As filed with the Securities and Exchange Commission on February 26, 2001
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------------------------------
FURR'S RESTAURANT GROUP, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-2350724
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
3001 E. PRESIDENT GEORGE BUSH HIGHWAY
SUITE 200
RICHARDSON, TX 75082-2800
(Address of registrant's principal executive offices)
FURR'S RESTAURANT GROUP, INC.
2001 STOCK BONUS PLAN
(Full title of Plan)
PAUL HARGETT
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
FURR'S RESTAURANT GROUP, INC.
3001 E. President George Bush Highway
Suite 200
RICHARDSON, TX 75082-2800
(972) 808-2923
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With copies to:
MICHAEL W. TANKERSLEY
BRACEWELL & PATTERSON, L.L.P.
LINCOLN PLAZA
500 N. AKARD STREET, SUITE 4000
DALLAS, TEXAS 75201-3387
(214) 758-1000
---------------------------
CALCULATION OF REGISTRATION FEE
========================================================================================================================
PROPOSED
MAXIMUM PROPOSED AMOUNT OF
TITLE OF AMOUNT TO OFFERING MAXIMUM AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED (1) PRICE PER SHARE (2) OFFERING PRICE (2) FEE
- ------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 per share 100,000 $1.91 191,000 $47.75
========================================================================================================================
(1) Pursuant to Rule 457(h)(1), the registration fee is calculated with
respect to shares to be purchased pursuant to the Furr's Restaurant
Group, Inc. 2001 Stock Bonus Plan (the "Plan"). In addition, pursuant
to Rule 416(a) of the Securities Act of 1933, as amended, this
Registration Statement also covers an indeterminate amount of interests
to be offered or sold pursuant to the Plan which is described herein.
(2) The proposed maximum offering price per share and the proposed maximum
aggregate offering price are (a) calculated, pursuant to Rule
457(h)(1), by multiplying the number of shares to be registered by the
average of the high and low prices of a share of Common Stock, as
reported on The American Stock Exchange LLC on February 9, 2001, which
was $1.91, and (b) provided herein for the sole purposes of determining
the registration fee.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
*The information required by Items 1 and 2 of Part I of Form S-8 is omitted from
this Registration Statement in accordance with the Note to Part 1 of Form S-8
and Rule 428 promulgated under the Securities Act of 1933, as amended (the
"Securities Act").
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Furr's Restaurant Group, Inc., a Delaware corporation (the "Company"),
hereby incorporates by reference into this registration statement (the
"Registration Statement"):
(i) the Company's Annual Report on Form 10-K for the fiscal year
ended December 28, 1999, as filed with the Securities and
Exchange Commission (the "Commission") on March 27, 2000;
(ii) the Company's Quarterly Report on Form 10-Q for the quarter
ended September 26, 2000, as filed with the Commission on
November 13, 2000;
(iii) the Company's Quarterly Report on Form 10-Q for the quarter
ended June 27, 2000, as filed with the Commission on August
11, 2000;
(iv) the Company's Quarterly Report on Form 10-Q for the quarter
ended March 28, 2000, as filed with the Commission on May 12,
2000;
(v) the description of the Company's Common Stock, par value $.01
per share, contained in the Registration Statement on Form 8-A
as filed with the Commission on August 9, 2000.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the filing date of this Registration
Statement and prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities offered 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.
The Company will provide, without charge, to each participant in the
Plan, on written or oral request of such person, a copy of any or all of the
documents (without exhibits, unless such exhibits are specifically incorporated
by reference), incorporated by reference pursuant to this Item 3. All such
requests should be directed to Furr's Restaurant Group, Inc., 3001 E. President
George Bush Highway, Suite 200, Richardson, Texas 75082; Attention: Mr. Paul
Hargett, or by telephone at such address: (972) 808-2923.
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 Company is a Delaware corporation. Section 102(b)(7) of the General
Corporation Law of Delaware enables a Delaware corporation to provide in its
certificate of incorporation, and the Company has so provided in its Amended and
Restated Certificate of Incorporation ("Certificate of Incorporation"), for the
elimination or limitation of the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that a director's liability is not
eliminated or limited: (1) for any breach of the director's duty of loyalty to
the corporation or its stockholders; (2) for acts or omissions not in good faith
or which involve an intentional misconduct or a knowing violation of law; (3)
under Section 174 of the General Corporation Law of Delaware (which imposes
liability on directors for unlawful payment of dividends or unlawful stock
purchases or redemptions); or (4) for any transaction from which the director
derived an improper personal benefit. The Certificate of Incorporation further
provides that if the Delaware General Corporation Law is amended to authorize
the further elimination or limitation of the liability of directors, then the
liability of a director shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as amended.
