<PAGE> 1
As filed with the Securities and Exchange Commission on August 7, 1996
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
DENAMERICA CORP.
(Exact name of Registrant as specified in its charter)
Georgia 58-1861457
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
7373 North Scottsdale Road, Suite D-120
Scottsdale, Arizona 85253
(Address of Principal executive offices)(zip code)
DENAMERICA CORP.
Stock Option Agreements
(Full Title of the Plan)
Jack M. Lloyd
Chairman of the Board, President and Chief Executive Officer
DENAMERICA CORP.
7373 North Scottsdale Road, Suite D-120, Scottsdale, Arizona 85253
(602) 483-7055
(Telephone number, including area code, of agent for service)
This Registration Statement shall become effective immediately upon filing with
the Securities and Exchange Commission, and sales of the registered securities
will begin as soon as reasonably practicable after such effective date.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=====================================================================================================
Proposed maximum Proposed maximum Amount of
Title of Securities Amount to be offering price per aggregate offering registration fee
to be Registered registered(1) share(2) price
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 264,800 Shares $4.00 $1,059,200.00 $365.24
Common Stock 60,000 Shares $3.00 180,000.00 62.07
-------------- ------------- -------
324,800 Shares $1,239,200.00 $427.31
=====================================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Stock Option Agreements by
reason of any stock dividend, stock split, recaptialization or any
other similar transaction without receipt of consideration which
results in an increase in the number of outstanding shares of Common
Stock of DenAmerica Corp.
(2) Calculated for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
DenAmerica Corp. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "1934 Act"), or the latest prospectus filed
pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), that contains audited financial statements
for the Registrant's latest fiscal year for which such
statements have been filed;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the 1934 Act since the end of the fiscal year covered by the
document referred to in (a) above; and
(c) The description of the Registrant's Capital Stock contained in
the Registrant's Registration Statement on Form 8-A filed with
the Commission on October 18, 1994.
All reports and definitive proxy or information statements
filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after 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 into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The firm of O'Connor, Cavanagh, Anderson, Killingsworth &
Beshears, a professional association, Phoenix, Arizona, has acted as counsel for
the Registrant in the preparation of this Registration Statement. As of August
6, 1996, certain members of such firm beneficially owned a total of 8,000 shares
of the Registrant's Common Stock.
Item 6. Indemnification of Directors and Officers
Article VI of the Registrant's Restated Articles of Incorporation
contains the following provisions:
Section 6.1 "No director of the Corporation shall have personal
liability to the Corporation or to its shareholders for monetary damages for
breach of duty of care or other duty as a director, except for liability: (i)
for any appropriation, in violation of the director's duties, of any business
opportunity of the Corporation; (ii) for acts or omissions which involve
intentional misconduct or a knowing violation of law; (iii) for the types of
liability set forth in Section 14-2-832 of the Georgia Business Corporation
Code; or (iv) for any transaction from which the director received an improper
personal benefit.
Section 6.2 Neither the amendment nor repeal of this Article, nor the
adoption of any provision of the Articles of Incorporation of the Corporation
inconsistent with this Article, shall eliminate or adversely affect any
II-1
<PAGE> 3
right or protection of a director of the Corporation existing immediately prior
to such amendment, repeal or adoption of an inconsistent provision.
Section 6.3 If the Georgia Business Corporation Code is amended to
authorize the further limitation of the liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Georgia Business Corporation Code, as amended."
Section 14-2-851 of the Georgia Business Corporation Code provides that
a corporation may indemnify its directors and officers against civil and
criminal liabilities. Directors and officers may be indemnified against expenses
if they acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any
criminal action, if they had no reasonable cause to believe their conduct was
unlawful. A director or officer may be indemnified against expenses incurred in
connection with a derivative suit if he acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made without court approval
if such person was adjudged liable for negligence or misconduct in the
performance of his or her duty to the corporation. The statutory indemnification
is not exclusive of any rights provided by any by-law, agreement, vote of
shareholders or disinterested directors or otherwise.
Article IX of the Registrant's Amended and Restated Bylaws sets forth
the extent to which the Registrant's directors and officers may be indemnified
against liabilities which they may incur while serving in such capacities. Such
indemnification will be provided to the full extent permitted and in the manner
required by the Georgia Business Corporation Code. Pursuant to these provisions,
the directors and officers of the Registrant will be indemnified against any
losses incurred in connection with any threatened, pending or completed 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 Registrant or
served with another corporation, partnership, joint venture, trust or other
enterprise at the request of the Registrant. In addition, the Registrant will
provide advances for expenses incurred in defending any such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such officer or
director to repay such advances if it is ultimately determined that he is not
entitled to indemnification by the Registrant.
