UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC
20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported): December 5, 2007
PAPA JOHNS INTERNATIONAL, INC.
(Exact name of registrant as specified in its
charter)
Delaware
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0-21660
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61-1203323
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(State or other
jurisdiction of incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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2002
Papa Johns Boulevard
Louisville,
Kentucky
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40299-2334
(Zip Code)
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(Address of
principal executive offices)
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Registrants telephone number, including area code: (502) 261-7272
Check the appropriate box
below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions (see
General Instruction A.2. below):
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Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c))
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Section 5
Corporate Governance and Management
Item 5.03 Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal Year
On December 5, 2007, our Board
of Directors, upon recommendation of the Corporate Governance and Nominating
Committee, adopted amendments to the Companys Amended and Restated Bylaws that
provide for (i) a majority voting standard for uncontested director
elections and (ii) a mechanism for consideration of the resignation of an
incumbent director who does not receive a majority of the votes cast in an
uncontested election.
Our Board adopted amendments
to Article II Section 9 of the Bylaws to change the vote standard for
the election of directors in an uncontested election from a plurality to a
majority of the votes cast. Under the adopted majority voting standard, a
majority of the votes cast means that the number of shares voted for a
director nominee must exceed the number of votes cast against that director
nominee. In contested elections where the number of nominees exceeds the number
of directors to be elected, the vote standard will continue to be a plurality
of votes cast.
In addition, our Board adopted
amendments to Article III, Section 1 to provide that if an incumbent
director is nominated in an uncontested election, the director nominee is
required, as a condition of the directors nomination, to submit an irrevocable
letter of resignation to the Chairman of the Board. If an incumbent director
nominee does not receive a majority of the votes cast, the Corporate Governance
and Nominating Committee will make a recommendation to the Board on whether to
accept or reject the resignation, or whether other action should be taken. The
Board will act on the Committees recommendation and publicly disclose its
decision within 90 days from the date of certification of the election results.
The director whose resignation is being considered will not participate in the
recommendation of the Committee or the Boards decision.
In
addition, our Board approved certain other non-material changes to our Bylaws
that are primarily clerical in nature and designed to update and conform our
Bylaws with the current Delaware General Corporation Law, including, among
other things, allowing (i) the use of electronic transmission for items
that previously required a written instrument, such as notices, consents,
written ballots, resignations and other communications and (ii) stockholder
meetings to be held solely by means of remote communication.
The
foregoing is a summary of the amendments to the Bylaws and is qualified in its
entirety by the Amended and Restated Bylaws, a copy of which is included as Exhibit 3.1
to this Form 8-K and is incorporated into this Item 5.03 by reference.
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Section 7
Regulation FD
Item
7.01 Regulation FD Disclosure
A copy of the
press release announcing 2008 growth plans, along with earnings guidance, is
attached hereto as Exhibit 99.1 and is incorporated herein by reference.
Section 8Other
Events
Item 8.01
Other Events
On December 6, 2007, our Board of Directors approved a $50 million
increase in the amount of our common stock that may be repurchased from time to
time. The authorization includes both market purchases as well as private
transactions and is effective beginning January 1, 2008 through December 28,
2008. We intend to fund the increase in the share repurchase program from
operating cash flows.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
The
following documents are herewith furnished as an exhibit to this report:
Exhibit
Number
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Description
of Exhibit
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3.1
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Amended
and Restated Bylaws of Papa Johns International, Inc.
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99.1
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Papa
Johns International, Inc. Press Release dated December 6, 2007.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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PAPA
JOHNS INTERNATIONAL, INC.
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(Registrant)
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Date:
December 10, 2007
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/s/
J. David Flanery
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J.
David Flanery
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Senior
Vice President and Chief Financial Officer
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Exhibit 3.1
AMENDED AND RESTATED BY-LAWS
OF
PAPA JOHNS INTERNATIONAL, INC.
ARTICLE I
Offices
SECTION 1. Registered
Office. The registered office
of the Corporation shall be in Wilmington, New Castle County, Delaware. The registered agent of the Corporation in
the State of Delaware shall be appointed from time to time by the Board of
Directors.
SECTION 2. Other Offices. The Corporation may also
have a place of business and other offices at any place or places within or
without the State of Delaware, as the Board of Directors shall from time to
time determine or the business of the Corporation may require.
ARTICLE II
Meetings of Stockholders
SECTION 1. Place of
Meetings. All meetings of the
stockholders shall be held at any place within or without the State of
Delaware, as shall be designated from time to time by the Board of Directors
and stated in the notice of meeting, or if not so designated, the principal
place of business of the Corporation in Louisville, Kentucky. The Board of Directors may, in its sole
discretion, determine that any meeting of stockholders shall not be held at any
place, but shall instead be held solely by means of remote communication as
permitted by statute. If authorized by
the Board of Directors in its sole discretion, and subject to such guidelines
and procedures as the Board of Directors may adopt, stockholders and proxy
holders not physically present at a meeting of stockholders may, by means of
remote communication (a) participate in a meeting of stockholders; and (b) be
deemed present in person and vote at a meeting of stockholders whether such
meeting is to be held at a designated place or solely by means of remote
communication, provided that (i) the corporation shall implement
reasonable measures to verify that each person deemed present and permitted to
vote at the meeting by means of remote communication is a stockholder or proxy
holder; (ii) the corporation shall implement reasonable measures to
provide such stockholders and proxy holders a reasonable opportunity to
participate in the meeting and to vote on matters submitted to the
stockholders, including an opportunity to read or hear the proceedings of the
meeting substantially concurrently with such proceedings; and (iii) if any
stockholder or proxy holder votes or takes other action at the meeting by means
of remote communication, a record of such vote or other action shall be
maintained by the corporation.
