As filed with the Securities and Exchange Commission on May 15, 1996.
Registration No. 333-____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
450 FIFTH STREET N.W.
WASHINGTON, D.C. 20549
_______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________________
SCHLOTZSKY'S, INC.
(Exact name of registrant as specified in its charter)
TEXAS 74-2654208
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
200 WEST FOURTH STREET 78701
AUSTIN, TEXAS (Zip Code)
(Address of Principal Executive Offices)
SCHLOTZSKY'S, INC.
1993 STOCK OPTION PLAN
1995 NONEMPLOYEE DIRECTORS STOCK OPTION PLAN
(Full title of the plan)
CHARLES E. HARVEY, JR. COPY TO:
EXECUTIVE VICE PRESIDENT AND PHILLIP M. SLINKARD, ESQ.
CHIEF FINANCIAL OFFICER HUGHES & LUCE, L.L.P.
200 WEST FOURTH STREET 111 CONGRESS AVENUE
AUSTIN, TEXAS 78701 SUITE 900
(512) 469-7500 AUSTIN, TEXAS 78701
(Name, address and telephone number, (512) 482-6836
including area code, of agent for service)
_______________________
CALCULATION OF REGISTRATION FEE
================================================================================
PROPOSED
PROPOSED MAXIMUM
TITLE OF CLASS AMOUNT MAXIMUM AGGREGATE AMOUNT OF
OF SECURITIES TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2)(3) PRICE(2)(3) FEE(3)
- --------------------------------------------------------------------------------
Shares of Common Stock,
no par value per share.. 680,000 $11.25 $6,190,311 $2,134.42
================================================================================
(1) Pursuant to Rule 416 of the Securities Act of 1933 (the "Securities
Act"), this Registration Statement is deemed to include additional shares of
Common Stock issuable under the terms of the 1993 Stock Option Plan and the 1995
Non-Employee Directors Stock Option Plan to prevent dilution resulting from any
future stock split, stock dividend or similar transaction.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Calculated pursuant to Rule 457(c) and (h) of the Securities Act.
Accordingly, the price per share of the Common Stock offered hereunder pursuant
to the 1993 Stock Option Plan and the 1995 Non-Employee Directors Stock Option
Plan is based on (i) 70,105 shares of Common Stock originally reserved for
issuance under the 1993 Stock Option Plan and the 1995 Non-Employee Directors
Stock Option Plan and that are not currently subject to outstanding Stock
Options, at a price per share of $11.25, which is based upon the average bid and
asked price of the Common Stock on NASDAQ on May 9, 1996; and (ii) the following
609,895 shares of Common Stock reserved for issuance under the 1993 Stock Option
Plan and the 1995 Non-Employee Directors Stock Option Plan subject to Stock
Options already granted thereunder at the following prices:
No. of Shares of Common Stock Exercise Price
Reserved for Issuance Per Share
- ------------------------------- --------------
113,281 $ 5.60
277,565 8.00
2,500 9.50
10,000 10.50
56,563 11.00
55,861 11.20
1,000 11.50
5,000 11.75
78,125 12.80
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
EXPLANATORY NOTE
The information required by Items 1 and 2 of Part I of Form S-8 to be
contained in the Section 10(a) prospectus is omitted from this Registration
Statement on Form S-8 in accordance with Rule 428 of the Securities Act of 1933,
as amended (the "Securities Act"), and the Note to Part I of Form S-8.
I-2
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The registrant hereby incorporates by reference in this Registration
Statement the following documents previously filed by the registrant with the
Securities and Exchange Commission (the "Commission"):
(1) the registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995;
(2) the registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996; and
(3) the descriptions of the Common Stock, no par value per share, of the
registrant (the "Common Stock") set forth in the registration statement filed
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and all amendments and reports which have been filed for the
purpose of updating such descriptions.
All documents filed by the registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the date
of this Registration Statement, shall be deemed to be incorporated herein by
reference and to be a part hereof from the date of the filing of such documents
until such time as there shall have been filed a post-effective amendment that
indicates that all securities offered hereby have been sold or that deregisters
all securities remaining unsold at the time of such amendment.
ITEM 4. DESCRIPTION OF SECURITIES.
The information required by this item is not applicable to this
Registration Statement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The information required by this item is not applicable to this
Registration Statement.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Registrant has authority under Articles 2.02 (A) (16) and 2.02-1 of the
Texas Business Corporation Act (the "TBCA") to indemnify its directors and
officers to the extent provided for in such statute. The Registrant's Articles
of Incorporation and Bylaws allow indemnification of directors and officers to
the extent permitted by said provisions of the TBCA.
The TBCA provides in part that a corporation may indemnify a director or
officer or other person who was, is, or is threatened to be made a named
defendant or respondent in a proceeding because the person is or was a director,
officer, employee or agent of the corporation, if it is determined that (i) such
person conducted himself in good faith; (ii) reasonably believed, in the case of
conduct in his official capacity as a director or officer of the corporation,
that his conduct was in the corporation's best interests, and, in all other
cases, that his conduct was at least not opposed to the corporation's best
II-1
interest; and (iii) in the case of any criminal proceeding, had no reasonable
cause to believe that his conduct was unlawful.