The Registrant has entered into indemnification agreements with certain
directors and executive officers pursuant to the foregoing provisions of its
Amended and Restated Bylaws.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is therefore unenforceable.
Item 7. Exemption from Registration Claimed
Not applicable.
II-2
<PAGE> 4
Item 8. Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
- ------ -------
<S> <C>
5 Opinion and consent of O'Connor, Cavanagh, Anderson, Killingsworth &
Beshears, a professional association
10.95 Stock Option Agreement, dated March 29, 1996, by and between DenAmerica
Corp. and William G. Cox
10.109 Stock Option Agreement, dated April 29, 1996, by and between DenAmerica
Corp. and Todd S. Brown
23.1 Consent of Independent Public Accountants - Deloitte & Touche LLP
23.2 Consent of O'Connor, Cavanagh, Anderson, Killingsworth & Beshears, P.A.
is contained in Exhibit 5
24 Power of Attorney (included on page II.4 of this Registration
Statement)
</TABLE>
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; (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 and 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 20 percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement;
and (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 clauses (1)(i) and (1)(ii) do 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 1934 Act that are incorporated by reference into the
Registration Statement; (2) that, for the purpose of determining any liability
under the Securities Act, 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 Stock Option Agreements.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report, pursuant to Section 13(a) or Section 15(d) of
the 1934 Act that is incorporated by reference into 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 or
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE> 5
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 Scottsdale, State of Arizona, on August 6,
1996.
DENAMERICA CORP.
By: /s/ Jack M. Lloyd
------------------------
Jack M. Lloyd
Chairman of the Board, President,
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and severally, Jack M.
Lloyd and Todd S. Brown, and each of them, as his true and lawful
attorney-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 connection therewith, 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 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:
<TABLE>
<CAPTION>
SIGNATURE POSITION DATE
--------- -------- ----
<S> <C> <C>
/s/ Jack M. Lloyd Chairman of the Board, President, August 6, 1996
- ------------------------- and Chief Executive Officer
Jack M. Lloyd (Principal Executive Officer)
/s/ William J. Howard Executive Vice President, Secretary, August 6, 1996
- -------------------------
William J. Howard and Director
/s/ William G. Cox Chief Operating Officer and Director August 6, 1996
- -------------------------
William G. Cox
/s/ Todd S. Brown Vice President, Chief Financial Officer, August 6, 1996
- ------------------------- Treasurer, and Director (Principal
Todd S. Brown Financial and Accounting Officer)
/s/ John M. Holliman, III Director August 6, 1996
- -------------------------
John M. Holliman, III
/s/ C. Alan MacDonald Director August 6, 1996
- -------------------------
C. Alan MacDonald
/s/ Fred W. Martin Director August 6, 1996
- -------------------------
Fred W. Martin
/s/ Philip B. Smith Director August 6, 1996
- -------------------------
Philip B. Smith
</TABLE>
II-4
<PAGE> 1
EXHIBIT 5
[LETTERHEAD OF O'CONNOR, CAVANAGH, ANDERSON, KILLINGSWORTH & BESHEARS]
August 7, 1996
DenAmerica Corp.
7373 North Scottsdale Road, Suite D-120
Scottsdale, Arizona 85253
RE: REGISTRATION STATEMENT ON FORM S-8
DENAMERICA CORP.
Gentlemen:
As legal counsel to DenAmercia Corp., a Georgia corporation
(the "Company") we have assisted in the preparation of the Company's
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission on or about August 7, 1996 in
connection with the registration under the Securities Act of 1933, as amended,
of 324,800 shares of Common Stock, par value $0.10 per share, of the Company
(the "Shares") issuable pursuant to the Stock Option Agreements (the "Options")
by and between the Company and William G. Cox and Todd S. Brown, respectively.
The facts, as we understand them, are set forth in the Registration Statement.