SECTION 2. Annual
Meeting. The annual meeting
of stockholders shall be held at the date and time designated by the Board of
Directors and stated in the notice of meeting. At the annual meeting, the
stockholders shall elect directors and transact any other business properly
brought before the meeting.
SECTION 3. Special
Meetings. Subject to the
rights of the holders of any series of the Corporations Preferred Stock, a
special meeting of stockholders, unless otherwise required by statute, may be
called at any time only by (a) the Board of Directors, (b) the
Chairman of the Board of the Corporation, or (c) the holders of not less
than 60% of the shares entitled to vote at the special meeting.
SECTION 4. Notice
of Meetings. Except as
otherwise permitted or required by applicable laws and regulations, notice of
each annual and special meeting of stockholders stating the date, place, if
any, and hour of the meeting; the means of remote communication, if any, by
which stockholders and proxy holders may be deemed to be present in person and
vote at such meeting; and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be given to each stockholder of
record entitled to vote at the meeting not less than ten nor more than sixty
days before the date of the meeting.
Notice may be given in any manner permitted by applicable laws and
regulations, and shall be deemed given at the time prescribed by applicable
laws and regulations for such manner of notice. Notice shall be deemed to have
been given to all stockholders of record who share an address if notice is
given in accordance with the householding rules set forth in Rule 14a-3(e) under
the Securities Exchange Act of 1934 and Section 233 of the General
Corporation Law of the State of Delaware.
Notice of any meeting shall not be required to be given to any person
who attends the meeting, except when the person attends the meeting in person
or by proxy for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened, or who, either before or after the meeting, submits a
signed written waiver of notice, or an electronically transmitted waiver of
notice, in person or by proxy. Neither
the business to be transacted at, nor the purpose or purposes of, an annual or
special meeting of stockholders need be specified in any waiver of notice.
SECTION 5. List of
Stockholders. After the
record date for a meeting of stockholders has been fixed, at least ten days
before such meeting, the officer who has charge of the stock ledger of the Corporation
shall prepare and make a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, showing the address of and the
number of shares registered in the name of each stockholder. The list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, in any
manner permitted by statute. The list
shall be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is
present. If the meeting is held solely
by remote communication, the list shall be open to examination by any
stockholder during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access the network shall be
provided with the notice of the meeting.
If the list is available on an electronic network, the Corporation may
take reasonable steps to ensure that the list is available only to stockholders
of the Corporation. The stock ledger
shall be the only evidence as to the stockholders who are entitled to the list
described in this section or to vote at any meeting of stockholders.
SECTION 6. Quorum, Adjournments. The holders of a majority
of the shares entitled to vote at any meeting of stockholders, present in
person or represented by proxy, shall constitute a quorum for the transaction
of business at the meeting, except as otherwise required
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by statute or by the Corporations Amended
and Restated Certificate of Incorporation as the same may be amended from time
to time (Certificate of Incorporation).
If, however, a quorum is not present or represented by proxy at any
meeting of stockholders, the stockholders entitled to vote at the meeting,
present in person or represented by proxy, may adjourn the meeting from time to
time, but no other business shall be transacted at the meeting. Any business may be transacted at the
adjourned meeting which might have been transacted at the original meeting. The
stockholders present at a duly called or convened meeting, at which a quorum is
present, may continue to transact business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum. When a meeting is adjourned to another time
or place, if any, notice need not be given of the adjourned meeting if the time
and place, if any, thereof, and the means of remote communication, if any, by
which stockholders and proxy holders may be deemed to be present in person and
vote at such meeting, are announced at the meeting at which the adjournment is
taken. If the adjournment is for more
than thirty days, or, if after adjournment a new record date is fixed, a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote at the meeting. Once a share is
represented for any purpose at a meeting (other than solely to object (1) to
holding the meeting or transacting business at the meeting, or (2) (if it
is a special meeting) to consideration of a particular matter at the meeting
that is not within the purpose or purposes described in the meeting notice), it
is deemed present for quorum purposes for the remainder of the meeting and or
any adjournment of that meeting unless a new record date is set for the
adjourned meeting.
SECTION 7. Organization. At each meeting of stockholders, the
Chairman of the Board or the President, or the lead director if one shall have
been elected, shall act as chairman of the meeting. The Secretary or, in his or
her absence or inability to act, any person appointed by the chairman of the
meeting, shall act as secretary of the meeting and keep the minutes thereof.
SECTION 8. Order of Business and Conduct of Meetings. The
order of business at all meetings of the stockholders shall be as determined by
the chairman of the meeting. The Board
of Directors may adopt by resolution any rules and regulations for the
conduct of the meeting of stockholders as it deems appropriate. Except to the extent inconsistent with rules and
regulations adopted by the Board of Directors, the chairman of any meeting of
stockholders shall have authority to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of the chairman, are
appropriate for the proper conduct of the meeting. The rules, regulations or procedures, whether
adopted by the Board of Directors or prescribed by the chairman of the meeting,
may include, without limitation: (i) the establishment of an agenda or
order of business for the meeting; (ii) rules and procedures for
maintaining order at the meeting and the safety of those present; (iii) limitations
on attendance at or participation in the meeting to stockholders of record of
the corporation, their duly authorized and constituted proxies or any other
persons as the chairman of the meeting shall determine; (iv) restrictions
on entry to the meeting after the time fixed for the commencement of the meeting;
and (v) limitations on the time allotted to questions or comments by
participants.
