S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on September 3, 1999
As filed with the Securities and Exchange Commission on September 3, 1999.
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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PAPA JOHN'S INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
2002 Papa John's Boulevard
Louisville, Kentucky 40299
(Address of Principal Executive Offices) (Zip Code)
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PAPA JOHN'S INTERNATIONAL, INC.
1999 TEAM MEMBER STOCK OWNERSHIP PLAN
(Full title of the Plan)
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CALCULATION OF REGISTRATION FEE
(1) Estimated solely for the purpose of calculating the registration fee.
This estimate has been calculated in accordance with Rule 457 under the
Securities Act of 1933 and is based on the average of the high and low prices
per share as reported on the National Association of Securities Dealers -
National Market System on August 30, 1999.
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PART I
INFORMATION REQUIRED IN THE PROSPECTUS
The information required by Part I of Form S-8 is included in documents to
be given to the recipient of the securities registered hereby in accordance with
Rule 428(b)(1) under the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Papa John's International, Inc.
("Registrant" or the "Company") with the Securities and Exchange Commission
(Commission File No. 0-21660) are incorporated by reference into this
Registration Statement relating to the shares of Registrant's Common Stock that
may be offered or sold pursuant to the Papa John's International, Inc. 1999 Team
Member Stock Ownership Plan (the "Plan"):
(a) The Company's Annual Report on Form 10-K for the year ended
December 27, 1998;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 28, 1999 and June 27, 1999; and
(c) The description of the Company's Common Stock as contained in the
Registration Statement on Form 8-A, filed by the Company to register the Common
Stock under the Securities Exchange Act of 1934, as amended ("Exchange Act"),
and all amendments or reports filed for the purpose of updating such description
prior to the termination of the offering of Common Stock hereby.
All documents subsequently filed by Registrant or the Plan pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered 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 a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein (or in any other subsequently filed document
which also is incorporated by reference herein) modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed to
constitute a part hereof except as so modified or superseded.
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 of the Delaware General Corporation Law ("GCL") permits a
Delaware corporation to
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indemnify any person who was or is, 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 such corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, such person had no reasonable cause to believe
his conduct was unlawful. A Delaware corporation may indemnify such persons in
actions brought by or in the right of the corporation to procure a judgment in
its favor under the same conditions except that no indemnification is permitted
in respect of any claim, issue or matter as to which such person has been
adjudged to be liable to the corporation unless and to the extent the Court of
Chancery of the State of Delaware or the court in which such action or suit was
brought determines upon application that, in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses as the Court of Chancery or other such court deems proper. To the
extent such person has been successful on the merits or otherwise in defense of
any action referred to above, or in defense of any claim, issue or matter
therein, the corporation must indemnify him against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith. Corporations, under certain circumstances, may pay expenses incurred
by an officer or director in advance of the final disposition of an action for
which indemnification may be permitted or required. The indemnification and
advancement of expenses provided for or granted pursuant to Section 145 are not
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise. Section 145 further
provides that a corporation may maintain insurance against liabilities for which
indemnification is not expressly provided by statute.
Article Twelfth of the Company's Amended and Restated Certificate of
Incorporation provides:
"A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that the foregoing shall
not eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
General Corporation Law of Delaware or (iv) for any transaction from which
the director derived an improper personal benefit. If the General
Corporation Law of Delaware is hereafter amended to permit further
elimination or limitation of the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited
to the fullest extent permitted by the General Corporation Law of Delaware
as so amended. Any repeal or modification of this Article TWELFTH shall not
adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification."
Article Sixteenth of the Company's Amended and Restated Certificate of
Incorporation provides:
"Each person who was or is made a party or is threatened to be made a party
to or is involved (including, without limitation, as a witness) in any
actual or threatened action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of
the fact that he or she is or was a director or officer of the Corporation
or is or was serving at the request of the Corporation as a director or
officer of
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another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is
alleged action in an official capacity as a director, officer or agent or
in any other capacity while serving as such a director or officer, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of Delaware, as the same exists
or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment), or by other applicable law as then in
effect, against all expense, liability and loss (including attorneys' fees,
judgments, fines, excise taxes under the Employee Retirement Income
Security Act of 1974, as amended from time to time ("ERISA"), penalties and
amounts to be paid in settlement) actually and reasonably incurred or
suffered by such indemnitee in connection therewith."
The Company maintains liability insurance coverage for its officers and
directors which entitles the Company to be reimbursed for certain indemnity
payments it is required or permitted to make to its directors and officers with
respect to actions arising out of the performance of such officer's or
director's duties.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement:
4.1 The Registrant's Amended and Restated Certificate of Incorporation.
Exhibit 3.1 to the Registrant's Registration Statement on Form S-1 (Registration
No. 33-61366) is incorporated herein by reference.
4.2 The Registrant's Certificate of Amendment of its Amended and Restated
Certificate of Incorporation. Exhibit 3 to the Registrant's Quarterly Report on
Form 10-Q for the quarterly period ended June 29, 1997 (Commission File No. 0-
21660) is incorporated herein by reference.
4.3 The Registrant's Restated By-Laws. Exhibit 3.2 to the Registrant's
Registration Statement on Form S-1 (Registration No. 33-61366) is incorporated
herein by reference.
5. Opinion of Greenebaum Doll & McDonald PLLC as to the legality of the
securities being registered.
23.1 Consent of Greenebaum Doll & McDonald PLLC (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
24 Powers of Attorney (included on signature page of the Registration
Statement).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the Registration Statement;
(iii) 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;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this Item 9
do not apply if the Registration Statement is on Form S-3 or Form S-8 and the
information required to be included in the post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) 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.
(3) 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, each filing of
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, 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 Registrant of expenses incurred or
paid by a director, officer or controlling person of 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, 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
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Pursuant to the requirements of the Securities Act of 1933, 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 Louisville, Commonwealth of Kentucky, on September 3,
1999.
PAPA JOHN'S INTERNATIONAL, INC.
By: /s/ Charles W. Schnatter
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Charles W. Schnatter
Senior Vice President, Secretary and
General Counsel
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Charles W. Schnatter and E. Drucilla Milby and
each of them such individual's true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for such individual and in
his or her name, place and stead, in any and all capacities, to sign all
amendments (including post-effective amendments) to this Registration Statement
and any registration statement related to the offering contemplated by this
Registration Statement that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act of 1933, and to file the same, with all exhibits
thereto, and all documents in connection therewith, with the Securities and
Exchange Commission and any State or other regulatory authority, 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 or 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 any of them, or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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EXHIBIT INDEX
4.1 The Registrant's Amended and Restated Certificate of Incorporation.
Exhibit 3.1 to the Registrant's Registration Statement on Form S-1 (Registration
No. 33-61366) is incorporated herein by reference.
4.2 The Registrant's Certificate of Amendment of its Amended and Restated
Certificate of Incorporation. Exhibit 3 to the Registrant's Quarterly Report on
Form 10-Q for the quarterly period ended June 29, 1997 (Commission File No.
0-21660) is incorporated herein by reference.
4.3 The Registrant's Restated By-Laws. Exhibit 3.2 to the Registrant's
Registration Statement on Form S-1 (Registration No. 33-61366) is incorporated
herein by reference.
5. Opinion of Greenebaum Doll & McDonald PLLC as to the legality of the
securities being registered.
23.1 Consent of Greenebaum Doll & McDonald PLLC (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
24 Powers of Attorney (included on signature page of the Registration
Statement).
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