With respect to the opinion set forth below, we have examined
originals, certified copies, or copies otherwise identified to our satisfaction
as being true copies, only of the following:
A. The Certificate of Incorporation of the Company, as filed
with the Secretary of State of the State of Georgia as amended through the date
hereof;
B. The Bylaws of the Company, as amended through the date
hereof;
C. Resolutions of the Board of Directors of the Company dated
July 3, 1996, reserving an aggregate of 324,800 shares of the Company's Common
Stock for the Options; and
D. The Registration Statement.
Subject to the assumptions that (i) the documents and
signatures examined by us are genuine and authentic and (ii) the persons
executing the documents examined by us have the legal capacity to execute such
documents, and subject to the further limitations and qualifications set forth
below, it is our opinion that the Shares, when issued and sold in accordance
with the terms of the Options, will be validly issued, fully paid and
nonassessable.
Please be advised that we are members of the State Bar of
Arizona, and our opinion is limited to the legality of matters under the laws of
the State of Arizona. Further, our opinion is based solely upon existing laws,
rules and regulations, and we undertake no obligation to advise you of any
changes that may be brought to our attention after the date hereof. We have,
however, consulted with counsel qualified to practice law in the Stae of Georgia
with respect to the opinion expressed above.
We hereby expressly consent to any reference to our firm in
the Registration Statement, inclusion of this Opinion as an exhibit to the
Registration Statement, and to the filing of this Opinion with any other
appropriate governmental agency.
Very truly yours,
O'Connor, Cavanagh, Anderson,
Killingsworth & Beshears,
a professional association
<PAGE> 1
EXHIBIT 10.95
DENAMERICA CORP.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT ("Agreement") is made as of the
29th day of March, 1996, by and between DENAMERICA CORP., a Georgia corporation
formerly known as American Family Restaurants, Inc., ("DenAmerica"), and WILLIAM
G. COX ("Cox").
WHEREAS, Cox and DenAmerica have entered into an Employment
Agreement as of December 8, 1995 (the "Employment Agreement"), whereby Cox will
serve as the Chief Operating Officer of DenAmerica;
WHEREAS, the Employment Agreement provides that DenAmerica
will grant to Cox an option to purchase shares of the common stock of DenAmerica
(the "Stock");
WHEREAS, DenAmerica considers it desirable and its best
interest that Cox be given an inducement to acquire a proprietary interest in
DenAmerica and added incentive to advance the interest of DenAmerica by
possessing an option to purchase shares of Stock.
NOW, THEREFORE, in consideration of the promises and of the
mutual covenants herein contained, it is agreed by and between the parties as
follows:
1. GRANT OF OPTION. Subject in all respects to the terms,
conditions and provisions of this Agreement, DenAmerica grants to Cox, as of the
date of this Agreement (the "Grant Date"), the right, privilege and option (the
"Option") to purchase 300,000 shares of Stock (the "Optioned Shares").
2. OPTION PRICE. The purchase price (the "Option Price") of
the Optioned Shares is as follows:
(a) The Option Price of 60,000 of the Optioned Shares (the
"Initial Option") is $3.00 per share of Stock.
(b) The Option Price of the remaining 240,000 Optioned
Shares (the "Vesting Options") is $4.00 per share of Stock.
3. VESTING OF OPTION. Optioned Shares that have vested may be
acquired in accordance with the terms of this Agreement at any time, and from
time to time, in whole or in part, until the Option expires as provided in
Section 5 hereof. The time at which the Optioned Shares vest and the Cox or his
permitted assignee(s) (each, an "Optionholder") may thereafter exercise this
Option with respect to such Optioned Shares shall be as follows:
<PAGE> 2
(a) The Initial Option shall vest and become exercisable
immediately.
(b) The Vesting Options shall vest and become exercisable
on the following dates, provided that Cox is employed by DenAmerica pursuant to
the Employment Agreement on each such date:
<TABLE>
<CAPTION>
NUMBER OF OPTIONS
DATE VESTED AND EXERCISABLE
---- ----------------------
<S> <C>
March 29, 1997 60,000
March 29, 1998 60,000
March 29, 1999 60,000
March 29, 2000 60,000
</TABLE>
Notwithstanding the foregoing, all Vesting Options shall vest and become
exercisable immediately upon the termination of Cox's employment for any reason
other than (i) voluntary termination by Cox pursuant to the Employment
Agreement; (ii) death; (iii) disability; or (iv) "for cause," as that term is
defined in the Employment Agreement.