SECTION 9. Voting and Proxies. Except as otherwise required by statute or
the Certificate of Incorporation, each stockholder of the Corporation shall be
entitled at each
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meeting of stockholders to one vote on each
matter for each share of capital stock of the Corporation held by the
stockholder on the record date for such meeting. Each stockholder entitled to vote at any
meeting of stockholders may authorize another person or persons to act for him
or her by a proxy signed or otherwise authorized in accordance with statute by
the stockholder or the stockholders attorney-in-fact, but no proxy shall be
voted after three years from its date, unless the proxy provides for a longer
period. Any such proxy shall be delivered or transmitted to the secretary of
the meeting at or prior to the time designated in the order of business for so
delivering such proxies. A duly executed proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is coupled with
an interest sufficient in law to support an irrevocable power. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or by filing another duly executed proxy bearing a later date with the
Secretary of the Corporation. A proxy is
not revoked by the death or incapacity of the maker unless, before the vote is
counted, written notice of such death or incapacity is received by the
Corporation. When a quorum is present at any meeting, the vote of the holders of a
majority of the shares entitled to vote on the subject matter, present in person
or represented by proxy, shall decide any question brought before the meeting,
other than the election of directors or unless the question is one upon which
by express provision of statute, or of the Certificate of Incorporation or of
these By-Laws, a different vote is required, in which case the express
provision shall govern. Except as provided in the Certificate of Incorporation
or required by law, at any meeting for the election of directors at which a
quorum is present, each director shall be elected by the vote of the majority
of the votes cast with respect to the director, provided that if as of the
record date for such meeting the number of nominees exceeds the number of
directors to be elected, the directors shall be elected by the vote of a plurality
of the shares represented in person or by proxy at any such meeting and
entitled to vote on the election of directors.
For purposes of this Section, a majority of the votes cast means that
the number of shares voted for a director must exceed the number of votes
cast against that director. Unless required by statute, or determined
by the chairman of the meeting to be advisable, the vote on any matter need not
be by ballot. On a vote by ballot, each ballot shall be signed by the
stockholder voting, or by his or her proxy, and shall state the number of
shares voted. Any vote by written ballot
may be taken by any means of electronic transmission, and the written ballot
shall be deemed signed, if the electronic transmission sets forth or is
submitted with information from which it can be determined that the electronic
transmission was authorized by the stockholder or proxy holder.
SECTION 10. Inspectors. The Board of Directors shall, in advance of any meeting of
stockholders, appoint one or more inspectors to act at the meeting or any
adjournment thereof and make a written report thereof. If any of the inspectors
so appointed shall fail to appear or shall be unable to act, the chairman of
the meeting shall appoint one or more inspectors. Each inspector, before
entering upon the discharge of his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his or her ability. The inspectors
shall ascertain the numbers of shares of capital stock of the Corporation
outstanding and the voting power of each; determine the number of shares
represented at the meeting, the existence of a quorum, and the authenticity,
validity and effect of proxies and ballots; count all votes and ballots;
determine when the polls shall close; determine and retain for a reasonable
period a record of the disposition of any challenges made to any determination
by the inspectors; certify their determination of the
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number of shares represented at the meeting
and their count of all votes and ballots; and do any other acts that may be
proper to conduct the meeting. The inspectors may appoint or retain other
persons or entities to assist the inspectors in the performance of their
duties. No director or candidate for the office of director shall act as an
inspector of an election of directors. Inspectors need not be stockholders or
employees of the Corporation.
ARTICLE III
Board of Directors
SECTION 1. Number
and Qualifications. The
number of directors which shall constitute the whole Board of Directors shall
not be fewer than three nor more than fifteen, unless otherwise provided in the
Certificate of Incorporation. Within the
limits above, the number of directors shall be determined by action of not less
than a majority of the members of the Board of Directors then in office, though
less than a quorum. Any incumbent director who is nominated for election by the
Board of Directors or a committee thereof shall, as a condition to such
nomination submit a conditional and, in the case of an uncontested election,
irrevocable letter of resignation to the Chairman of the Board. If an incumbent
director is not elected, the Corporate Governance and Nominating Committee will
consider the conditional resignation of such nominee and make a recommendation
to the Board of Directors on whether to accept or reject the conditional
resignation, or whether other action should be taken. The Board of Directors
will act on the Committees recommendation and publicly disclose its decision
and the rationale behind it within 90 days from the date of the certification
of the election results. The director whose conditional resignation is being
considered will not participate in the Committees recommendation or the Board
of Directors decision. In addition, if there are not at least two members of
the Corporate Governance and Nominating Committee who either were elected at
the meeting or did not stand for election, then each of the independent members
of the Board of Directors who either were elected at the meeting or did not
stand for election shall appoint a committee amongst themselves to consider the
resignation offer and recommend to the Board of Directors whether to accept it
(which committee of the independent members shall act in lieu of the Corporate
Governance and Nominating Committee with respect to the resignation offer in
such situation). Each director shall hold office
for the term for which he is elected and until his successor shall have been
duly elected and qualified or until death, or until he or she shall have
resigned or have been removed or disqualified in accordance with these By-Laws
and the Certificate of Incorporation.
SECTION 2. Place of
Meetings. Meetings of the
Board of Directors shall be held at any place, within or without the State of
Delaware, as the Board of Directors may from time to time determine or as shall
be specified in the notice of any such
meeting.
