend record date, your
termination notice will not be effective until dividends for such record date
have been reinvested. The Plan Administrator, at its discretion, may terminate
any account which contains only a fraction of a share by paying the account
holder the dollar value of such fractional share. The Company also may
terminate your participation in the Plan by giving written notice to you at any
time. If the Plan Administrator gives you this notice less than five business
days prior to a dividend record date, termination shall not be effective until
dividends for such record date have been reinvested.
17. What happens to any shares held in a Participant's account when a
Participant's participation in the Plan is terminated?
If your account, at the time of termination, contains a fractional share,
the Plan Administrator will make a cash payment to you equal to the average high
and low sale prices of Class A Common Stock on the date of termination as quoted
on the Nasdaq National Market, as reported in The Wall Street Journal or other
authoritative source, multiplied by such fractional share. This cash payment
and a certificate for whole shares will be mailed directly to you.
Alternatively, in connection with any termination, the Plan Administrator, upon
receipt of written instructions from you or your representative, will sell your
full shares of stock as soon as practicable following termination and send you
or your representative a check representing the proceeds, less applicable
brokerage commissions, taxes and the Plan Administrator's transaction charges.
18. What happens to a Participant's Plan account if shares of Class A Common
Stock are transferred or sold?
If you dispose of any stock held in the Plan, the Plan Administrator will
continue to reinvest the dividends on the remaining shares held in the Plan
account until your participation is terminated.
-4-
<PAGE>
19. What happens if the Company issues a stock dividend or declares a stock
split?
If Friedman's issues a dividend on the Class A Common Stock or declares a
stock split, any shares you receive will be credited to your account based on
the number of shares held in your account on the record date for such dividend
or split.
20. How will a Participant's Plan shares be voted at a meeting of stockholders?
If on the record date for a meeting of stockholders, there are any shares
of Class A Common Stock credited to your Plan account, such shares will be added
to the shares registered in your name in the stockholder records of the Company
and you will receive one proxy covering the total number of such shares, which
will be voted as you direct. Alternatively, if you so elect, you may vote all
of your shares in person at the meeting of stockholders.
21. What are the federal income tax consequences of participation in the Plan?
Under the current provisions of the Internal Revenue Code, the purchase of
shares of Class A Common Stock under the Plan will generally result in the
following federal income tax consequences:
1. A dividend on Class A and Class B Common Stock will be treated for
federal income tax purposes as a dividend received by the Participant
notwithstanding that it is used to purchase shares of Class A Common
Stock pursuant to the Plan. The full amount of cash dividends
reinvested under the Plan will constitute dividend income to
Participants.
2. Dividends paid to corporate stockholders, including all amounts
taxable as dividends to corporate Participants under (a) above, will
not be eligible for the corporate dividends-received deduction under
the Internal Revenue Code.
3. Your tax basis in additional Class A Common Stock acquired under the
Plan will be equal to the amount treated as a dividend for federal
income tax purposes with respect to such shares as described in (a)
above. Your holding period for such Class A Common Stock will commence
on the day after the investment date.
4. You will not realize any taxable income upon the receipt of a
certificate for full shares that have been previously credited to your
account. (see Question 15). You will recognize gain or loss when a
fractional share interest is liquidated or when you sell or exchange
shares received from the Plan. Such gain or loss will equal the
difference between the amount which you receive for such fractional
share interest or such shares and the tax basis therein.
If your dividends are subject to withholding of federal income tax,
dividends will be reinvested less the amount of tax required to be withheld.
The above is intended only as a general discussion of the current federal
income tax consequences of participation in the Plan. You should consult your
own tax adviser regarding the federal and state income tax consequences
(including the effects of any changes in law) of your participation in the Plan.
22. What is the responsibility of the Plan Administrator under the Plan?
In administering the Plan, First Union National Bank will not be liable for
any act done in good faith or for any good faith omission to act, including,
without limitation, any claim of liability arising out of failure to terminate
an account upon a Participant's death, the prices at which shares are purchased
for your account, the times when purchases are made or fluctuations in the
market value of the Class A
-5-
<PAGE>
Common Stock. Neither the Plan Administrator nor Friedman's shall have any
duties, responsibilities or liabilities except as are expressly set forth in
this prospectus.