4. EXERCISE OF OPTION. All or any portion of the vested
Optioned Shares may be purchased by an Optionholder upon written notice to
DenAmerica, addressed to DenAmerica at its principal place of business. Such
notice shall be signed by the Optionholder and shall state the election to
exercise the Option and the number of Optioned Shares with respect to which it
is being exercised. Such notice shall be accompanied by payment in full of the
Option Price for the number of shares of Stock being purchased. Payment may be
made in cash or by check or by tendering duly endorsed certificates representing
shares of Stock then owned by the Optionholder. In the sole discretion of
DenAmerica, an Optionholder may be provided with the election to pay for the
Option Price by having DenAmerica withhold, from the Stock otherwise issuable, a
portion of those shares of Stock with an aggregate fair market value equal to
that portion of the Option Price designated by the Optionholder (not to exceed
100 percent of the Option Price). Upon the exercise of the Option, DenAmerica
shall deliver, or cause to be delivered, to the Optionholder a certificate or
certificates representing the net shares of Stock purchased upon such exercise
as soon as practicable after payment for those shares has been received by
DenAmerica. All shares that are purchased and paid for in full upon exercise of
the Option shall be fully paid and non-assessable.
5. TERMINATION OF OPTION. This Option, to the extent not
previously exercised, shall terminate upon the tenth anniversary of the Grant
Date, or as otherwise set forth in this Agreement.
6. TERMINATION OF COX. If Cox' employment with DenAmerica is
terminated pursuant to the Employment Agreement, or as a result of the death or
disability of Cox, all Optioned Shares that are vested shall be exercisable for
a period of 30 days (one year in the case of a termination as the result of the
death or disability of Cox) after the expiration of the
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<PAGE> 3
Employment Period (as defined in the Employment Agreement) or until the stated
expiration date of the Option, whichever occurs first, by an Optionholder in
accordance with Section 4 hereof. Notwithstanding the foregoing, if Cox is
terminated "for cause" (as defined in the Employment Agreement), the Option
granted hereunder shall become immediately void and no longer exercisable.
7. NO PRIVILEGE OF STOCK OWNERSHIP. The Optionholder shall not
have any of the rights of a stockholder with respect to the Optioned Shares
until such Optionholder shall have exercised the option, paid the Option Price,
and received a stock certificate for the purchased shares of Stock.
8. COMPLIANCE WITH LAWS AND REGULATIONS. The exercise of this
Option and the issuance of the Stock upon such exercise shall be subject to
compliance by DenAmerica and each Optionholder with all applicable requirements
of law relating thereto and with all applicable regulations of any stock
exchange in which the shares of the Stock may be listed at the time of such
exercise and issuance. In connection with the exercise of an Option hereunder,
an Optionholder shall execute and deliver to DenAmerica such representations in
writing as may be requested by DenAmerica in order for it to comply with
applicable requirements of federal and state securities laws.
9. LIABILITY OF DENAMERICA. The inability of DenAmerica to
obtain approval from any regulatory body having authority deemed by DenAmerica
to be necessary to the lawful issuance and sale of any Stock pursuant to this
Agreement shall relieve DenAmerica of any liability with respect to the
nonissuance or sale of the Stock as to which such approval shall not have been
obtained. DenAmerica, however, shall use its best efforts to obtain all such
approvals.
10. CAPITAL ADJUSTMENTS. The number of Optioned Shares shall
be proportionately adjusted for any increase or decrease in the number of
outstanding shares of Stock of DenAmerica resulting from a subdivision or
consolidation of shares or any other capital adjustment or the payment of a
stock dividend or any other increase or decrease in the number of such shares
effected without DenAmerica's receipt of consideration therefor in money,
services or property.
11. MERGERS, ETC. If DenAmerica is the surviving corporation
in any merger or consolidation (not including a Corporate Transaction), the
Option granted herein shall pertain to and apply to the securities to which a
holder of the number of shares of Stock subject to the Option or Award would
have been entitled prior to the merger or consolidation.
12. CORPORATE TRANSACTION. In the event of stockholder
approval of a Corporate Transaction, as defined below, all unvested Options
shall automatically accelerate and immediately vest so that each outstanding
Option shall, one week prior to the specified effective date for the Corporate
Transaction, become fully exercisable for all of the Optioned Shares. Upon the
consummation of any Corporate Transaction, all Options shall, to the extent not
3
<PAGE> 4
previously exercised, terminate and cease to be outstanding. "Corporate
Transaction" shall mean (a) a merger or consolidation in which DenAmerica is not
the surviving entity or (b) any reverse merger in which DenAmerica is the
surviving entity.
13. ASSIGNMENT. The right to acquire Stock under this
Agreement may not be assigned, encumbered or otherwise transferred by an
Optionholder other than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order.