SECTION 3. Annual
Meeting. The Board of
Directors shall meet for the purpose of organization, the election of officers
and the transaction of other business, as soon as practicable after each annual
meeting of stockholders, on the same day and at the same place where the annual
meeting of stockholders is held. Notice of the meeting need not be given. If
the annual meeting of the Board of Directors is not so held, the annual meeting
shall be held at the time or place specified in a notice given as provided in Section 6
of this Article III.
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SECTION 4. Regular
Meetings. Regular meetings of
the Board of Directors shall be held at such time and place as the Board of
Directors may fix. If any day fixed for a regular meeting is a legal holiday at
the place where the meeting is to be held, then the meeting shall be held at
the same hour on the next succeeding business day (unless the Chairman of the
Board or the lead director, if one shall have been elected, determines
otherwise). Notice of regular meetings of the Board of Directors need not be
given unless required by statute or these By-Laws.
SECTION 5. Special
Meetings. Special meetings of
the Board of Directors may be called by the Chairman of the Board, by the lead
director, if one shall have been elected, by three or more directors of the
Corporation or by the Chief Executive Officer.
SECTION 6. Notice
of Meetings. Notice of the
time and place of each special meeting of the Board of Directors (and of each
regular meeting for which notice is required) shall be given by the Secretary
as provided in this Section 6.
Unless otherwise required by these By-Laws, the notice need not state
the purpose or purposes of the meeting.
Notice may be given in any manner permitted by statute. Notice need not
be given to any director who, either before or after the meeting, signs and
submits a written waiver of notice, submits a waiver by electronic
transmission, or attends the meeting, except when he or she attends for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
SECTION 7. Quorum
and Manner of Acting. A
majority of the entire Board of Directors shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors, and, except
as otherwise required by statute, the
Certificate of Incorporation or these By-Laws, the vote of a majority of the
directors present at any meeting at which a quorum is present shall be regarded
as the act of the Board of Directors. Whether a quorum is present or otherwise,
a majority of the directors present at a meeting of the Board may adjourn the
meeting to another time and place. Notice of the time and place of any
adjourned meeting shall be given to all of the directors unless the time and
place were announced at the meeting at which the adjournment was taken, in
which case the notice shall only be given to the directors who were not present
at the original meeting. At any adjourned
meeting at which a quorum is present, any business may be transacted which
might have been transacted at the original meeting. The directors shall act only as a Board and
the individual directors shall have no power as such.
SECTION 8. Organization. At each meeting of the Board of Directors,
the Chairman of the Board or, at the request of the Chairman of the Board or in
his or her absence or if one shall not have been elected, the lead director, or
if one shall not have been elected, another director chosen by a majority of
the directors present, shall act as chairman of the meeting and preside at the
meeting. The Secretary or, in his or her
absence or if one shall not have been elected, any person appointed by the
chairman of the meeting, shall act as secretary of the meeting and keep the
minutes thereof.
SECTION 9. Resignations. Any director of the Corporation may resign at
any time upon notice given in writing or by electronic transmission to the
Corporation. Any such resignation shall be effective when the resignation is
delivered to the Corporation, unless the
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resignation specifies a later effective date
or an effective date determined upon the happening of an event or events. The acceptance of a resignation shall not be
necessary to make it effective.
SECTION 10. Compensation.
The Board of Directors shall
have authority to fix the compensation, including fees and reimbursement of
expenses, of directors for services to the Corporation in any capacity.
SECTION 11. Committees. The Board of Directors may designate one or
more committees, each committee to consist of one or more of the directors of
the Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee.
In addition, in the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member. Unless otherwise provided in the resolution
of the Board of Directors designating the committee, a committee may create one
or more subcommittees, each subcommittee to consist of one or more members of
the committee, and may delegate to a subcommittee such powers and authority as
the committee deems appropriate.
Except
to the extent restricted by statute or the Certificate of Incorporation, each
committee, to the extent provided in the resolution creating it, shall have and
may exercise all the powers and authority of the Board of Directors and may
authorize the seal of the Corporation to be affixed to all papers which require
it. Each committee shall serve at the pleasure of the Board of Directors and
have the name determined from time to time by resolution adopted by the Board
of Directors. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors.
Except
as the Board of Directors may otherwise determine or as provided in these
By-Laws, any committee may make rules for the conduct of its business, but
unless otherwise provided by the Board of Directors or in a committees rules,
the business of each committee shall be conducted as nearly as possible in the
same manner as is provided in these By-Laws for the Board of Directors.
SECTION 12. Action by
Consent. Unless restricted by
the Certificate of Incorporation, any action required or permitted to be taken
by the Board of Directors or any committee may be taken without a meeting if
all members of the Board of Directors or committee, as the case may be, consent
thereto in writing or by electronic transmission, and the writing or writings
or electronic transmission or transmissions are filed with the minutes of the
proceedings of the Board of Directors or committee. Such filing shall be in paper form if the minutes
are maintained in paper form and shall be in electronic form if the minutes are
maintained in electronic form.
SECTION 13. Telephonic
Meeting. Unless restricted by
the Certificate of Incorporation, any
one or more members of the Board of Directors or any committee thereof may
participate in a meeting of the Board of Directors or the committee by means of
a
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conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other. Participation by such
means shall constitute presence in person at a meeting.
ARTICLE IV
Officers
SECTION 1. Number and Qualifications. The officers of the
Corporation shall be elected by the Board of Directors and shall include a
Chairman of the Board, a President, one or more Vice Presidents (including
Senior, Executive Vice Presidents or other classifications of Vice Presidents),
a Secretary and a Treasurer. If the Board of Directors so wishes, it may also
elect other officers (including a Chief Executive Officer, one or more
Assistant Treasurers and one or more Assistant Secretaries) as may be necessary
or desirable for the business of the Corporation. Any two or more offices may
be held by the same person, except that in no event shall the Chief Executive
Officer or President be the same person as the Secretary, and no officer except
the Chairman of the Board need be a director. Each officer shall hold office
until his or her successor shall have been duly elected and qualified, or until
death, or until he or she shall have resigned or have been removed or
disqualified, as provided in these By-Laws.