23. May the Plan be changed or discontinued?
While Friedman's hopes to continue the Plan indefinitely, we reserve the
right to suspend or terminate the Plan at any time. Friedman's also reserves
the right to make modifications to the Plan and in each case will provide you
notice at your last known address at least thirty (30) days prior to the
effective date of such modification. Amendments or supplements may be required
as a result of changes in rules and regulations that governing authorities
issue. In such cases, amendments or supplements will be made and thereafter
notification will be sent to you. Friedman's also reserves the right to
terminate any Participant's participation in the Plan at any time for any
reason. Any question of interpretation arising under the Plan will be
determined by Friedman's and its determination will be final.
Friedman's intends to use its best efforts to maintain the effectiveness of
the Registration Statement filed with the Commission covering the offer and sale
of Class A Common Stock under the Plan. However, Friedman's has no obligation
to offer, issue or sell Class A Common Stock to Participants under the Plan if,
at the time of the offer, issuance or sale, such Registration Statement is for
any reason not effective. Also, Friedman's may elect not to offer or sell Class
A Common Stock under the Plan to you if you reside in a jurisdiction or foreign
country where, in the judgment of Friedman's, the burden or expense of
compliance with applicable blue sky or securities laws makes such offer or sale
there impracticable or inadvisable. In any of these circumstances, dividends,
if, as and when declared, will be paid to you in the usual manner.
24. Can checks be written against the Participant's Plan account or can the
account be transferred or pledged?
No. You may not draw checks or drafts against a Plan account nor do you
have the right to sell, assign, pledge or transfer a Plan account.
25. Where should correspondence regarding the Plan be directed?
You should direct all correspondence regarding the Plan to: Shareholder
Services Group, First Union National Bank, 1525 West W.T. Harris Blvd. 3C3,
Charlotte, North Carolina 28288-1153 (Courier 28262-1153). Please mention
Friedman's specific Plan in all correspondence.
RISK FACTORS
Before you participate in our Dividend Reinvestment Plan and invest in our
Class A Common Stock, you should be aware that there are risks in making such an
investment, including those described below. You should consider carefully
these risk factors together with all of the information included or incorporated
by reference in this prospectus before you decide to participate in the Plan and
purchase our Class A Common Stock. This section includes or refers to forward-
looking statements.
Risk Factors Related to an Investment in Friedman's through the Plan
You will not know the price at which you will be purchasing shares under the
Plan until several days after you have made an investment decision.
If you have enrolled in the Plan, but decide to withdraw, you must do so at
least five business days before a dividend record date. Between the time that
you decide to purchase shares through the Plan and the time of actual purchase,
the price of our Class A Common Stock may fluctuate, or other information may
become available to you that would affect your investment decision.
Accordingly, you
-6-
<PAGE>
bear the risk of buying shares of our Class A Common Stock through the Plan at
prices higher than you would otherwise be willing to pay, or under circumstances
in which you would otherwise not invest in shares of our Class A Common Stock.
The price of our stock may decline between the time you decide to sell shares of
stock in your plan account and the time that your shares are sold.
Participation in the Plan requires that you register shares of your stock
with the plan administrator. If you decide to sell these shares, you may
request the plan administrator either to sell your shares or to issue a
certificate to you so that a broker may sell your shares. The plan
administrator may take up to ten days to satisfy your request. If the market
price of our Class A Common Stock declines during that time, you will have lost
the opportunity to sell your shares at such higher price.
You will not be able to direct the time or price at which the plan administrator
sells your shares.
If you request the plan administrator to sell the shares held in your plan
account, you will not be able to direct the time or price at which your shares
are sold. Although the plan administrator will attempt in good-faith to obtain
the best price for you without delaying the sale of your shares, we cannot
assure you that the plan administrator will be able to sell your shares at the
highest possible price. Moreover, the plan administrator may sell your shares
at a price that is lower than the price at which you would otherwise prefer to
sell your shares.