Section 145 of the General Corporation Law of Delaware empowers a
corporation to indemnify any person who was or is a party or witness or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he or she is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise.
Depending on the character of the proceeding, a corporation may
indemnify against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
such action, suit or proceeding if the person indemnified acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
If the person indemnified is not wholly successful
3
in such action, suit or proceeding, but is successful, on the merits or
otherwise, in one or more but less than all claims, issues or matters in such
proceeding, he or she may be indemnified against expenses actually and
reasonably incurred in connection with each successfully resolved claim,
issue or matter. In the case of an action or suit by or in the right of the
corporation, no indemnification may be made in respect to any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine that despite
the adjudication of liability such person is fairly and reasonably entitled
to indemnity for such expenses which the court shall deem proper. Section 145
provides that to the extent a director, officer, employee or agent of a
corporation has been successful in the defense of any action, suit or
proceeding referred to above or in the defense of any claim, issue or manner
therein, he or she shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
therewith.
The By-laws of the Company provide that, to the fullest extent
permitted by the General Corporation Law of the State of Delaware, the Company
shall indemnify any person who was or is a party or is threatened to be made a
party to any action, suit or proceeding of the type described above by reason of
the fact that he or she 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. No expenses will be paid in advance except, as authorized by the
Board of Directors, to a director or officer for expenses incurred while acting
in his or her capacity as a director or officer, who has delivered an
undertaking to the corporation to repay all amounts advanced if it should be
later determined that such director or officer was not entitled to
indemnification. The By-laws further provide that the above rights of
indemnification are not exclusive of any other rights of indemnification that a
director or officer may be entitled to from any other source.
Each current director has entered into an Indemnification Agreement by
and between the Company and such director pursuant to which the Company will
indemnify such director and hold such director harmless from any and all losses,
expenses and fines to the fullest extent authorized, permitted or not prohibited
(i) by the Delaware General Corporation Law or any other applicable law
(including judicial, regulatory or administrative interpretations or readings
thereof), (ii) the Certificate of Incorporation or By-laws as in effect on the
date of execution of the agreement or (iii) other statutory provision
authorizing such indemnification that is adopted after January 2, 1996. In the
event that after the date of the agreements the Company provides any greater
right of indemnification, in any respect, to any other person serving as an
officer or director of the Company, then such greater right of indemnification
shall inure to the benefit of the respective director and shall be deemed to be
incorporated in the relevant agreement as a basis for indemnity, at each
director's election, together with the indemnity expressly set forth therein.
The Company has purchased a directors and officers insurance policy
under which each director and certain officers of the Company are insured
against certain liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Amended and Restated Certificate of Incorporation of the
Company (incorporated by reference from Exhibit 3.1 of the
Company's Registration Statement on Form S-4, File No.
33-38978).
4.2 Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of the Company (incorporated by
reference from Annex D of the Prospectus included in the
Company's Registration Statement on Form S-4, File No.
33-92236).
4.3 Second Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of the Company (incorporated by
reference from the Company's Annual Report on Form 10-K for
the fiscal year ended January 2, 1996).
4.4 Third Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of the Company as filed with the
Secretary of State of Delaware on December 10, 1999
(incorporated by reference from Exhibit 3.5 to the Company's
Annual Report on Form 10-K for the fiscal year ended December
28, 1999, as filed with the Commission on March 27, 2000).
4.5 Fourth Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of the Company as filed with the
Secretary of State of Delaware on December 10, 1999
(incorporated by reference from Exhibit 3.6 to the Company's
Annual Report on Form 10-K for the fiscal year ended December
28, 1999, as filed with the Commission on March 27, 2000).
4.6 Restated By-laws of the Company (incorporated by reference
from Exhibit 3.1 to the Company's Quarterly Report on Form
10-Q for the quarter ended June 29, 1999, as filed with the
Commission on August 10, 1999).
4.7* Furr's Restaurant Group, Inc. 2001 Stock Bonus Plan.
5.1* Opinion of Bracewell & Patterson, L.L.P.
23.1* Consent of KPMG LLP.
