As filed with the Securities and Exchange Commission on June 17, 1998.
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.)
203 COLORADO STREET 78701
AUSTIN, TEXAS (Zip Code)
(Address of Principal Executive Offices)
SCHLOTZSKY'S, INC.
1993 STOCK OPTION PLAN
SCHLOTZSKY'S, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
MONICA GILL COPY TO:
CHIEF FINANCIAL OFFICER PHILLIP M. SLINKARD, ESQ.
203 COLORADO STREET GENERAL COUNSEL
AUSTIN, TEXAS 78701 203 COLORADO STREET
(512) 236-3600 AUSTIN, TEXAS 78701
(Name, address and telephone number (512) 236-3600
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF CLASS OF SECURITIES TO AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
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 900,000 $15.50 $13,950,000 $4,227.27
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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 and the Employee Stock Purchase 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 Employee Stock Purchase Plan
is based on the average bid and asked price of the Common Stock on NASDAQ on
June 11, 1998.
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.
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/A for the fiscal year
ended December 31, 1997;
(2) the registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998; 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
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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 such person (i) 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 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 $5,000,000 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(a) -- Schlotzsky's, Inc. 1993 Third Amended and Restated
Stock Option Plan of the Registrant and form of
Incentive Stock Option Agreement.
4.3(b) -- Amendments to 1993 Third Amended and Restated Stock
Option Plan
* 4.4 -- Specimen Stock Certificate evidencing the common stock.
* 4.5 -- Form of Non-Qualified Option Agreement under the
Registrant's 1993 Third Amended and Restated Stock
Option Plan.
4.6 -- Schlotzsky's, Inc. Employee Stock Purchase 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 filed October 12, 1995
+ Filed as an Exhibit to the registrant's Form S-1 filed September 19, 1997
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.
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 June 16, 1998:
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:
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SIGNATURE CAPACITY DATE
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/s/ John C. Wooley
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John C. Wooley Chairman of the Board and President June 15, 1998
(Principal Executive Officer)
/s/ Jeffrey J. Wooley
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Jeffrey J. Wooley Senior Vice President, Secretary, June 15, 1998
Director
/s/ Monica Gill
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Monica Gill Chief Financial Officer (Principal June 15, 1998
Financial Officer)
/s/ John L. Hill, Jr.
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John L. Hill, Jr. Director June 16, 1998
/s/ Azie Taylor Morton
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Azie Taylor Morton Director June 16, 1998
/s/ John M. Rosillo
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John M. Rosillo Director June 16, 1998
/s/ Raymond A. Rodriguez
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Raymond A. Rodriguez Director June 15, 1998
/s/ Floor Mouthaan
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Floor Mouthaan Director June 17, 1998
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INDEX TO EXHIBITS
Sequential
Exhibit Page
Number Description of Exhibit Number
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4.1 -- Articles of Incorporation of the Registrant, as amended. N/A
4.2 -- Bylaws of the Registrant, as amended. N/A
4.3(a) -- Schlotzsky's, Inc. 1993 Third Amended and Restated Stock Option Plan of
the Registrant and form of Incentive Stock Option Agreement. N/A
4.3(b) -- Amendments to 1993 Third Amended and Restated Stock Option Plan. --
4.4 -- Specimen Stock Certificate evidencing the common stock. N/A
4.5 -- Form of Non-Qualified Option Agreement under the Registrant's 1993
Third Amended and Restated Stock Option Plan. N/A
4.6 -- Schlotzsky's, Inc. Employee Stock Purchase 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). N/A
23.2 -- Consent of Independent Accountant. --
24.1 -- Power of Attorney (see signature page of this Registration Statement). N/A
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