As filed with the Securities and Exchange Commission on March 31, 1998.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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PAPA JOHN'S INTERNATIONAL, INC.
(Exact name of registrant as specified in
its charter)
Delaware 61-1203323
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
11492 Bluegrass Parkway, Suite 175
Louisville, Kentucky 40299
(Address of Principal Executive Offices) (Zip Code)
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Papa John's International, Inc.
401(k) Plan
(Full title of the Plan)
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Charles W. Schnatter Copies to:
Senior Vice President, Secretary and General Counsel June N. King
Papa John's International, Inc. Greenebaum Doll & McDonald PLLC
11492 Bluegrass Parkway, Suite 175 3300 National City Tower
Louisville, Kentucky 40299 Louisville, Kentucky 40202
(502) 266-5200 (502) 589-4200
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed Proposed maximum Amount of
securities to be maximum offering price aggregate registration
to be registered (1) registered per share(2) offering price(1) fee
- ------------------------------------------------------------------------------------------------------------------------------
Common Stock,
par value $.01 100,000 shares $38.25 $3,825,000 $1,165.00
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the Plan described herein.
(2) 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 March 26, 1998.
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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") 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. 401(k) Plan (the "Plan") and interests in
the Plan:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 27, 1997, as filed March 19, 1998;
(b) 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 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
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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 (the "Restated Certificate") 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 Restated Certificate 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 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.
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A. Procedure. Any indemnification under this Article SIXTEENTH (unless ordered
by a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the General Corporation law of Delaware, as the same exists or hereafter may 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). Such
determination shall be made (i) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding (the "Disinterested Directors"), or (ii) if such a quorum of
Disinterested Directors is not obtainable, or, even if obtainable a quorum of
Disinterested Directors so directs, by independent legal counsel in a written
opinion or (iii) by the stockholders. The majority of Disinterested Directors
may, as they deem appropriate, elect to have the Corporation indemnify any other
employee, agent or other person acting for or on behalf of the Corporation.
B. Advances for Expenses. Costs, charges and expenses (including attorneys'
fees) incurred by a director or officer of the Corporation, or such other person
acting on behalf of the Corporation as determined in accordance with Paragraph
A, in defending a civil or criminal action, suit or proceeding shall be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director,
officer or other person to repay all amounts so advanced in the event that it
shall ultimately be determined that such director, officer or other person is
not entitled to be indemnified by the Corporation as authorized in this Article
SIXTEENTH. The majority of the Disinterested Directors may, in the manner set
forth above, and upon approval of such director, officer, employee, agent or
other person acting on behalf of the Corporation, authorize the Corporation's
counsel to represent such person, in any action, suit or proceeding, whether or
not the Corporation is a party to such action, suit or proceeding.
C. Procedure for Indemnification. Any indemnification or advance of costs,
charges and expenses under this Article SIXTEENTH, shall be made promptly, and
in any event within 60 days upon the written request of the person seeking
indemnification or advancement of expenses (hereinafter a "claimant"). The right
to indemnification or advances as granted by this Article SIXTEENTH shall be
enforceable by the claimant in any court of competent jurisdiction, if the
Corporation denies such request, in whole or in part, or if no disposition
thereof is made within 60 days. The claimant's costs and expenses incurred in
connection with successfully establishing his or her right to indemnification,
in whole or in part, in any such action shall also be indemnified by the
Corporation. It shall be a defense to any such action (other than an action
brought to enforce a claim for the advance of costs, charges and expenses under
this Article SIXTEENTH where the required undertaking, if any, has been received
by the Corporation) that the claimant has not met the standard of conduct set
forth in the General Corporation Law of Delaware, as the same exists or
hereafter may 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), but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel and its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the General Corporation Law of
Delaware, as the same exists or hereafter may 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), nor the fact that there has
been an actual determination by the Corporation (including
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its Board of Directors, its independent legal counsel and its stockholders)
that the claimant has not met such applicable standard of conduct, shall be
a defense to the action or create a presumption that the claimant has not
met the applicable standard of conduct.
D. Other Rights; Continuation of Right to Indemnification. The
indemnification and advancement of expenses provided by this Article
SIXTEENTH shall not be deemed exclusive of any other rights to which a
claimant may be entitled under any law (common or statutory), by-law,
agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his or her official capacity and as to action in
another capacity while holding office or while employed by or acting as
agent for the Corporation, and shall continue as to a person who has ceased
to be a director, officer, employee or agent of the Corporation, and shall
inure to the benefit of the estate, heirs, executors and administrators of
such person. All rights to indemnification under this Article SIXTEENTH
shall be deemed to be a contract between the Corporation and each director
and officer of the Corporation who serves or served in such capacity at any
time while this Article SIXTEENTH is in effect. Any repeal or modification
of this Article SIXTEENTH or any repeal or modification of relevant
provisions of the General Corporation Law of Delaware or any other
applicable laws shall not in any way diminish any rights to indemnification
of such director or officer or the obligations of the Corporation arising
hereunder with respect to any action, suit or proceeding arising out of, or
relating to, any actions, transactions or facts occurring prior to the
final adoption of such modification or repeal. For the purposes of this
Article SIXTEENTH, references to "the Corporation" include all constituent
corporations absorbed in a consolidation or merger as well as the resulting
or surviving corporation, so that any person who is or was a director or
officer of such a constituent corporation or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise shall stand in the same position under the provisions of this
Article SIXTEENTH, with respect to the resulting or surviving corporation,
as he would if he or she had served the resulting or surviving corporation
in the same capacity.
