AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 22, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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U.S. FRANCHISE SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 58-2361501
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
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13 Corporate Square, Suite 250
Atlanta, Georgia 30326
(404) 321-4045
(Address of Principal Executive Offices) (Zip Code)
U.S. FRANCHISE SYSTEMS, INC. AMENDED AND RESTATED
1996 STOCK OPTION PLAN
U.S. FRANCHISE SYSTEMS, INC. 1996
STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
(Full titles of the plans)
Michael A. Leven
Chairman, President and Chief Executive Officer
U.S. Franchise Systems, Inc.
13 Corporate Square
Atlanta, Georgia 30329
(Name and address of agent for service)
(404) 321-4045
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE AGGREGATE OFFERING REGISTRATION FEE
Class A Common Stock,
par value $0.01 per share 198,000 $11.8125(1) $2,333,875(1) $689.97
Class A Common Stock,
par value $0.01 per share 129,000 (2) $13.50 $1,741,500 $513.74
Class A Common Stock,
par value $0.01 per share 800 (3) $10.50 $8,400 $2.40
Class A Common Stock,
par value $0.01 per share 14,300 (4) $10.38 $148,434 $43.79
Class A Common Stock,
par value $0.01 per share 500 (5) $10.12 $5,060 $1.49
Class A Common Stock,
par value $0.01 per share 10,000 (6) $10.00 100,000 $29.50
Class A Common Stock,
par value $0.01 per share 3,800 (7) $9.88 $37,544 $11.08
Class A Common Stock,
par value $0.01 per share 25,000 (8) $9.63 $240,750 $71.02
Class A Common Stock,
par value $0.01 per share 300 (9) $9.50 $2,850 $0.84
Class A Common Stock,
par value $0.01 per share 1,600(10) $9.25 $14,800 $4.37
Class A Common Stock,
par value $0.01 per share 5,100(11) $9.00 $45,900 $13.54
Class A Common Stock,
par value $0.01 per share 57,400(12) $8.13 $466,662 $137.67
Class A Common Stock,
par value $0.01 per share 4,200(13) $7.00 $29,400 $8.67
Total 450,000(14) $1,528.08
(1) Estimated solely for the purpose of computing the registration fee in
accordance with Rule 457(c) and 457(h) under the Securities Act of 1933, as
amended (the "Securities Act"). The Proposed Maximum Offering Price was
determined by averaging the high ($12) and low prices ($11 5/8) of the Class
A Common Stock, $.01 per share par value ("Class A Common Stock"), of U.S.
Franchise Systems, Inc. ("USFS") as reported by the NASDAQ National Market
System, the automated quotation system of the National Association of
Securities Dealers, Inc. on April 16, 1998.
(2) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$13.50.
(3) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$10.50.
(4) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$10.38.
(5) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$10.12.
(6) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$10.00.
(7) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$9.88.
(8) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$9.63.
(9) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$9.50.
(10) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$9.25.
(11) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$9.00.
(12) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$8.13.
(13) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$7.00.
(14) Consists of 325,000 shares of Class A Common Stock to be issued to certain
employees, consultants, advisors and other persons whose skills would be an
asset to U.S. Franchise Systems, Inc. or any of its subsidiaries upon the
exercise by such persons of options granted to them pursuant to the U.S.
Franchise Systems, Inc. 1996 Stock Option Plan and 125,000 shares of Class A
Common Stock to be issued to certain non-employee directors of U.S.
Franchise Systems, Inc. upon the exercise by such Directors of options
granted to them pursuant to the U.S. Franchise Systems, Inc. 1996 Stock
Option Plan for Non-Employee Directors.
