As filed with the Securities and Exchange Commission on November 9, 1998.
Registration No. 333-
===============================================================================
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.
WADE S. ONEY EMPLOYMENT AGREEMENT
(Full Title of the Plan)
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CHARLES W. SCHNATTER
General Counsel
Papa John's International, Inc.
11492 Bluegrass Parkway, Suite 175
Louisville, Kentucky 40299
(502) 266-5200
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
====================================================================================================================
Title of Amount Proposed Proposed maximum Amount of
securities to be maximum offering aggregate registration
to be registered registered price per share(1) offering price(1) fee
- --------------------------------------------------------------------------------------------------------------------
Common Stock,
par value $.01 150,000 shares $38.25 $5,737,500 $1,595.03
====================================================================================================================
(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 November 6, 1998.
==============================================================================
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) 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 pursuant to 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") with the Securities and Exchange Commission (Commission File No.
0-21660) are incorporated by reference into this Registration Statement:
(a) Registrant's Annual Report on Form 10-K for the year ended December 28,
1997, as filed March 19, 1998;
(b) Registrant's Quarterly Reports on Form 10-Q for the quarters ended March
29, 1998, and June 28, 1998, as filed May 13, 1998, and August 12, 1998,
respectively; 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 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
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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 (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 or another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan
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(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.
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 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
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this 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 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 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 such 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.
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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 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 Registrant's Amended and Restated Certificate of Incorporation.
Exhibit 3.1 to the Registrant's Registration Statement on Form S-1 (Reg. No. 33-
61366) is incorporated herein by reference.
4.2 Registrant's Certificate of Amendment of its Amended and Restated
Certificate of Incorporation. Exhibit 3 to Registrant's Quarterly Report on
Form 10-Q for the quarterly period ended June 29, 1997 (Comm. File No. 0-21660)
is incorporated herein by reference.
4.3 Registrant's Restated By-Laws. Exhibit 3.2 to the Registrant's
Registration Statement on Form S-1 (Reg. 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).
99. Amendment to Chief Operating Officer Agreement dated October 9, 1997, by
and between the Company and Wade S. Oney. Exhibit 10.2 to Registrant's
Quarterly Report on Form 10-Q for the quarterly period ended September 29, 1997
(Comm. File No. 0-21660) is incorporated herein by reference.
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.
The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference to the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
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
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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 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 October 29,
1998.
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.
Signature Title Date
--------- ----- ----
/s/ John H. Schnatter Chairman, Chief Executive Officer and October 29, 1998
- --------------------------- Director (Principal Executive Officer)
John H. Schnatter
/s/ Charles W. Schnatter Senior Vice President, Secretary, October 29, 1998
- --------------------------- General Counsel and Director
Charles W. Schnatter
/s/ Blaine E. Hurst Vice Chairman, President and Director October 29, 1998
- ---------------------------
Blaine E. Hurst
/s/ E. Drucilla Milby Chief Financial Officer and Treasurer October 29, 1998
- --------------------------- (Principal Financial Officer)
E. Drucilla Milby
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/s/ J. David Flanery Vice President and Corporate Controller October 29, 1998
- --------------------------- (Principal Accounting Officer)
J. David Flanery
/s/ O. Wayne Gaunce Director October 29, 1998
- ---------------------------
O. Wayne Gaunce
/s/ Jack A. Laughery Director October 29, 1998
- ---------------------------
Jack A. Laughery
/s/ Michael W. Pierce Director October 29, 1998
- ---------------------------
Michael W. Pierce
/s/ Richard F. Sherman Director October 29, 1998
- ---------------------------
Richard F. Sherman
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Exhibit 5
[LETTERHEAD OF GREENEBAUM DOLL & MCDONALD PLLC]
November 9, 1998
Papa John's International, Inc.
11492 Bluegrass Parkway, Suite 175
Louisville, Kentucky 40299-2370
Ladies and Gentlemen:
We have acted as legal counsel in connection with the preparation of a
Registration Statement on Form S-8 under the Securities Act of 1933, as amended
(the "Registration Statement"), covering an aggregate of 150,000 shares of
Common Stock, par value $.01 per share (the "Common Stock"), of Papa John's
International, Inc., a Delaware corporation (the "Company"), to be issued under
the Wade S. Oney Employment Agreement (the "Agreement").
We have examined and are familiar with the Amended and Restated Certificate of
Incorporation and By-Laws of the Company, and the various corporate records and
proceedings relating to the organization of the Company and proposed issuance of
the Common Stock. We have also examined such other documents and proceedings as
we have considered necessary for the purpose of this opinion.
Based on the foregoing, it is our opinion that the Common Stock has been duly
authorized and, when issued and paid for in accordance with the terms of the
Registration Statement and the Agreement, will be validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this Opinion as an exhibit to the
Registration Statement, and with such state securities administrators as may
require such opinion of counsel for the registration of the Common Stock. In
giving this consent, we do not thereby admit that we are within the category of
persons whose consent is required under Section 7 of the Securities Act of 1933,
as amended, or the Rules and Regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
/s/ Greenebaum Doll & McDonald PLLC
Greenebaum Doll & McDonald PLLC
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 Wade S. Oney Employment Agreement 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.
/s/ Ernst & Young LLP
Ernst & Young LLP
Louisville, Kentucky
November 6, 1998