A corporation may indemnify a person under the TBCA against judgments,
penalties (including excise and similar taxes), fines, settlements, and
reasonable expenses actually incurred by the person in connection with the
proceeding. If the person is found liable to the corporation or is found liable
on the basis that personal benefit was improperly received by the person, the
indemnification is limited to reasonable expenses actually incurred by the
person in connection with the proceeding, and shall not be made in respect of
any proceeding in which the person shall have been found liable for willful or
intentional misconduct in the performance of his duty to the corporation.
A corporation may also pay or reimburse expenses incurred by a person in
connection with his appearance as a witness or other participation in a
proceeding at a time when he is not a named defendant or respondent in the
proceeding.
Reference is also made to the Articles of Incorporation, which limit or
eliminate a director's liability for monetary damages to the Registrant or its
shareholders for acts or omissions in the director's capacity as a director,
except that the articles of incorporation do not eliminate the liability of a
director for (i) a breach of the director's duty of loyalty to the Registrant or
its shareholders, (ii) an act or omission not in good faith that constitutes a
breach of duty of the director to the Registrant of an act or omission that
involves intentional misconduct or a knowing violation of the law, (iii) a
transaction from a director received an improper benefit, whether or not the
benefit resulted from an action taken within the scope of the director's office,
or (iv) an act or omission for which the liability of a director is expressly
provided for by an applicable statute. The Registrant's Bylaws further provide
that the Registrant may indemnify its officers and directors to the fullest
extent permitted by law.
Pursuant to a policy of directors' and officers' liability and corporation
reimbursement insurance, with total annual limits of $3,000,000 the registrant's
officers and directors are insured, subject to the limits, retention, exceptions
and other terms and conditions of such policy, against liability for any actual
or alleged breach of duty, neglect, error, misstatement, misleading statement,
omission or other act done or wrongfully attempted while acting in their
capacities as directors or officers of the registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The information required by this item is not applicable to this
Registration Statement.
II-2
ITEM 8. EXHIBITS.
The following documents are filed as a part of this Registration Statement.
Exhibit
Number Description of Exhibit
------ ----------------------
* 4.1 - Articles of Incorporation of the Registrant,
as amended
* 4.2 - Bylaws of the Registrant, as amended
* 4.3 - Schlotzsky's, Inc. 1993 Amended and Restated Stock Option Plan
of the Registrant and form of Incentive Stock Option Agreement
* 4.4 - Schlotzsky's 1995 Non-Employee Directors Stock Option Plan, and
form of Stock Option Agreement.
4.5 - Form of Non-Qualified Option Agreement under the Registrant's
1993 Amended and Restated Stock Plan.
5.1 - Opinion of Hughes & Luce, LLP regarding legality of securities
being registered.
23.1 - Consent of Hughes & Luce, LLP (included in the firm's opinion
filed as Exhibit 5.1).
23.2 - Consent of Independent Accountant.
24.1 - Power of Attorney (see signature page of this Registration
Statement).
* Filed as an Exhibit to the registrant's Form S-1
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 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;
(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 that 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, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration
II-3
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
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 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 of 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-4
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all 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 Austin, Texas, on May 13, 1996:
SCHLOTZSKY'S, INC.
By: /s/ JOHN C. WOOLEY
-----------------------
John C. Wooley
Chairman of the Board
and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints John C. Wooley and Charles E. Harvey,
Jr., 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 to this
Registration Statement, and to file the same with all exhibits, thereto, and all
documents in connection therewith, with the 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 either 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, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ JOHN C. WOOLEY Chairman of the Board and President May 13, 1996
- --------------------------- (Principal Executive Officer)
John C. Wooley
/s/ CHARLES E. HARVEY, JR. Executive Vice President and Chief May 13, 1996
- --------------------------- Financial Officer (Principal
Charles E. Harvey, Jr. Financial Officer)
/s/ JEFFREY J. WOOLEY Senior Vice President, Secretary, May 13, 1996
- --------------------------- General Counsel, Director
Jeffrey J. Wooley
/s/ MONICA GILL Controller, Treasurer (Principal May 13, 1996
- --------------------------- Accounting Officer)
Monica Gill
II-5
/s/ JOHN L. HILL, JR. Director May 13, 1996
- ---------------------------
John L. Hill, Jr.
/s/ AZIE TAYLOR MORTON Director May 13, 1996
- ---------------------------
Azie Taylor Morton
/s/ JOHN M. ROSILLO Director May 13, 1996
- ---------------------------
John M. Rosillo
/s/ RAYMOND A. RODRIGUEZ Director May 13, 1996
- ---------------------------
Raymond A. Rodriguez
/s/ FLOOR MOUTHAAN Director May 13, 1996
- ---------------------------
Floor Mouthaan
II-6