SECTION 2. Resignations.
Any
officer of the Corporation may resign at any time by giving written notice of
his resignation to the Corporation. Any such resignation shall take effect at
the time specified therein or, if no time is specified, immediately upon
receipt by the Corporation. The acceptance of a resignation shall not be
necessary to make it effective.
SECTION 3. Removal. Any officer of the Corporation may be
removed, either with or without cause, at any time, by the Board of Directors.
SECTION 4. Chairman
of the Board. If present, the Chairman of the Board shall
preside at all meetings of the Board of Directors, or request the lead
director, if one shall have been elected, to preside. The Chairman shall see that all orders and
resolutions of the Board of Directors are carried into effect. The Chairman
shall advise and counsel with the Chief Executive Officer, President, and other
executives of the Corporation, and shall perform any other duties assigned to
him or her by the Board of Directors.
SECTION 5. Chief
Executive Officer. The Chief Executive Officer, if any, shall
exercise the powers and authority and perform all of the duties commonly
incident to such office and shall perform such other duties as the Board of
Directors shall specify from time to time.
SECTION 6. President. The President shall be charged with the
general supervision of the management and policy of the Corporation, subject to
the authority of the Board of Directors, the Chairman and the Chief Executive
Officer. The President shall perform all
duties commonly incident to the office of president and any other duties
assigned to him or her by the Board of Directors or the Chairman of the Board.
SECTION 7. Vice
President. Each Vice
President shall perform all duties assigned to him or her by the Board of
Directors, the Chairman of the Board, the Chief Executive Officer, or the President.
At the request of the President or in the event of his or her inability or
refusal
8
to act, the Vice President, or if there is
more than one, the Vice Presidents in the order determined by the Board of
Directors (or if there has been no such determination, then the Vice Presidents
in the order of their election), shall perform the duties of the President,
and, when so acting, shall have the powers of and be subject to the
restrictions placed upon the President in respect of the performance of such
duties.
SECTION 8. Treasurer. The Treasurer shall have responsibility for
the custody of the corporate funds and securities and shall see to it that full
and accurate accounts of receipts and disbursements are kept in books belonging
to the Corporation. The Treasurer shall
render to the Chairman, the Chief Executive Officer, the President, and the
Board of Directors, upon request, an account of all financial transactions and
of the financial condition of the Corporation.
SECTION 9. Secretary. The Secretary shall have responsibility for
preparation of minutes of meetings of the Board of Directors and of the
stockholders and for authenticating records of the Corporation. The Secretary shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the
Board of Directors. The Secretary or an
Assistant Secretary may also attest all instruments signed by any other officer
of the Corporation.
SECTION 10. The
Assistant Treasurer. The
Assistant Treasurer, if any, or if there is more than one, the Assistant
Treasurers in the order determined by the Board of Directors (or if there has
been no such determination, then in the order of their election), shall, in the
event of the Treasurers inability or refusal to act, perform the duties and
exercise the powers of the Treasurer and any other duties assigned to him or
her by the Board of Directors.
SECTION 11. The
Assistant Secretary. The
Assistant Secretary, if any, or if there is more than one, the Assistant
Secretaries in the order determined by the Board of Directors (or if there has
been no such determination, then in the order of their election), shall, in the
event of the Secretarys inability or refusal to act, perform the duties and
exercise the powers of the Secretary and any other duties assigned to him or
her by the Board of Directors.
SECTION 12. Officers
Bond or Other Security. If
required by the Board of Directors, any officer of the Corporation shall give a
bond or other security for the faithful performance of his or her duties, in
such amount and with such surety as the Board of Directors may require.
SECTION 13. Compensation.
The compensation of the
officers of the Corporation for their services as officers shall be fixed from
time to time by or under the oversight of the Board of Directors. An officer of
the Corporation shall not be prevented from receiving compensation by reason of
the fact that he or she is also a director of the Corporation.
ARTICLE V
Stock Certificates and Their Transfer
SECTION 1. Stock Certificates. The shares of the
Corporation shall be represented by certificates, unless the Board of Directors
provides by resolution or resolutions that some or all of any or all classes or
series of the Corporations stock shall be uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until the certificate is
9
surrendered to the Corporation. Every holder of stock in the Corporation
represented by certificates shall be entitled to have a certificate signed by,
or in the name of the Corporation by, the Chairman of the Board, the President
or a Vice President and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary of the Corporation, representing the number
of shares registered in certificate form.
The powers, designations, preferences and relative, participating,
optional or other special rights of each class of the Corporations stock or
any series of any class and the qualifications or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of any certificate which the Corporation shall issue to represent the
class or series of stock; provided
that, except as otherwise provided in Section 202 of the
General Corporation Law of the State of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of any certificate
which the Corporation shall issue to represent any class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions or such
preferences and/or rights.
SECTION 2. Facsimile Signatures. Any or all of the
signatures on a certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he or she were such officer, transfer
agent or registrar at the date of issue.