Risk Factors Related to an Investment in Friedman's Generally
In addition to the risks relating to an investment in Friedman's through
the Plan, there are additional risks related to an investment in Friedman's
generally. The risks associated with an investment in Friedman's include those
risk factors that we identified and discussed in our Annual Report on Form 10-K
filed with the SEC on December 29, 1999. We are hereby incorporating by
reference the information disclosed in that Form 10-K, as well as any
supplements or modifications to that information that are contained in filings
made with the SEC after December 29, 1999. You should be aware that the risk
factors contained in that Form 10-K may not be exhaustive. Therefore, we
recommend that you read the information in the Form 10-K filed on December 29,
1999, together with the other reports and documents that we file with the SEC
from time to time, which may supplement, modify, supersede or update those risk
factors.
USE OF PROCEEDS
The net proceeds from the sale of original issue shares of Class A Common
Stock issued under the Plan will be used for Friedman's general corporate
purposes. Pending such use, the net proceeds may be temporarily invested. The
precise amounts and timing of the application of net proceeds will depend upon
the funding requirements of Friedman's and the availability of other funds.
LEGAL MATTERS,
The validity of the shares of the Common Stock issuable under the Plan is
being passed upon for the Company by Alston & Bird LLP, Atlanta, Georgia.
-7-
<PAGE>
EXPERTS
The consolidated financial statements of Friedman's Inc. appearing in
Friedman's Inc. Annual Report (Form 10-K) for the year ended September 30, 1999,
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given on the authority of such firm as experts in
accounting and auditing.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the information we file with
them, which means that we can disclose important information to you by referring
you to these documents. The information incorporated by reference is an
important part of this prospectus, and information that we file later with the
SEC will automatically update and supersede the information already incorporated
by reference. We are incorporating by reference the documents listed below,
which we have already filed with the SEC, and any future filings we make with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934 until we sell all of the securities covered by this prospectus.
Friedman's Inc. SEC Filings
(File No. 0-22356) Period
------------------------------ -------------------------------------
Annual Report on Form 10-K Fiscal year ended September 30, 1999
Quarterly Report on Form 10-Q Quarter ended December 31, 1999
Quarterly Report on Form 10-Q Quarter ended March 31, 2000
In addition, we are incorporating by reference the description of our Class
A Common Stock from registration statements we have previously filed under
Section 12 of the Securities Exchange Act, including any amendments to reports
filed for the purpose of updating these descriptions.
You may request a copy of any of the information that is incorporated by
reference in this prospectus, as well as any exhibit we have specifically
incorporated by reference as an exhibit in this prospectus, at no cost by
writing us at the following address: Friedman's Inc., 4 West State Street,
Savannah, GA 31401, Attention: Chief Financial Officer. Telephone requests
may be directed to (912) 233-9333.
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not
authorized anyone to provide you with different information. We are not making
an offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or the documents
incorporated by reference is accurate as of any date other than the date on the
front of this prospectus or those documents.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any materials we file with the SEC at the SEC's Public Reference Room at 450
Fifth Street, N.W., Washington, D.C. 20549. You may obtain information on the
operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330.
The Commission maintains a web site (http://www.sec.gov) that contains reports,
proxy and information statements and other information regarding the Company.
-8-
<PAGE>
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 145 of the General Corporation Law of the State of Delaware
empowers a Delaware corporation to indemnify present and former directors,
officers, employees or agents of the corporation. The Ninth article of the
Certificate of Incorporation of the Company provides, subject to the limitations
and qualifications set forth therein, that no director of the Company shall be
liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director as permitted by law.
The Certificate of Incorporation further provides that the Company shall to
the fullest extent permitted by applicable law as then in effect indemnify any
person who was or is involved in any manner or is threatened to be made so
involved in any threatened, pending or completed investigation, claim, 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 Company, or is
or was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against all expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
proceeding.
Insofar as indemnification, for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed that
in the opinion of the Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable.
-9-
<PAGE>
Part II
Items not Required in Prospectus
Item 14. Fees and Expenses
The following table sets forth the expenses Friedman's expects to
incur in connection with the sale and distribution of the shares of Class A
Common Stock Friedman's is registering. Except for the registration fee, all
amounts shown are estimates.