EXPLANATORY NOTE
The Section 10(a) prospectuses being delivered by U.S. Franchise Systems,
Inc. (the "Company") to participants in the U.S. Franchise Systems, Inc. Amended
and Restated 1996 Stock Option Plan (the "Option Plan") and the U.S. Franchise
Systems, Inc. 1996 Stock Option Plan for Non-Employee Directors (the "Directors
Plan") as required by Rule 428 under the Securities Act of 1933, as amended (the
"Securities Act"), have been prepared in accordance with the requirements of
Form S-8 and relate to shares of Class A Common Stock, par value $0.01 per
share, of the Company (the "Class A Common Stock") which have been reserved for
issuance pursuant to the Option Plan and the Directors Plan. The information
regarding the Option Plan and the Directors Plan required in the Section 10(a)
prospectuses is included in documents being maintained and delivered by the
Company as required by Rule 428 under the Securities Act. The Company shall
provide to participants in the Option Plan and the Directors Plan a written
statement advising them of the availability without charge, upon written or oral
request, of documents incorporated by reference herein, as is required by Item 2
of Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by U.S. Franchise Systems, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 except Item 8: Financial Statements and Supplemental Data
(File No. 0-23941).
2. The Company's Current Report on Form 8-K dated March 12, 1998 (File No.
0-23941).
3. The Company's Current Report on Form 8-K dated April 22, 1998 (File No.
0-23941).
4. The description of the Company's Class A Common Stock, par value $0.01
per share, contained in the Registration Statement of U.S. Franchise Systems,
Inc. on Form 8-A, dated October 24, 1996, including any amendment or report
filed for the purpose of updating such description (File No. 0-28908).
All other documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Act of 1934, as amended, subsequent to the date of
this registration statement and prior to the filing of a post-effective
amendment which indicates that all securities registered hereby have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be 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
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145(a) of the General Corporation Law of the State of Delaware
provides that a Delaware corporation may indemnify any person who was or is a
party 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 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,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he 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 cause to believe his
conduct was unlawful.
Section 145(b) provides that a Delaware corporation may indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person acted in
any of the capacities set forth above, against expenses actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted under similar standards, except that no indemnification may be
made in respect of 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 in which such action or suit was brought shall determine that despite
the adjudication of liability, such person is fairly and reasonably entitled to
be indemnified for such expenses which the court shall deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful in the defense of any action, suit or proceeding
referred to in subsections (a) and (b) or in the defense of any claim, issue, or
matter therein, he shall be indemnified against expenses actually and reasonably
incurred by him in connection therewith; that indemnification provided for by
Section 145 shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled; and that the corporation may purchase and
maintain insurance on behalf of a director or officer of the corporation against
any liability asserted against him or incurred by him in any such capacity or
arising out of his status as such whether or not the corporation would have the
power to indemnify him against such liabilities under such Section 145.
Section 102(b)(7) of the General Corporation Law provides that a corporation
in its original certificate of incorporation or an amendment thereto validly
approved by stockholders may eliminate or limit personal liability of the
members of its board of directors or governing body for breach of a director's
fiduciary duty. However, no such provision may eliminate or limit the liability
of a director for breaching his duty of loyalty, failing to act in good faith,
engaging in intentional misconduct or knowingly violating a law, paying a
dividend or approving a stock repurchase which was illegal, or obtaining an
improper personal benefit. A provision of this type has no effect on the
availability of equitable remedies, such as injunction or rescission, for breach
of fiduciary duty. The Company's Charter contains such a provision.
The Company's Charter further provides that the Company shall indemnify its
officers and directors and, to the extent authorized by the Board of Directors,
employees and agents of the Company, to the fullest extent permitted by and in
the manner permissible under the laws of the State of Delaware.
In addition, the Company has entered into agreements (the "Indemnification
Agreements") with each of the directors of the Company pursuant to which the
Company has agreed to indemnify each director against claims, liabilities,
damages, expenses, losses, costs, penalties or amounts paid in settlement
(collectively, "Losses") incurred by such director and arising out of his
capacity as a director, officer, employee and/or agent of the Company to the
maximum extent permitted by applicable law. In addition, each director shall be
entitled to an advance of expenses to the maximum extent authorized or permitted
by law to meet the obligations indemnified against. The Indemnification
Agreements also obligate the Company to purchase and maintain insurance for the
benefit and on behalf of each of its directors insuring such director in or
arising out of his capacity as a director, officer, employee and/or agent of the
Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
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ITEM 8. EXHIBITS
EXHIBITS
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4.1 -- Certificate of Incorporation of the Company, as amended (incorporated by reference from the
Company's Registration Statement on Form S-4 (Registration No. 333-46185)).