23.3* Consent of Bracewell & Patterson, L.L.P. (included in Exhibit
5).
4
24.1* Power of Attorney (included on the signature page of this
Registration Statement).
*Filed Herewith.
ITEM 9. UNDERTAKINGS.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(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 a 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 or any material change to such
information in the registration statement;
Provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) of this
section 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 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, 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 a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the 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 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 Act and will
be governed by the final adjudication of such issue.
[SIGNATURE PAGE FOLLOWS]
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 Richardson, Texas on this 23rd day of February, 2001.
FURR'S/BISHOP'S, INCORPORATED
By: /s/ Phillip Ratner
-----------------------------------------
Phillip Ratner
PRESIDENT AND CHIEF
EXECUTIVE OFFICER
POWER OF ATTORNEY
We, the undersigned directors and officers of Furr's Restaurant Group,
Inc., constitute and appoint Phillip Ratner or Paul G. Hargett, or either of
them, our true and lawful attorneys and agents, to do any and all acts and
things in our name and on our behalf in our capacities as directors and
officers, and to execute any and all instruments for us and in our names in the
capacities indicated below, which said attorneys and agents, or either of them,
may deem necessary or advisable to enable said corporation to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission, in connection with the filing of this
Registration Statement, including specifically without limitation, power and
authority to sign for any of us, in our names in the capacities indicated below,
any and all amendments hereto, including post-effective amendments; and we do
each hereby ratify and confirm all that the said attorneys and agents, or either
of them, shall 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 indicated on February 23, 2001.
SIGNATURE TITLE
--------- -----
/s/ Damien W. Kovary Director, Chairman of the Board
- --------------------------------------------
Damien W. Kovary
/s/ Paul G. Hargett Executive Vice President and Chief Financial Officer
- --------------------------------------------
Paul G. Hargett
/s/ Robert W. Dangremond Director
- --------------------------------------------
Robert W. Dangremond
/s/ Margaret B. Hampton Director
- --------------------------------------------
Margaret B. Hampton
/s/ William J. Nightingale Director
- --------------------------------------------
William J. Nightingale
/s/ Max Pine Director
- --------------------------------------------
Max Pine
/s/ Barry W. Ridings Director
- --------------------------------------------
Barry W. Ridings
/s/ Phillip Ratner Director
- --------------------------------------------
Phillip Ratner
/s/ Robert W. Sullivan Director
- --------------------------------------------
Robert W. Sullivan
6
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
4.1 Amended and Restated Certificate of Incorporation of the Company
(incorporated by reference from Exhibit 3.1 of the Company's
Registration Statement on Form S-4, File No. 33-38978).
4.2 Certificate of Amendment to the Amended and Restated Certificate of
Incorporation of the Company (incorporated by reference from Annex D of
the Prospectus included in the Company's Registration Statement on Form
S-4, File No. 33-92236).
4.3 Second Certificate of Amendment to the Amended and Restated Certificate
of Incorporation of the Company (incorporated by reference from the
Company's Annual Report on Form 10-K for the fiscal year ended January
2, 1996).
4.4 Third Certificate of Amendment to the Amended and Restated Certificate
of Incorporation of the Company as filed with the Secretary of State of
Delaware on December 10, 1999 (incorporated by reference from Exhibit
3.5 to the Company's Annual Report on Form 10-K for the fiscal year
ended December 28, 1999, as filed with the Commission on March 27,
2000).
4.5 Fourth Certificate of Amendment to the Amended and Restated Certificate
of Incorporation of the Company as filed with the Secretary of State of
Delaware on December 10, 1999 (incorporated by reference from Exhibit
3.6 to the Company's Annual Report on Form 10-K for the fiscal year
ended December 28, 1999, as filed with the Commission on March 27,
2000).
4.6 Restated By-laws of the Company (incorporated by reference from Exhibit
3.1 to the Company's Quarterly Report on Form 10-Q for the quarter
ended June 29, 1999, as filed with the Commission on August 10, 1999).
4.7* Furr's Restaurant Group, Inc. 2001 Stock Bonus Plan.
5.1* Opinion of Bracewell & Patterson, L.L.P.
23.1* Consent of KPMG LLP.
23.3* Consent of Bracewell & Patterson, L.L.P. (included in Exhibit 5).
24.1* Power of Attorney (included on the signature page of this Registration
Statement).
*Filed Herewith
7