Registration No. 33-_______________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
INTERNATIONAL FRANCHISE SYSTEMS, INC.
(Exact name of issuer as specified in its charter)
Delaware 52-1853204
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6701 Democracy Boulevard, Suite 300
Bethesda, MD 20817
(Address of Principal Executive Offices) (Zip Code)
1994 STOCK INCENTIVE PLAN
1997 STOCK INCENTIVE PLAN
(Full title of plans)
H. Michael Bush
Acting President
International Franchise Systems, Inc.
6701 Democracy Boulevard, Suite 300
Bethesda, MD 20817
(Name and address of agent for service)
(301) 897-4870
(Telephone number, including area code, of agent for service)
With a Copy to:
Bari Krein, Esquire
Reed Smith Shaw & McClay LLP
2500 One Liberty Place
Philadelphia, PA 19103
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering price aggregate registration
registered registered(1) per share(2) offering price(2) fee
<S> <C> <C> <C> <C>
Common Stock,
par value
$.01 per
share.................. 815,000 shs. $2.188 $1,783,220 $540
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to the
1994 Stock Incentive Plan and the 1997 Stock Incentive Plan (collectively, the
"Plans") in the event of a stock dividend, split-up of shares, recapitalization
or other similar change in the Common Stock. This registration of the 815,000
shares of Common Stock includes 15,000 shares to cover the shares issuable upon
options exercisable under the 1994 Stock Incentive Plan and 800,000 shares to
cover the shares issuable upon options exercisable under the 1997 Stock
Incentive Plan.
(2) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rules 457(h) and (c), the proposed maximum aggregate offering price
for shares which may be issued under the Plans is based on the average of the
high and low sales prices of the Common Stock as reported by the Electronic
Bulletin Board System of the National Association of Securities Dealers, Inc.,
for November 28, 1997.
EXPLANATORY NOTE
This registration statement on Form S-8 covers 15,000 shares of Common Stock,
$.01 par value, to be issued upon exercise of options granted under the
Company's 1994 Stock Incentive Plan (now terminated), and 800,000 shares of
Common Stock, $.01 par value, to be issued upon exercise of options granted
under the Company's 1997 Stock Incentive Plan.
<PAGE>
PART II
INFORMATION REQUIRED IN
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by the Company with the Securities and
Exchange Commission are incorporated in this Registration Statement by reference
and made a part of this Registration Statement:
(a) The Company's latest annual report on Form 10-KSB filed
pursuant to Section 13(a) of the Securities Exchange Act of 1934, as
amended (the "1934 Act");
(b) All other reports filed by the Company pursuant to Section
13(a) of the 1934 Act since the end of the fiscal year covered by the
annual report on Form 10-KSB referred to above; and
(c) Any description of the Common Stock which is contained in
a registration statement filed by the Company pursuant to the 1934 Act,
including any amendment or report filed for the purpose of updating
such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the 1934 Act on or subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities 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 in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in this Registration Statement or in any other
contemporaneously or subsequently filed document which also is or is deemed to
be incorporated by reference in this Registration Statement 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 Delaware General Corporation Law specifically provides (i) that a
director or officer of a corporation may be indemnified against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with 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 the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation if he acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interest of the corporation, and with
respect to any criminal action or proceeding, he had no reasonable cause to
believe his conduct was unlawful and (ii) that a director or officer of a
<PAGE>
corporation may be indemnified in connection with any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the corporation against expenses (including
attorneys' fees) actually and reasonably incurred by the director or officer in
connection with the defense or settlement of such action or suit if the director
or officer acted in good faith and in a manner he reasonably believed to be in,
or not opposed to, the best interests of the corporation except that no
indemnification may be provided in respect of any claim, issue or matter as to
which the director or officer is adjudged to be liable to the corporation unless
and only to the extent that the Court of Chancery or the court in which the
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, the
director or officer is fairly and reasonably entitled to indemnity for such
expenses as the Court of Chancery or such other court shall deem proper. The
Delaware General Corporation Law provides that the indemnification described
above shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise.
In implementation of the provisions of the Delaware General Corporation
Law, the Company's Certificate of Incorporation provides that except as
prohibited by law every Director and officer of the Company shall be entitled as
of right to be indemnified by the Company against reasonable expenses and any
liability paid or incurred by such person in connection with any actual or
threatened claim, action, suit or proceeding, civil, criminal, administrative,
investigative or other, whether brought by or in the right of the Company or
otherwise, in which such person may be involved, as a party or otherwise, by
reason of being or having been a Director or officer of the Company. Such right
to indemnification does not, however, apply to certain actions brought by a
Director or officer himself. As in the case of the Delaware General Corporation
Law, the Certificate of Incorporation also contains a non-exclusivity provision.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following documents are filed as part of this Registration
Statement or incorporated by reference herein.
Exhibit
No.
4.1* Certificate of Incorporation of the registrant, as amended,
filed herewith.
4.2* Bylaws of the registrant, as amended, filed herewith.
5.1 Opinion of Reed Smith Shaw & McClay LLP as to the legality
of the Common Stock, filed herewith.
23.1 Consent of Reed Smith Shaw & McClay LLP (included in
Exhibit 5.1 filed herewith).
23.2 Consent of Moore Stephens, P.C., filed herewith.
24.1 Power of Attorney, contained on the signature page to this
Registration Statement.
* Incorporated by reference to the exhibit with the same name to the Company's
Form S-8 Registration Statement (file number 33-93680).
-2-
<PAGE>
Item 9. Undertakings.
(a) Rule 415 offering.
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 paragraphs (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3 or Form
S-8, and 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; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) Filings incorporating subsequent Exchange Act Documents by
Reference.