4.2 -- By-laws of the Company (incorporated by reference from the Company's Registration Statement on Form
S-4 (Registration No. 333-46185)).
5 -- Opinion of Paul, Weiss, Rifkind, Wharton & Garrison, counsel to the Company, regarding the legality
of the Class A Common Stock being registered.
23.1 -- Consent of Deloitte & Touche LLP.
23.2 -- Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in Exhibit 5).
24 -- Power of Attorney (included on signature page).
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes: (i) 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 this registration statement
or any material change to such information in this registration statement; (ii)
that, for the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and (iii) 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, as amended, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended, that is incorporated
by reference in this 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, as amended, may be permitted to directors, officers and controlling
persons of the registrant pursuant to the registrant's Certificate of
Incorporation or by-laws, by contract, 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Atlanta, State of Georgia, on April 22, 1998.
U.S. FRANCHISE SYSTEMS, INC.
BY: /S/ MICHAEL A. LEVEN
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Michael A. Leven
CHAIRMAN, PRESIDENT AND CHIEF
EXECUTIVE OFFICER
We, The Undersigned Officers And Directors Of U.S. Franchise Systems, Inc.
Hereby Severally Constitute Michael A. Leven and Neal K. Aronson our true and
lawful attorneys, and each of them singly, with full power to sign for us and in
our names in the capacities indicated below, any and all amendments, including
post-effective amendments, to this registration statement, and generally do all
such things in our name and behalf in such capacities to enable U.S. Franchise
Systems, Inc. to comply with the applicable provisions of the Securities Act of
1933, as amended, and all requirements of the Securities and Exchange
Commission, and we hereby ratify and confirm our signatures as they may be
signed by our said attorney to any and all such amendments.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
SIGNATURES TITLE DATE
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Chairman, President, Chief
/s/ MICHAEL A. LEVEN Executive Officer and
- ------------------------------ Director (Principal April 22, 1998
Michael A. Leven Executive Officer)
Executive Vice President,
/s/ NEAL K. ARONSON Chief Financial Officer
- ------------------------------ and Director (Principal April 22, 1998
Neal K. Aronson Financial and Accounting
Officer)
/s/ DEAN S. ADLER Director
- ------------------------------ April 22, 1998
Dean S. Adler
/s/ IRWIN CHAFETZ Director
- ------------------------------ April 22, 1998
Irwin Chafetz
/s/ DOUGLAS G. GEOGA Director
- ------------------------------ April 22, 1998
Douglas G. Geoga
/s/ RICHARD D. GOLDSTEIN Director
- ------------------------------ April 22, 1998
Richard D. Goldstein
/s/ DAVID HAMAMOTO Director
- ------------------------------ April 22, 1998
David Hamamoto
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SIGNATURES TITLE DATE
- ------------------------------ --------------------------- -------------------
/s/ STEVEN ROMANIELLO Executive Vice President -
- ------------------------------ Franchise Sales and April 22, 1998
Steven Romaniello Development and Director
/s/ JEFFREY A. SONNENFELD Director
- ------------------------------ April 22, 1998
Jeffrey A. Sonnenfeld
/s/ BARRY STERNLICHT Director
- ------------------------------ April 22, 1998
Barry Sternlicht
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INDEX TO EXHIBITS
EXHIBITS
4.1 -- Certificate of Incorporation of the Company, as amended (incorporated by
reference from the Company's Registration Statement on Form S-4 (Registration No.
333-46185)).
4.2 -- By-laws of the Company (incorporated by reference from the Company's Registration
Statement on Form S-4 (Registration No. 333-46185)).
5 -- Opinion of Paul, Weiss, Rifkind, Wharton & Garrison, counsel to the Company,
regarding the legality of the Class A Common Stock being registered.
23.1 -- Consent of Deloitte & Touche LLP.
23.2 -- Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in Exhibit 5).
24 -- Power of Attorney (included on signature page).