14. SECURITIES RESTRICTIONS
(a) LEGEND ON CERTIFICATES. All certificates representing
shares of Stock issued hereunder shall be endorsed with a legend reading as
follows:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
ARE `RESTRICTED SECURITIES' AS DEFINED BY RULE 144 UNDER THAT
ACT. THE SHARES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT REGISTERING THE SHARES UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR, IN LIEU THEREOF, AN OPINION OF COUNSEL
FOR THIS COMPANY TO THE EFFECT THAT REGISTRATION IS NOT
REQUIRED UNDER THAT ACT.
(b) PRIVATE OFFERING FOR INVESTMENT ONLY. If the shares to
be issued to an Optionholder upon the exercise of any Option have not been
registered under the Securities Act of 1933, as amended (the "1933 Act"), the
Arizona Securities Act (the "Arizona Act") or the securities laws of any other
jurisdiction, those shares will be "restricted securities" within the meaning of
Rule 144 under the 1933 Act and must be held indefinitely without any transfer,
sale or other disposition unless (a) the shares are subsequently registered
under the 1933 Act, the Arizona Act and the securities laws of any other
applicable jurisdiction, or (b) the Optionholder obtains an opinion of counsel
which is satisfactory to counsel for DenAmerica that the shares may be sold in
reliance on an exemption from registration requirements. By the act of accepting
an Option, Cox agrees (i) that any shares of Stock acquired will be solely for
investment and not with any intention to resell or redistribute those shares and
(ii) such intention will be confirmed by an appropriate certificate at the time
the Stock is acquired if requested by DenAmerica. The neglect or failure to
execute such a certificate, however, shall not limit or negate the foregoing
agreement.
(c) REGISTRATION STATEMENT. If a registration statement
covering the shares of Stock issuable hereunder as filed under the Securities
Exchange Act of 1933, as amended, and as declared effective by the Securities
Exchange Commission (the "Registration"),
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<PAGE> 5
the provisions of Sections 14(a) and (b) shall terminate during the period of
time that such registration statement, as periodically amended, remains
effective.
15. TAX WITHHOLDING.
(a) GENERAL. DenAmerica's obligation to deliver Stock
under this Agreement shall be subject to Cox' satisfaction of all applicable
federal, state and local income tax withholding requirements.
(b) SHARES TO PAY FOR WITHHOLDING. DenAmerica may, in its
discretion and in accordance with the provisions of this Section 15(b) and such
supplemental rules as it may from time to time adopt (including any applicable
safe-harbor provisions of SEC Rule 16b-3), provide Cox with the right to use
shares of Stock in satisfaction of all or part of the federal, state and local
income tax liabilities incurred by Cox in connection with the receipt of Stock
("Taxes"). Such right may be provided to Cox in either or both of the following
formats:
(i) STOCK WITHHOLDING. Cox may be provided with the
election to have DenAmerica withhold, from the Stock otherwise issuable, a
portion of those shares of Stock with an aggregate fair market value equal to
the percentage of the applicable Taxes (not to exceed 100 percent) designated by
Cox.
(ii) STOCK DELIVERY. DenAmerica may, in its
discretion, provide Cox with the election to deliver to DenAmerica, at the time
the Option is exercised, one or more shares of Stock previously acquired by Cox
(other than pursuant to the transaction triggering the Taxes) with an aggregate
fair market value equal to the percentage of the taxes incurred in connection
with such Option exercise (not to exceed 100 percent) designated by Cox.
16. BINDING EFFECT. This agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
17. DEFINED TERMS. All capitalized terms herein which are not
otherwise defined therein shall have the same meaning ascribed to such terms in
the Employment Agreement.
18. NOTICES. Any notice required to be given or delivered to
DenAmerica under the terms of this Agreement shall be in writing and addressed
to DenAmerica in care of the Corporate Secretary at its principal corporate
offices. Any notice required to be given or delivered to Cox at the address
indicated on the signature page hereto. Any permitted assignee hereunder shall
notify the other party hereto of the permitted assignee's address for purposes
of this notice provision. All notices shall be deemed to have been given or
delivered upon personal delivery or upon deposit in the U.S. mail, postage
prepaid return receipt requested, and properly addressed to the party to be
notified.
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<PAGE> 6
19. INTEGRATION AND MODIFICATION. This Agreement and the
Employment Agreement embody the full understanding of the parties with respect
to the subject matter hereof, superseding any and all prior agreements, and no
amendment or modification thereof shall be effective unless the same shall be in
writing and signed by both of said parties.