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 the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
________
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "1933 Act") may be permitted to directors, officers
and controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the 1933 Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the 1933 Act
and will be governed by the final adjudication of such issue.
-3-
<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 Bethesda, Maryland, on the 28th day of November, 1997.
INTERNATIONAL FRANCHISE SYSTEMS, INC.
By: /s/ H. Michael Bush
H. Michael Bush, Acting President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Colin Halpern and Gerald Halpern, 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, 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 their or his
substitutes, may lawfully do or cause to be done by virtue thereof.
<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 the 28th day of November, 1997.
Name Title
/s/ H. Michael Bush Acting President,
H. Michael Bush Chief Financial Officer,
Secretary and Director
(Principal Executive Officer,
Principal Financial Officer and
Principal Accounting Officer)
/s/ Colin Halpern Chairman of the Board
Colin Halpern and Director
/s/ Gerald Halpern Executive Vice President
Gerald Halpern and Director
<PAGE>
INTERNATIONAL FRANCHISE SYSTEMS, INC.
1994 Stock Incentive Plan
1997 Stock Incentive Plan
REGISTRATION STATEMENT
ON FORM S-8
Exhibit Index
Exhibit
No. Document
4.1* Certificate of Incorporation of the
registrant, as amended, filed herewith.
4.2* Bylaws of the registrant, as amended,
filed herewith.
5.1 Opinion of Reed Smith Shaw & McClay LLP, as
to the legality of the Common Stock, filed
herewith.
23.1 Consent of Reed Smith Shaw & McClay LLP
(included in Exhibit 5.1 filed herewith).
23.2 Consent of Moore Stephens, P.C.,
independent auditors, filed herewith.
24.1 Power of Attorney, contained on the
signature page to this Registration
Statement.
* Incorporated by reference to the exhibit with the same name to the Company's
Form S-8 Registration Statement (file number 33-93680).
EXHIBIT 5.1
<PAGE>
REED SMITH SHAW & MCCLAY LLP
2500 ONE LIBERTY PLACE
HARRISBURG, PA
PHILADELPHIA, PA 19103-7301 McLEAN, VA
NEWARK, NJ
215-851-8100 PHILADELPHIA, PA
WRITER'S DIRECT NUMBERS: PITTSBURGH, PA
FAX 215-851-1420 PRINCETON, NJ
WASHINGTON, DC
December 2, 1997
International Franchise Systems, Inc.
6701 Democracy Boulevard
Suite 300
Bethesda, MD 20817
Re: Registration Statement on Form S-8
1994 and 1997 Stock Incentive Plans
Gentlemen:
We have acted as counsel to International Franchise Systems,
Inc. (the "Company") in connection with the above-captioned Registration
Statement relating to up to 815,000 shares of Common Stock, par value $.01 per
share, of the Company (the "Common Stock") which may be purchased or acquired by
employees, officers, and directors of the Company under the Company's 1994 Stock
Incentive Plan and 1997 Stock Incentive Plan (collectively, the "Plans"). The
Plans provide that either authorized but unissued or reacquired shares of Common
Stock may be issued upon the exercise of stock options granted under the Plans.
In rendering our opinion below, we have assumed that any previously issued
shares reacquired by the Company and used under the Plans have been duly
authorized, validly issued and fully paid at the time of their original
issuance.
In connection with this opinion, we have examined, among other
things:
(1) the Certificate of Incorporation of the Company, as
amended to date;
(2) resolutions adopted by the Board of Directors of the
Company on March 15, 1995, adopting the 1994 Stock Incentive Plan, authorizing
the officers of the Company to take all action necessary to (i) issue up to
400,000 shares of Common Stock thereunder, and (ii) reserve 400,000 shares of
Common Stock for such purpose;
(3) resolutions adopted by the Board of Directors of the
Company on December 18, 1996, terminating the 1994 Stock Incentive Plan
effective December 31, 1996;
(4) resolutions adopted by the Board of Directors of the
Company on December 18, 1996, providing that any reserved stock under the 1994
Stock Incentive Plan (now terminated) for which options have not been granted or
exercised shall cease to be reserved. At present, 15,000 shares of Common Stock
may be issued upon exercise of options granted under the 1994 Incentive Plan
(now terminated);
<PAGE>
REED SMITH SHAW & MCCLAY LLP
International Franchise Systems, Inc.
December 2, 1997
Page 2
(5) resolutions adopted by the Board of Directors of the
Company on December 18, 1996, adopting the 1997 Stock Incentive Plan,
authorizing the issuance of up to 800,000 shares of Common Stock thereunder and
reserving 800,000 shares of Common Stock for such purpose; and
(6) the 1997 Stock Incentive Plan, as currently in effect.
Based upon the foregoing and upon an examination of such other
documents, corporate proceedings, statutes, decisions and questions of law as we
considered necessary in order to enable us to furnish this opinion, and subject
to the assumption set forth above, we are pleased to advise you that in our
opinion:
(a) The Company has been duly incorporated and is a validly
existing corporation under the laws of the State of Delaware; and
(b) The shares of Common Stock being registered and which may
be issued by the Company pursuant to the provisions of the Plans upon the
exercise of stock options granted or upon awards of restricted shares under the
Plans have been duly authorized, and upon such issuance in accordance with the
provisions of the Plans such shares will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an Exhibit
to the Registration Statement and to the use of our name in the Prospectus under
the caption "Legal Opinion".
Yours truly,
/s/ Reed Smith Shaw & McClay, LLP
EXHIBIT 23.2
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated March 3, 1997, which
appears on page F-1 of Form 10-KSB for International Franchise Systems, Inc.,
for the year ended December 29, 1996.
MOORE STEPHENS, P. C.
Certified Public Accountants.
Cranford, New Jersey
December 2, 1997