E. Insurance. The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was or has agreed to become a
director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him or her and incurred
by him or her on his or her behalf in any such capacity, or arising out of
his or her status as such, whether or not the Corporation would have the
power to indemnify him or her against such liability under the provisions
of this Article SIXTEENTH; provided, however, that such insurance is
available on acceptable terms, which determination shall be made by a vote
of a majority of the Board of Directors
F. Savings Clause. If this Article SIXTEENTH or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each person entitled to
indemnification under the first paragraph of this Article SIXTEENTH as to
all expense, liability and loss (including attorneys' fees, judgments,
fines, ERISA excise taxes, penalties and amounts to be paid in settlement)
actually and reasonably incurred or suffered by such person and for which
indemnification is available to such person pursuant to this Article
SIXTEENTH to the full extent permitted by any applicable portion of this
Article SIXTEENTH that shall not have been invalidated and to the full
extent permitted by applicable law."
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
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directors and officers with respect to actions arising out of the performance of
such officer's or director's duty in his or her capacity as such.
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.
5.1* Opinion of Greenebaum Doll & McDonald PLLC as to the legality of the
securities being registered.
23.1* Consent of Greenebaum Doll & McDonald PLLC.
23.2 Consent of Ernst & Young LLP.
24 Powers of Attorney (included on signature page of the Registration
Statement).
*An opinion of counsel regarding the legality of the securities being
registered hereunder is not required as the securities are not original issue.
The Registrant hereby undertakes that the Registrant will submit or has
submitted the Plan and any amendment thereto to the Internal Revenue Service
("IRS") in a timely manner and has made or will make all changes required by the
IRS in order to qualify the Plan.
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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
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(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 March 31,
1998.
PAPA JOHN'S INTERNATIONAL, INC.
By: /s/ Charles W. Schnatter
--------------------------------------------
Charles W. Schnatter
Senior Vice President, Secretary and General Counsel
Pursuant to the requirements of the Securities Act of 1933, the trustees
(or other persons who administer the employee benefit plan) have duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Denver, State of Colorado, on March
31, 1998.
PAPA JOHN'S INTERNATIONAL, INC. 401(k) PLAN
By: Papa John's International, Inc. Retirement Committee
By: /s/ Carole Trask
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Carole Trask, Chairperson
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.
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.
Signature Title Date
--------- ----- ----
/s/ John H. Schnatter Chairman, Chief Executive Officer and March 31, 1998
- --------------------- Director (Principal Executive Officer)
John H. Schnatter
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/s/ Charles W. Schnatter Senior Vice President, Secretary and March 31, 1998
- ------------------------------------ General Counsel
Charles W. Schnatter
/s/ Blaine E. Hurst President and Director March 31, 1998
- ---------------------------------------
Blaine E. Hurst
/s/ E. Drucilla Milby Chief Financial Officer and March 31, 1998
- -------------------------------------- Treasurer (Principal Financial Officer)
E. Drucilla Milby
/s/ J. David Flanery Vice President and Corporate Controller March 31, 1998
- --------------------------------------- (Principal Accounting Officer)
J. David Flanery
/s/ O. Wayne Gaunce Director March 31, 1998
- --------------------------------------
O. Wayne Gaunce
/s/ Jack A. Laughery Director March 31, 1998
- ---------------------------------------
Jack A. Laughery
/s/ Michael W. Pierce Director March 31, 1998
- ---------------------------------------
Michael W. Pierce
/s/ Richard F. Sherman Director March 31, 1998
- --------------------------------------
Richard F. Sherman
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Exhibit 23.2
Consent of Independent Auditors
We consent to the reference to our firm in the Registration Statement on Form
S-8 pertaining to the 401(k) Plan of Papa John's International, Inc. and to the
incorporation by reference therein of our report dated February 27, 1998, with
respect to the consolidated financial statements of Papa John's International,
Inc. and subsidiaries incorporated by reference in its Annual Report (Form 10-K)
for the year ended December 28, 1997, filed with the Securities and Exchange
Commission.
Louisville, Kentucky
March 26, 1998