SEC registration fee............. $ 486
Printing and engraving expenses.. 6,000
Legal fees and expenses.......... 10,000
Accounting fees and expenses..... 2,500
Miscellaneous fees and expenses.. 1,000
-------
Total $19,986
Item 15. Indemnification of Directors and Officers
COMMISSION POSITION ON INDEMNIFICATION
Section 145 of the General Corporation Law of the State of Delaware
empowers a Delaware corporation to indemnify present and former directors,
officers, employees or agents of the corporation. The Ninth article of the
Certificate of Incorporation, as amended, of the Company provides:
NINTH: Limitation of Liability; Indemnification
A. Limitation of Directors' Liability
To the fullest extent that the General Corporation Law of the State of
Delaware, as it exists on the date hereof or as it may hereafter be amended,
permits the limitation or elimination of the liability of directors, no director
of the Company shall be liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director. No amendment to or repeal
of this Section A of this Article shall apply to or have any effect on the
liability or alleged liability of any director of the Company for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
B. Indemnification
1. Right to Indemnification. The Company shall to the fullest extent
permitted by applicable law as then in effect indemnify any person (the
"Indemnitee") who was or is involved in any manner (including, without
limitation, as a party or witness) or is threatened to be made so involved in
any threatened, pending or completed investigation, claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative (including,
without limitation, any action, suit or proceeding by or in the right of the
Company to procure a judgment in its favor) (a "Proceeding") by reason of the
fact that he is or was a director or officer of the Company, or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise
(including, without limitation, any employee benefit plan) against all expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such Proceeding.
Such indemnification shall be a contract right and shall include the right to
receive payment
II-1
<PAGE>
in advance of any expenses incurred by the Indemnitee in connection with such
Proceeding, consistent with the provisions of applicable law as then in effect.
(2) Insurance, Contracts and Funding. The Company may purchase and
maintain insurance to protect itself and any Indemnitee against any expenses,
judgments, fines and amounts paid in settlement as specified in Section B-1 of
this Article or incurred by any Indemnitee in connection with any Proceeding
referred to in Section B-1 of this Article, to the fullest extent permitted by
applicable law as then in effect. The Company may enter into contracts with any
director or officer of the Company in furtherance of the provisions of this
Article and may create a trust fund, grant a security interest or use other
means (including, without limitation, a letter of credit) to ensure the payment
of such amounts as may be necessary to effect indemnification as provided in
this Article.
(3) Indemnification Not Exclusive Right. The right of indemnification
provided in this Article shall not be exclusive of any other rights to which
those seeking indemnification may otherwise be entitled, and the provisions of
this Article shall inure to the benefit of the heirs and legal representatives
of any person entitled to indemnity under this Article and shall be applicable
to proceedings commenced or continuing after the adoption of this Article,
whether arising from acts or omissions occurring before or after such adoption.
(4) Advancement of Expenses; Procedures; Presumptions and Effects of
Certain Proceedings; Remedies. In furtherance but not in limitation of the
foregoing provisions, the following procedures, presumptions and remedies shall
apply with respect to the advancement of expenses and the right to
indemnification under this Article:
(a) Advancement of Expenses. All reasonable expenses incurred by or
on behalf of an Indemnitee in connection with any Proceeding shall be
advanced to the Indemnitee by the Company within 20 days after the receipt
by the Company of a statement or statements from the Indemnitee requesting
such advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall
reasonably evidence the expenses incurred by the Indemnitee and, if
required by law at the time of such advance, shall include or be
accompanied by an undertaking by or on behalf of the Indemnitee to repay
the amounts advanced if it should ultimately be determined that the
Indemnitee is not entitled to be indemnified against such expenses pursuant
to this Article.
(b) Procedure for Determination of Entitlement to Indemnification.