20. GOVERNING LAW. Except as the corporate law of the State of
Georgia expressly applies hereto, this Agreement shall be construed in
accordance with, and governed by, the laws of the State of Arizona, without
regard to application of conflicts of law principles.
21. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which,
taken together, shall constitute one and the same instrument.
IN WITNESS WHEREOF the parties hereto have executed this
Agreement or caused it to be executed on the day and year first above written.
DENAMERICA CORP.
By:/s/ Jack M. Lloyd
-------------------------
Name:Jack M. Lloyd
Its: Chief Executive Officer
/s/ William G. Cox
----------------------------
WILLIAM G. COX
Address:
2601 N. Val Vista
Mesa, Arizona 85213
6
<PAGE> 1
EXHIBIT 10.109
DENAMERICA CORP.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT ("Agreement") is made as of the
29th day of April, 1996, by and between DENAMERICA CORP., a Georgia corporation
formerly known as American Family Restaurants, Inc., ("DenAmerica"), and TODD S.
BROWN ("Brown").
WHEREAS, Brown currently serves as Vice President, Chief
Financial Officer, and Treasurer of DenAmerica; and
WHEREAS, Brown is employed by DenAmerica pursuant to an
employment agreement effective as of September 30, 1994, between Denwest
Restaurant Corp. and Brown, as subsequently amended (the "Employment
Agreement"); and
WHEREAS, DenAmerica considers it desirable and its best
interest that Brown be given an inducement to acquire a proprietary interest in
DenAmerica and added incentive to advance the interest of DenAmerica by
possessing an option to purchase shares of the common stock of DenAmerica (the
"Stock").
NOW, THEREFORE, in consideration of the promises and of the
mutual covenants herein contained, it is agreed by and between the parties as
follows:
1. GRANT OF OPTION. Subject in all respects to the terms,
conditions and provisions of this Agreement, DenAmerica grants to Brown, as of
the date of this Agreement (the "Grant Date"), the right, privilege and option
(the "Option") to purchase 24,800 shares of Stock (the "Optioned Shares").
2. OPTION PRICE. The purchase price (the "Option Price") of
the Optioned Shares is $4.00 per share of Stock.
3. VESTING OF OPTION. Optioned Shares that have vested may be
acquired in accordance with the terms of this Agreement at any time, and from
time to time, in whole or in part, until the Option expires as provided in
Section 5 hereof. The time at which the Optioned Shares vest and Brown or his
permitted assignee(s) (each, an "Optionholder") may thereafter exercise this
Option with respect to such Optioned Shares shall be as follows:
<PAGE> 2
<TABLE>
<CAPTION>
NUMBER OF OPTIONS
DATE VESTED AND EXERCISABLE
---- ----------------------
<S> <C>
April 29, 1996 4,960
April 29, 1997 4,960
April 29, 1998 4,960
April 29, 1999 4,960
April 29, 2000 4,960
</TABLE>
Notwithstanding the foregoing, all Optioned Shares shall vest and become
exercisable immediately upon the termination of Brown's employment for any
reason other than (i) voluntary termination by Brown pursuant to the Employment
Agreement; (ii) death; (iii) disability; or (iv) for "Cause," as that term is
defined in the Employment Agreement.
4. EXERCISE OF OPTION. All or any portion of the vested
Optioned Shares may be purchased by an Optionholder upon written notice to
DenAmerica, addressed to DenAmerica at its principal place of business. Such
notice shall be signed by the Optionholder and shall state the election to
exercise the Option and the number of Optioned Shares with respect to which it
is being exercised. Such notice shall be accompanied by payment in full of the
Option Price for the number of shares of Stock being purchased. Payment may be
made in cash or by check or by tendering duly endorsed certificates representing
shares of Stock then owned by the Optionholder. In the sole discretion of
DenAmerica, an Optionholder may be provided with the election to pay for the
Option Price by having DenAmerica withhold, from the Stock otherwise issuable, a
portion of those shares of Stock with an aggregate fair market value equal to
that portion of the Option Price designated by the Optionholder (not to exceed
100 percent of the Option Price). Upon the exercise of the Option, DenAmerica
shall deliver, or cause to be delivered, to the Optionholder a certificate or
certificates representing the net shares of Stock purchased upon such exercise
as soon as practicable after payment for those shares has been received by
DenAmerica. All shares that are purchased and paid for in full upon exercise of
the Option shall be fully paid and non-assessable.