SECTION 3. Lost Certificates. The Corporation may direct a new certificate or
certificates of stock to be issued in place of any certificate or certificates
theretofore issued by the Corporation, alleged to have been lost, stolen or
destroyed. When authorizing the issue of a new certificate or certificates,
the Corporation may, as a condition precedent to the issuance
thereof, require the owner of the alleged lost, stolen or destroyed certificate
or certificates, or his or her legal representative, to give the Corporation a
bond in such sum as it may direct sufficient to indemnify it against any claim
that may be made against the Corporation on account of the alleged loss, theft
or destruction of any such certificate or the issuance of the new certificate
or uncertificated shares. The
Corporation may adopt such other provisions and restrictions with reference to
lost certificates, not inconsistent with applicable law, as it shall in its
discretion deem appropriate.
SECTION 4. Transfer of Stock. Upon surrender to the
Corporation or the transfer agent of the Corporation of a certificate for
shares duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, the Corporation shall issue a new
certificate or uncertificated shares to the person entitled thereto, cancel the
old certificate and record the transaction upon its records; provided, however, that the
Corporation shall be entitled to recognize and enforce any lawful restriction
on transfer. Whenever any transfer of
stock is made for collateral security, and not absolutely, it shall be so
expressed in the entry of transfer if, when the certificates or uncertificated
shares are presented to the Corporation for transfer, both the transferor and
the transferee request the Corporation to do so.
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SECTION 5. Transfer Agents and Registrars. The Board of Directors may
appoint, or authorize any officer or officers to appoint, one or more transfer
agents and one or more registrars.
SECTION 6. Regulations. The Board of Directors may make such
additional rules and regulations, not inconsistent with these By-Laws, as
it may deem expedient concerning the issue, transfer and registration of
certificates for shares of stock or uncertificated shares of the Corporation.
SECTION 7. Fixing
the Record Date. In order
that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof or entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board
of Directors may fix, in advance, a record date, which shall not precede the
date upon which the resolution fixing the record date is adopted by the Board
of Directors, and which shall not be more than sixty nor less than ten days
before the date of such meeting, nor more than sixty days prior to any other
action. If no record date is fixed, (a) the record date for determining
stockholders entitled to notice of or to vote at any meeting of stockholders
shall be at the close of business on the day next preceding the day when notice
is given, or, if notice is waived, at the close of business on the day next
preceding the date on which the meeting is held; and (b) the record date
for determining stockholders for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment or postponement of the meeting; provided, however, that the Board of
Directors may, in its discretion, fix a new record date for the adjourned or
postponed meeting.
SECTION 8. Registered
Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its records as the
owner of shares of stock to receive dividends and to vote as such owner, shall
be entitled to hold liable for calls and assessments a person registered on its
records as the owner of shares of stock, and shall not be bound to recognize
any equitable or other claim to or interest in such share or shares of stock on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VI
General
Provisions
SECTION 1. Dividends. Subject to the provisions of statute and the
Certificate of Incorporation, dividends upon the shares of capital stock of the
Corporation may be declared by the Board of Directors at any regular or special
meeting. Dividends may be paid in cash, in property or in shares of stock of
the Corporation, unless otherwise provided by statute or the Certificate of
Incorporation.
SECTION 2. Seal. The seal of the Corporation shall be in such
form as shall be approved by the Board of Directors.
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SECTION 3. Fiscal
Year. The fiscal year of the
Corporation shall end on the last Sunday of each calendar year or such other date designated by resolution of the Board of
Directors.
SECTION 4. Checks,
Notes, Drafts, Etc. All
checks, notes, drafts or other orders for the payment of money of the
Corporation shall be signed, endorsed or accepted in the name of the
Corporation by such officer, officers, person or persons as from time to time
may be designated by the Board of Directors or by an officer or officers
authorized by the Board of Directors to make such designation.
SECTION 5. Execution
of Contracts, Deeds, Etc. The
Board of Directors may authorize any officer or officers, or agent or agents,
in the name and on behalf of the Corporation to enter into or execute and
deliver any and all contracts, deeds, bonds, mortgages and other obligations or
instruments, and such authority may be general or confined to specific
instances.
SECTION 6. Voting
of Stock in Other Corporations or Entities. Unless otherwise provided by resolution of
the Board of Directors, the Chairman of the Board, the Chief Executive Officer,
or the President or any Vice President, from time to time, may (or may appoint
one or more attorneys or agents to) cast the votes which the Corporation may be
entitled to cast as a stockholder or holder of an equity interest in any other
corporation or entity, any of whose shares or securities may be held by the
Corporation, at meetings of the holders of the shares or other securities of
such other corporation or entity. In the
event one or more attorneys or agents are appointed, the Chairman of the Board,
the Chief Executive Officer, or the President or any Vice President may
instruct the person or persons so appointed as to the manner of casting such
votes or giving such consent. The Chairman of the Board, the Chief Executive
Officer, or the President may, or may
instruct the attorneys or agents appointed to, execute or cause to be executed
in the name and on behalf of the Corporation or under its seal or otherwise,
such written proxies, consents, waivers or other instruments as may be
necessary or proper in the circumstances.
SECTION 7. Evidence
of Authority. A certificate
by the Secretary, or an Assistant Secretary, or a temporary Secretary, as to
any action taken by the stockholders, directors, a committee or any officer or
representative of the Corporation shall, as to all persons who rely on the
certificate in good faith, be conclusive evidence of the action.
SECTION 8. Facsimile
Signatures. In addition to
the provisions for use of facsimile signatures specifically authorized in these
By-Laws, facsimile signatures of any officer or officers of the Corporation may
be used whenever and as authorized by the Board of Directors or any committee thereof.
SECTION 9. Reliance
upon Books, Reports and Records.