(i) To obtain indemnification under this Article, an Indemnitee shall
submit to the Secretary of the Company a written request, including such
documentation as is reasonably available to the Indemnitee and reasonably
necessary to determine whether and to what extent the Indemnitee is
entitled to indemnification (the "Supporting Documentation"). The
determination of the Indemnitee's entitlement to indemnification shall be
made no later than 60 days after receipt by the Company of the written
request for indemnification together with the Supporting Documentation. The
Secretary of the Company shall, promptly upon receipt of such a request for
indemnification, advise the Board of Directors in writing that the
Indemnitee has requested indemnification.
(ii) The Indemnitee's entitlement to indemnification under this
Article shall be determined in one of the following ways: (A) by a
majority vote of the Disinterested Directors (as hereinafter defined),
if they constitute a quorum of the Board of Directors; (B) by a
written opinion of Independent Counsel (as hereinafter defined) if a
quorum of the Board of Directors consisting of Disinterested Directors
is not obtainable or, even if obtainable, a majority of such
II-2
<PAGE>
Disinterested Directors so directs; (C) by the stockholders of the
Company entitled to vote; or (D) as provided in Section B-4(c) of this
Article.
(iii) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to
Section B-4(b)(ii) of this Article, a majority of the Disinterested
Directors shall select the Independent Counsel, but only an
Independent Counsel to which the Indemnitee does not reasonably
object.
(c) Presumptions and Effect of Certain Proceedings. Except as
otherwise expressly provided in this Article, the Indemnitee shall be
presumed to be entitled to indemnification under this Article upon
submission of a request for indemnification together with the Supporting
Documentation in accordance with Section B-4(b)(i), and thereafter the
Company shall have the burden of proof to overcome that presumption in
reaching a contrary determination. In any event, if the person or persons
empowered under Section B-4(b) of this Article to determine entitlement to
indemnification shall not have been appointed or shall not have made a
determination within 60 days after the receipt by the Company of the
request therefor together with the Supporting Documentation, the Indemnitee
shall be entitled to indemnification unless (A) the Indemnitee
misrepresented or failed to disclose a material fact in making the request
for indemnification or in the Supporting Documentation or (B) such
indemnification is prohibited by law. The termination of any Proceeding
described in Section B-1, or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, adversely affect the
right of the Indemnitee to indemnification or create a presumption that the
Indemnitee did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Company or,
with respect to any criminal proceeding, that the Indemnitee had reasonable
cause to believe that his conduct was unlawful.
(d) Remedies of Indemnitee. (i) In the event that a determination
is made pursuant to Section B-4(b) of this Article that the Indemnitee is
not entitled to indemnification under this Article, (A) the Indemnitee
shall be entitled to seek an adjudication of his entitlement to such
indemnification either, at the Indemnitee's sole option, in (x) an
appropriate court of the State of Delaware or any other court of competent
jurisdiction or (y) an arbitration to be conducted by a single arbitrator
pursuant to the rules of the American Arbitration Association; (B) any such
judicial proceeding or arbitration shall be de novo and the Indemnitee
shall not be prejudiced by reason of such adverse determination; and (C) in
any such judicial proceeding or arbitration the Company shall have the
burden of proving that the Indemnitee is not entitled to indemnification
under this Article.
(ii) If a determination shall have been made or deemed to have been
made, pursuant to Section B-4(b) or (c), that the Indemnitee is entitled to
indemnification, the Company shall be obligated to pay the amounts
constituting such indemnification within five days after such determination
has been made or deemed to have been made and shall be conclusively bound
by such determination unless (A) the Indemnitee misrepresented or failed to
disclose a material fact in making the request for indemnification or in
the Supporting Documentation or (B) such indemnification is prohibited by
law. In the event that (C) advancement of expenses is not timely made
pursuant to Section B-4(a) or (D) payment of indemnification is not made
within five days after a determination if entitlement to indemnification
has been made or deemed to have been made pursuant to Section B-4(b) or
(c), the Indemnitee shall be entitled to seek judicial enforcement of the
Company's obligation to pay to the Indemnitee such advancement of expenses
or indemnification. Notwithstanding the foregoing, the
II-3
<PAGE>
Company may bring an action, in an appropriate court of the State of
Delaware or any other court of competent jurisdiction, contesting the right
of the Indemnitee to receive indemnification hereunder due to the
occurrence of an event described in subclause (A) or (B) of this clause
(ii) (a "Disqualifying Event"); provided, however, that in any such action
the Company shall have the burden of proving the occurrence of such
Disqualifying Event.
