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As filed with the Securities and Exchange Commission on October 10, 1997.
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
450 FIFTH STREET N.W.
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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
(Full title of the plan)
MONICA GILL COPY TO:
CHIEF FINANCIAL OFFICER PHILLIP M. SLINKARD, ESQ.
200 WEST FOURTH STREET HUGHES & LUCE, L.L.P.
AUSTIN, TEXAS 78701 111 CONGRESS AVENUE
(512) 469-7500 SUITE 900
(Name, address and telephone number, AUSTIN, TEXAS 78701
including area code, of agent for service) (512) 482-6836
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF CLASS OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2)(3) OFFERING PRICE (2)(3) FEE(3)
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Shares of Common Stock, no
par value per share . . . . . 150,000 $19.69 $2,953,500 $895.00
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(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
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 is based on the average bid and asked
price of the Common Stock on NASDAQ on October 7, 1997.
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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.
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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, 1996;
(2) the registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1997; 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
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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 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.
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ITEM 8. EXHIBITS.
The following documents are filed as a part of this Registration
Statement.
Exhibit
Number Description of Exhibit
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* 4.1 -- Articles of Incorporation of the Registrant, as amended
* 4.2 -- Bylaws of the Registrant, as amended
4.3 -- Schlotzsky's, Inc. 1993 Third Amended and Restated Stock Option Plan of the
Registrant and form of Incentive Stock Option Agreement
4.5 -- Form of Non-Qualified Option Agreement under the Registrant's
1993 Third Amended and Restated Stock Option 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 Accountants.
24.1 -- Power of Attorney (see signature page of this Registration Statement).
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* 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 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.
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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.
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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 September 18, 1997:
SCHLOTZSKY'S, INC.
By: /s/ JOHN C. WOOLEY
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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 Monica Gill, each of
them, his or her true and lawful attorneys-in-fact and agents with full power
of substitution and resubstitution, for him or her and in his or her 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 or
she 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 or her
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
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/s/ JOHN C. WOOLEY Chairman of the Board and President
- -------------------------- (Principal Executive Officer) September 18, 1997
John C. Wooley
/s/ JEFFREY J. WOOLEY Senior Vice President, Secretary,
- -------------------------- General Counsel, Director September 18, 1997
Jeffrey J. Wooley
/s/ MONICA GILL Chief Financial Officer (Principal
- -------------------------- Financial Officer) September 18, 1997
Monica Gill
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/s/ JOHN L. HILL, JR. Director September 18, 1997
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John L. Hill, Jr.
/s/ AZIE TAYLOR MORTON Director September 18, 1997
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Azie Taylor Morton
/s/ JOHN M. ROSILLO Director September 18, 1997
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John M. Rosillo
/s/ RAYMOND A. RODRIGUEZ Director September 18, 1997
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Raymond A. Rodriguez
/s/ FLOOR MOUTHAAN Director September 18, 1997
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Floor Mouthaan
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INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit
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*4.1 -- Articles of Incorporation of the Registrant, as amended.
*4.2 -- Bylaws of the Registrant, as amended.
4.3 -- Schlotzsky's, Inc. 1993 Third Amended and Restated Stock Option Plan of the
Registrant and form of Incentive Stock Option Agreement.
4.5 -- Form of Non-Qualified Option Agreement under the Registrant's 1993 Third Amended and
Restated Stock Option 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 Accountants.
24.1 -- Power of Attorney (see signature page of this Registration Statement).
* Filed Previously
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