5. TERMINATION OF OPTION. This Option, to the extent not
previously exercised, shall terminate upon the tenth anniversary of the Grant
Date, or as otherwise set forth in this Agreement.
6. TERMINATION OF BROWN. If Brown's employment with DenAmerica
is terminated pursuant to the Employment Agreement, or as a result of the death
or disability of Brown, all Optioned Shares that are vested shall be exercisable
for a period of 30 days (one year in the case of a termination as the result of
the death or disability of Brown) after the expiration of the Employment Period
(as defined in the Employment Agreement) or until the stated expiration date of
the Option, whichever occurs first, by an Optionholder in accordance with
Section 4 hereof. Notwithstanding the foregoing, if Brown is terminated for
"Cause" (as defined in the Employment Agreement), the Option granted hereunder
shall become immediately void and no longer exercisable.
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<PAGE> 3
7. NO PRIVILEGE OF STOCK OWNERSHIP. The Optionholder shall not
have any of the rights of a stockholder with respect to the Optioned Shares
until such Optionholder shall have exercised the option, paid the Option Price,
and received a stock certificate for the purchased shares of Stock.
8. COMPLIANCE WITH LAWS AND REGULATIONS. The exercise of this
Option and the issuance of the Stock upon such exercise shall be subject to
compliance by DenAmerica and each Optionholder with all applicable requirements
of law relating thereto and with all applicable regulations of any stock
exchange in which the shares of the Stock may be listed at the time of such
exercise and issuance. In connection with the exercise of an Option hereunder,
an Optionholder shall execute and deliver to DenAmerica such representations in
writing as may be requested by DenAmerica in order for it to comply with
applicable requirements of federal and state securities laws.
9. LIABILITY OF DENAMERICA. The inability of DenAmerica to
obtain approval from any regulatory body having authority deemed by DenAmerica
to be necessary to the lawful issuance and sale of any Stock pursuant to this
Agreement shall relieve DenAmerica of any liability with respect to the
nonissuance or sale of the Stock as to which such approval shall not have been
obtained. DenAmerica, however, shall use its best efforts to obtain all such
approvals.
10. CAPITAL ADJUSTMENTS. The number of Optioned Shares shall
be proportionately adjusted for any increase or decrease in the number of
outstanding shares of Stock of DenAmerica resulting from a subdivision or
consolidation of shares or any other capital adjustment or the payment of a
stock dividend or any other increase or decrease in the number of such shares
effected without DenAmerica's receipt of consideration therefor in money,
services or property.
11. MERGERS, ETC. If DenAmerica is the surviving corporation
in any merger or consolidation (not including a Corporate Transaction), the
Option granted herein shall pertain to and apply to the securities to which a
holder of the number of shares of Stock subject to the Option would have been
entitled prior to the merger or consolidation.
12. CORPORATE TRANSACTION. In the event of stockholder
approval of a Corporate Transaction, as defined below, all unvested Options
shall automatically accelerate and immediately vest so that each outstanding
Option shall, one week prior to the specified effective date for the Corporate
Transaction, become fully exercisable for all of the Optioned Shares. Upon the
consummation of any Corporate Transaction, all Options shall, to the extent not
previously exercised, terminate and cease to be outstanding. "Corporate
Transaction" shall mean (a) a merger or consolidation in which DenAmerica is not
the surviving entity or (b) any reverse merger in which DenAmerica is the
surviving entity.
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<PAGE> 4
13. ASSIGNMENT. The right to acquire Stock under this
Agreement may not be assigned, encumbered or otherwise transferred by an
Optionholder other than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order.
14. SECURITIES RESTRICTIONS
(a) LEGEND ON CERTIFICATES. All certificates
representing shares of Stock issued hereunder shall be endorsed with a legend
reading as follows:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
ARE `RESTRICTED SECURITIES' AS DEFINED BY RULE 144 UNDER THAT
ACT. THE SHARES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT REGISTERING THE SHARES UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR, IN LIEU THEREOF, AN OPINION OF COUNSEL
FOR THIS COMPANY TO THE EFFECT THAT REGISTRATION IS NOT
REQUIRED UNDER THAT ACT.