(iii) The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section B-4(d) that
the procedures and presumptions of this Article are not valid, binding and
enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Article.
(iv) In the event that the Indemnitee, pursuant to this Section B-
4(d), seeks a judicial adjudication of or an award in arbitration to
enforce his rights under, or to recover damages for breach of, this
Article, the Indemnitee shall be entitled to recover from the Company, and
shall be indemnified by the Company against, any expenses actually and
reasonably incurred by him if the Indemnitee prevails in such judicial
adjudication. If it shall be determined in such judicial adjudication or
arbitration that the Indemnitee is entitled to receive part but not all of
the indemnification or advancement of expenses sought, the expenses
incurred by the Indemnitee in connection with such judicial adjudication or
arbitration shall be prorated accordingly.
(e) Definitions. For purposes of this Section B-4:
(i) "Disinterested Director" means a director of the Company who is
not or was not a party to the Proceeding in respect of which
indemnification is sought by the Indemnitee.
(ii) "Independent Counsel" means a law firm or a member of a law
firm that neither presently is, nor in the past five years has been,
retained to represent (A) the Company or the Indemnitee in any matter
material to either such party or (B) any other party to the Proceeding
giving rise to a claim for indemnification under this Article.
Notwithstanding the foregoing, the term "Independent Counsel" shall not
include any person who, under the applicable standards of professional
conduct then prevailing under the law of the State of Delaware, would
have a conflict of interest in representing either the Company or the
Indemnitee in an action to determine the Indemnitee's rights under this
Article.
(5) Severability. If any provisions of this Article shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (a) the
validity, legality and enforceability of the remaining provisions of this
Article (including, without limitation, all portions of any paragraph of this
Article containing any such provision held to be invalid, illegal or
unenforceable that are not themselves invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and (b) to the fullest
extent possible, the provisions of this Article (including, without
limitation, all portions of any paragraph of this Article containing any such
provision held to be invalid, illegal or unenforceable that are not
themselves invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal
or unenforceable.
Friedman's has purchased directors and officers' liability insurance covering
many of the possible actions and omissions of persons acting or failing to act
in such capacities.
II-4
<PAGE>
Insofar as indemnification, for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed that
in the opinion of the Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable.
Item 16. Exhibits
Number Description
------ -----------
4 Friedman's Inc. Dividend Reinvestment Plan (included as part of the
prospectus filed with this registration statement)
5 Opinion of Alston & Bird LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Alston & Bird LLP (included in Exhibit 5)
24 Power of Attorney (included on page II-6 hereof)
99.1 Stockholder Authorization Agreement
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(a) (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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed 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 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 that is
incorporated by reference in
II-5
<PAGE>
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.
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Savannah, State of Georgia, on this 5th day of June
2000.
FRIEDMAN'S INC.
By: /s/ Bradley J. Stinn
----------------------------------------
Bradley J. Stinn
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Bradley J. Stinn and Victor Suglia, and
each of them, with the power to act without the other, as 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
(including post-effective amendments), and to file any of 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 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 any of them, or his or their substitutes, may lawfully do or cause to
be done by virtue hereof.
II-6
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on June 5, 2000.
Name Title
---- -----
/s/ Bradley J. Stinn President and Chief Executive Officer (Principal
------------------------- Executive Officer)
Bradley J. Stinn
Chairman of the Board of Directors
-------------------------
Sterling B. Brinkley
Director
-------------------------
John E. Cay, III
Director
-------------------------
Robert W. Cruickshank
/s/ David B. Parshall Director
-------------------------
David B. Parshall
/s/ Mark C. Pickup Director
-------------------------
Mark C. Pickup
/s/ Victor M. Suglia Senior Vice President - Chief Financial Officer
------------------------- (Principal Financial and Accounting Officer)
Victor M. Suglia
II-7