Each director, each member of any committee designated by the Board of
Directors, and each officer of the Corporation shall, in the performance of his
or her duties, be fully protected in relying in good faith upon the books of
account or other records of the Corporation and upon such information,
opinions, reports or statements presented to the Corporation by any of its
officers or employees or committees of the Board of Directors so designated, or
by any other person as to matters
12
which such director or committee member
reasonably believes are within the other persons professional or expert
competence and who has been selected with reasonable care by or on behalf of
the Corporation.
SECTION 10. Severability. Any determination that any provision of these
By-Laws is for any reason inapplicable, illegal or ineffective shall not affect
or invalidate any other provision of these By-Laws.
SECTION 11. Form of
Records. Any records required
by these By-Laws or otherwise maintained by the Corporation in the regular
course of its business, including its stock ledger, books of account, and
minute books, may be kept on, or be in the form of, magnetic tape, computer
diskettes and discs, photographs, microphotographs, or any other information
storage device, provided that the records so kept can be converted into clearly
legible form within a reasonable time.
ARTICLE VII
ELECTRONIC TRANSMISSION
When used in these By-Laws, electronic transmission means any form of
communication, not directly involving the physical transmission of paper, that
creates a record that may be retained, retrieved and reviewed by a recipient
thereof, and that may be directly reproduced in paper form by such a recipient
through an automated process, including without limitation any telegram,
cablegram, facsimile transmission and communication by electronic mail.
ARTICLE VIII
Amendments
These
By-Laws may be amended or repealed or new by-laws adopted as provided by the
Certificate of Incorporation.
13
Exhibit 99.1
For
more information, contact:
David
Flanery
SVP
and Chief Financial Officer
502-261-4753
PAPA JOHNS ANNOUNCES 2008
GROWTH PLANS AND EARNINGS GUIDANCE
Share Repurchase Authorization
Increased; 2007 Earnings Guidance Reaffirmed
Highlights
· Projected earnings per share of $1.68 to $1.76, excluding FIN 46
· Projected domestic system-wide comparable sales increase of 1.25% to
2.75%
· Projected international system-wide sales increase of 30% to 35%
· Projected worldwide net new unit openings of 160 to 190
· Approved $50 million share repurchase authorization
· Reaffirmed 2007 earnings per share guidance at $1.64 to $1.68, excluding
FIN 46 (base earnings projected at $1.56 to $1.60 per share, excluding $0.08
per share related to the settlement of certain tax issues)
Louisville, Kentucky (December 6, 2007) Papa
Johns International, Inc. (NASDAQ: PZZA) today announced its 2008 growth
plans and earnings guidance. The company
projects earnings per share in the range of $1.68 to $1.76 for 2008, excluding
the impact from the consolidation in accordance with FIN 46 of the results of
the franchisee-owned cheese purchasing company, BIBP Commodities, Inc.
(BIBP), a variable interest entity. Earnings at the high end of this range
would represent an approximate 10% increase over the high end of the reaffirmed
2007 baseline earnings guidance of $1.60. The projected earnings guidance
includes the accretive impact of the expected execution of the increased share
repurchase authorization throughout the year.
The
projected results for 2008 demonstrate the strength of our business model and
its ability to drive shareholder value in a tough operating environment, said
CEO and President Nigel Travis. We will
continue to generate substantial free cash flow which allows us to continue our
share repurchase program and enhance returns for all shareholders. We are excited about our position as the only
brand among our key
national
competitors with significant growth opportunities domestically, and we believe
we have built a strong foundation to enable us to take advantage of our
tremendous opportunities internationally.
Significant
2008 Operational Assumptions
Restaurant Sales Growth
Domestic system-wide comparable sales are expected to increase 1.25% to 2.75%
for 2008, with results for company-owned and franchised units expected to be
relatively consistent. Total sales
growth for international restaurants is expected to range from 30% to 35%.
Unit Growth Worldwide net unit
growth is expected to be in the range of 160 to 190 units. It is expected that the net unit growth will
be approximately one-third domestic units and approximately two-thirds
international units. This would
represent approximately 2% domestic unit growth and 25% international unit
growth. Over 80% of the domestic net
unit growth is expected to be franchised restaurants while substantially all of
the International net unit growth is expected to be franchise units, except for
a small number of company-owned unit openings in the United Kingdom and
Beijing, China.
Revenues Consolidated revenues
are expected to increase in the range of 10% to 15% over expected 2007 results,
approaching $1.2 billion in 2008. The
acquisition of 61 domestic restaurants from franchisees during 2007 will
favorably impact 2008 revenue growth on top of the net unit and comparable
sales growth expectations. In addition,
the increase in revenues reflects the impact of anticipated higher commodity
costs (primarily cheese) on commissary revenues.
Operating Margin Consolidated
operating income as a percentage of revenues is expected to be approximately 50
to 75 basis points lower than in 2007.
In addition to the unfavorable impact of the acquisition of restaurants
from franchisees during 2007 on consolidated margin percent, factors impacting
operating margins for the key business segments are as follows:
· Domestic company-owned restaurants are
expected to experience a decline in operating margin of approximately 0.8% to
1.0%, primarily due to higher food costs (mainly cheese) and higher labor
rates.
· Domestic franchising is expected to increase
only in relation to net unit growth and comparable sales increases
year-over-year, as the impact of the 0.25% increase in royalty rate is expected
to be substantially offset by increased royalty waivers and the impact of the
incremental fee income recognized in the fourth quarter of 2007 in connection
with the franchise renewal program.