(b) PRIVATE OFFERING FOR INVESTMENT ONLY. If the
shares to be issued to an Optionholder upon the exercise of any Option have not
been registered under the Securities Act of 1933, as amended (the "1933 Act"),
the Arizona Securities Act (the "Arizona Act") or the securities laws of any
other jurisdiction, those shares will be "restricted securities" within the
meaning of Rule 144 under the 1933 Act and must be held indefinitely without any
transfer, sale or other disposition unless (a) the shares are subsequently
registered under the 1933 Act, the Arizona Act and the securities laws of any
other applicable jurisdiction, or (b) the Optionholder obtains an opinion of
counsel which is satisfactory to counsel for DenAmerica that the shares may be
sold in reliance on an exemption from registration requirements. By the act of
accepting an Option, Brown agrees (i) that any shares of Stock acquired will be
solely for investment and not with any intention to resell or redistribute those
shares and (ii) such intention will be confirmed by an appropriate certificate
at the time the Stock is acquired if requested by DenAmerica. The neglect or
failure to execute such a certificate, however, shall not limit or negate the
foregoing agreement.
(c) REGISTRATION STATEMENT. If a registration
statement covering the shares of Stock issuable hereunder as filed under the
Securities Exchange Act of 1933, as amended, and as declared effective by the
Securities Exchange Commission (the "Registration"), the provisions of Sections
14(a) and (b) shall terminate during the period of time that such registration
statement, as periodically amended, remains effective.
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<PAGE> 5
15. TAX WITHHOLDING.
(a) GENERAL. DenAmerica's obligation to deliver Stock
under this Agreement shall be subject to Brown's satisfaction of all applicable
federal, state and local income tax withholding requirements.
(b) SHARES TO PAY FOR WITHHOLDING. DenAmerica may, in
its discretion and in accordance with the provisions of this Section 15(b) and
such supplemental rules as it may from time to time adopt (including any
applicable safe-harbor provisions of SEC Rule 16b-3), provide Brown with the
right to use shares of Stock in satisfaction of all or part of the federal,
state and local income tax liabilities incurred by Brown in connection with the
receipt of Stock ("Taxes"). Such right may be provided to Brown in either or
both of the following formats:
(i) STOCK WITHHOLDING. Brown may be provided
with the election to have DenAmerica withhold, from the Stock otherwise
issuable, a portion of those shares of Stock with an aggregate fair market value
equal to the percentage of the applicable Taxes (not to exceed 100 percent)
designated by Brown.
(ii) STOCK DELIVERY. DenAmerica may, in its
discretion, provide Brown with the election to deliver to DenAmerica, at the
time the Option is exercised, one or more shares of Stock previously acquired by
Brown (other than pursuant to the transaction triggering the Taxes) with an
aggregate fair market value equal to the percentage of the taxes incurred in
connection with such Option exercise (not to exceed 100 percent) designated by
Brown.
16. BINDING EFFECT. This agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
17. DEFINED TERMS. All capitalized terms herein which are not
otherwise defined therein shall have the same meaning ascribed to such terms in
the Employment Agreement.
18. NOTICES. Any notice required to be given or delivered to
DenAmerica under the terms of this Agreement shall be in writing and addressed
to DenAmerica in care of the Corporate Secretary at its principal corporate
offices. Any notice required to be given or delivered to Brown at the address
indicated on the signature page hereto. Any permitted assignee hereunder shall
notify the other party hereto of the permitted assignee's address for purposes
of this notice provision. All notices shall be deemed to have been given or
delivered upon personal delivery or upon deposit in the U.S. mail, postage
prepaid return receipt requested, and properly addressed to the party to be
notified.
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<PAGE> 6
19. INTEGRATION AND MODIFICATION. This Agreement and the
Employment Agreement embody the full understanding of the parties with respect
to the subject matter hereof, superseding any and all prior agreements, and no
amendment or modification thereof shall be effective unless the same shall be in
writing and signed by both of said parties.
20. GOVERNING LAW. Except as the corporate law of the State of
Georgia expressly applies hereto, this Agreement shall be construed in
accordance with, and governed by, the laws of the State of Arizona, without
regard to application of conflicts of law principles.
21. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which,
taken together, shall constitute one and the same instrument.
IN WITNESS WHEREOF the parties hereto have executed this
Agreement or caused it to be executed on the day and year first above written.
DENAMERICA CORP.
By:
-----------------------------
Name:
Its:
/s/ Todd S. Brown
--------------------------------
TODD S. BROWN
Address:
6
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
DenAmerica Corp. on Form S-8 of our report dated March 29, 1996 (except for Note
16, as to which the date is May 31, 1996), appearing in the Transition Report on
Form 10-K of DenAmerica Corp. for the year ended December 27, 1995.
DELOITTE & TOUCHE LLP
August 7, 1996