· The domestic commissary business unit is
expected to have a relatively flat operating margin percent in 2008 as compared
to 2007. The unfavorable margin impact
of a fixed dollar mark-up on higher cheese costs is expected to be
2
substantially offset by operating efficiencies and fixed cost leverage
due to increased volumes resulting from net new unit growth and per unit sales
growth.
· Operating losses from the International
business unit, including the UK, are expected to be in the $5.5 to $6.0 million
range in 2008, representing an approximate $3.0 million improvement over the
expected 2007 results, due to increased franchise fees and royalties from new
unit openings and per unit sales growth.
· G&A costs are expected to decline
slightly as a percent of revenues in 2008.
Corporate support costs on a segment basis are expected to increase
modestly during 2008, primarily in the marketing and systems areas.
· Additionally, equity-based and short-term
bonus compensation expense (categorized as G&A costs for external financial
reporting purposes and corporate support costs on a segment basis) is expected
to be between $4 million to $5 million higher in 2008 than 2007. The 2007
equity-based compensation was significantly reduced by the forfeiture of units
associated with certain executive departures, the change in the Founders
status from an employee director to non-employee director and the reduction in
share price during the year. In
addition, the 2008 short-term bonus compensation expense is expected to be
higher than in 2007 at budgeted levels of performance attainment.
Net interest expense Net interest expense for 2008
is expected to be in the $6.0 million to $6.5 million range. The increase in the 2008 interest expense, as
compared to the 2007 amount, is due to a modest increase in the average debt
expected to be outstanding in 2008.
Capital
Expenditures Capital expenditures for 2008 are expected to approximate $35
million, of which $15 to $16 million relates primarily to new unit growth, $12
to $13 million is considered maintenance capital for the existing company-owned
restaurant portfolio, commissary system and information systems infrastructure,
and $6 to $7 million is for cost reduction initiatives, such as completion of
the roll-out of the WOW ovens to company-owned units.
Share
Repurchase Authorization
The
company further announced that its Board of Directors approved a $50 million
increase in the amount of the companys common stock that may be repurchased
from time to time. The authorization
includes both market purchases as well as private transactions and is effective
beginning January 1, 2008 through December 28, 2008. The company
intends to fund the increase in the share repurchase program from operating
cash flows.
3
2007
Earnings Guidance Reaffirmed
The
company reaffirmed its earnings guidance for 2007, as most recently updated in
connection with the third quarter earnings release, of a range from $1.64 to
$1.68 per share, excluding the impact of the consolidation of BIBP. The consolidation of BIBP results for 2007 is
expected to decrease earnings by approximately $0.57 per share (a decrease in
pre-tax income of approximately $27.1 million).
The
2007 guidance includes approximately $0.08 per share of earnings related to the
settlement of certain tax issues during the third quarter of 2007. Accordingly, the base earnings projection for
2007, excluding the tax items, ranges from $1.56 to $1.60 per share.
Forward-Looking
Statements
Except
for historical information, this announcement contains forward-looking
statements within the meaning of Section 27A of the Securities Act of
1933, as amended, and Section 21E of the Securities Exchange Act of 1934,
as amended. These forward-looking statements reflect managements expectations
based upon currently available information and data; however, actual results
are subject to future events and uncertainties, which could cause actual
results to materially differ from those projected in these statements. Certain
factors that can cause actual results to materially differ include: the
uncertainties associated with litigation; changes in pricing or other marketing
or promotional strategies by competitors, which may adversely affect sales; new
product and concept developments by food industry competitors; the ability of
the company and its franchisees to meet planned growth targets and operate new
and existing restaurants profitably; general economic conditions; increases in
or sustained high cost levels of food ingredients and other commodities, paper,
utilities, fuel, employee compensation and benefits, insurance and similar costs;
the ability to obtain ingredients from alternative suppliers, if needed;
health- or disease-related disruptions or consumer concerns about commodities
supplies; the selection and availability of suitable restaurant locations;
negotiation of suitable lease or financing terms; constraints on permitting and
construction of restaurants; local governmental agencies restrictions on the
sale of certain food products; higher-than-anticipated construction costs; the
hiring, training and retention of management and other personnel; changes in
consumer taste, demographic trends, traffic patterns and the type, number and
location of competing restaurants; franchisee
relations; the timing of franchise agreement renewals; the
possibility of impairment charges if our United Kingdom operations or recently
acquired restaurants perform below our expectations; federal and state laws
governing such matters as wages, benefits, working conditions, citizenship
requirements and overtime, including legislation to further increase the
federal and state minimum wage; and labor shortages in various markets
resulting in higher required wage rates. The above factors might be especially
harmful to the financial viability of franchisees or company-owned operations
in under-penetrated or emerging markets, leading to greater unit closings than
anticipated. Increases in projected claims losses for the companys
self-insured coverage or within the captive franchise insurance program could
have a significant impact on our operating
4
results.
Additionally, domestic franchisees are only required to purchase seasoned sauce
and dough from our quality control centers (QC Centers) and changes in
purchasing practices by domestic franchisees could adversely affect the
financial results of our QC Centers. Our international operations are subject
to additional factors, including political and health conditions in the
countries in which the company or its franchisees operate; currency regulations
and fluctuations; differing business and social cultures and consumer
preferences; diverse government regulations and structures; ability to obtain
high-quality ingredients and other commodities in a cost-effective manner; and
differing interpretation of the obligations established in franchise agreements
with international franchisees. Further information regarding factors that
could affect the companys financial and other results is included in the
companys Forms 10-Q and 10-K, filed with the Securities and Exchange
Commission.
* * * * *
For
more information about the company, visit Papa Johns at
http://www.papajohns.com.
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