SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Bojangles, Inc.
(Exact name of Registrant as specified in its charter)
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Delaware |
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9432 Southern Pine Boulevard
Charlotte, NC 28273 (704)
527-2675 |
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45-2988924 |
(State of Incorporation) |
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(Address, including zip code, and telephone number, including area code, of Registrants principal executive offices) |
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(I.R.S. Employer
Identification No.) |
BOJANGLES, INC.
AMENDED AND RESTATED 2011 EQUITY INCENTIVE PLAN
(Full Title of the Plan)
Eric M. Newman, Esq.
Executive Vice President, General Counsel and Secretary
Bojangles, Inc.
9432 Southern Pine Boulevard,
Charlotte, NC 28273
(704) 527-2675
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
With
Copies to:
Barry M. Abelson, Esq.
John P. Duke, Esq.
Scott
R. Jones, Esq.
Pepper Hamilton LLP
3000 Logan Square
Philadelphia, PA 19103
(215) 981-4000
CALCULATION
OF REGISTRATION FEE
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Title Of
Securities To
Be Registered |
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Amount
To Be Registered (1) |
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Proposed Maximum Offering Price
Per Share (2) (3) |
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Proposed Maximum Aggregate
Offering Price (2) (3) |
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Amount Of
Registration Fee |
Common Stock, par value $0.01 per share |
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4,047,313 shares |
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$24.60 (2) |
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$99,563,900 (2) |
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$11,569.33 |
Common Stock, par value $0.01 per share |
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4,452,687 shares |
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$3.77 (3) |
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$16,786,630 (3) |
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$1,950.61 |
TOTAL |
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8,500,000 shares |
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$116,350,530 |
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$13,519.94 |
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(1) |
This Registration Statement covers 8,500,000 shares of Common Stock, par value $0.01 per share (Common Stock), of Bojangles, Inc. (the Registrant) available for
issuance pursuant to awards under the Bojangles, Inc. Amended and Restated 2011 Equity Incentive Plan (the 2011 Plan). Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the Securities
Act), this Registration Statement also covers any additional shares of the Registrants Common Stock that become issuable under the 2011 Plan pursuant to awards by reason of any stock dividend, stock split or other similar
transaction that results in an increase in the number of the outstanding shares of the Registrants Common Stock. |
(2) |
The registration fee for the shares of Common Stock to be issued pursuant to the Plan was calculated in accordance with Rule 457(c) of the Securities Act, on the basis of $24.60 per share, the average high and low
prices of Common Stock par value $0.01 per share of the Registrant as reported on the NASDAQ Global Select Market on May 11, 2015. |
(3) |
The registration fee for the shares of Common Stock to be issued pursuant to outstanding options already granted under the Plan was calculated in accordance with Rule 457(h) of the Securities Act, based upon the
weighted average price per share of $3.77 at which the options may be exercised. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. |
Plan Information. |
The Registrant has sent or given or will send or give documents
containing the information specified by Part I of this Registration Statement to participants in the 2011 Plan to which this Registration Statement relates, as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the
Commission) under the Securities Act. The Registrant is not filing such documents with the Commission, but these documents constitute (along with the documents incorporated by reference into this Registration Statement
pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements of Section 10(a) of the Securities Act.
Item 2. |
Registrant Information and Employee Plan Annual Information. |
The Registrant will
furnish without charge to each person to whom the prospectus is delivered, upon the written or oral request of such person, a copy of any and all of the documents incorporated by reference, other than exhibits to such documents (unless such exhibits
are specifically incorporated by reference to the information that is incorporated). Requests should be directed to Bojangles, Inc., 9432 Southern Pine Boulevard, Charlotte, North Carolina 28273, Attention: Eric M. Newman, Executive Vice
President, General Counsel and Secretary, telephone number (704) 527-2675.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. |
Incorporation of Documents by Reference. |
The following documents of the Registrant and
the 2011 Plan, filed or to be filed with the Commission, are incorporated by reference in this Registration Statement as of their respective dates:
(a) Form S-1 filed by the Registrant on April 6, 2015 (File No. 333-203268) as most recently amended and all exhibits thereto (the
Form S-1);
(b) The Registrants prospectus dated May 7, 2015 filed with the Commission pursuant to
Rule 424(b) of the Securities Act in connection with its registration statement on the Form S-1, in which there is set forth the audited financial statements for the Registrants fiscal year ended December 28, 2014;
(c) all other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
Exchange Act), since April 6, 2015;
(d) The description of the Registrants Common Stock contained in
the registration statement on the Form S-1, which description is incorporated by reference into the Form 8-A filed with the Commission on May 4, 2015 pursuant to the Exchange Act, and any amendment or report filed for the purpose of further
updating such description; and
All documents subsequently filed by the 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 into this
Registration Statement and to be a part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with Commission rules shall not be deemed
incorporated by reference into this Registration Statement.
Any statement contained herein or in a document, all or a portion of which is
incorporated or deemed to be 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 or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or amended, to constitute a part of this Registration
Statement.
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 General Corporation
Law of Delaware (the DGCL) provides that a Delaware corporation may indemnify any person who is, or who is threatened to be made, 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 was an officer, director, employee or agent of such corporation, or is or was serving at the request of
such person as an officer, director, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys fees) actually and reasonably incurred by such person in connection with the defense or
settlement of such action, judgments, fines and amounts actually paid by such person in settlement of such action, suit or proceeding. The foregoing indemnity is subject to such person having acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the corporations best interests (except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation) and, with respect to
any criminal action or proceeding, had no reasonable cause to believe that such persons conduct was illegal.
Where an officer or
director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses that such officer or director has actually and reasonably incurred. The
Registrants amended and restated certificate of incorporation will provide for the indemnification of the Registrants directors and officers to the fullest extent permitted under the DGCL.
Expenses incurred by any officer or director in defending any such action, suit or proceeding in advance of its final disposition shall be
paid by us upon delivery to us of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified by us.
Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation
shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, except for liability for any:
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transaction from which the director derives an improper personal benefit; |
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act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; |
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unlawful payment of dividends or redemption of shares; or |
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breach of a directors duty of loyalty to the corporation or its stockholders. |
The
Registrants amended and restated certificate of incorporation will include such a provision.
Section 174 of the DGCL provides,
among other things, that a director who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption may be held liable for such actions. A director who was either absent when the unlawful actions
were approved, or dissented at the time, may avoid liability by causing his or her dissent to such actions to be entered in the books containing minutes of the meetings of the board of directors at the time such action occurred or immediately after
such absent director receives notice of the unlawful acts.
In connection with this offering, the Registrant intends to enter into
separate indemnification agreements with the Registrants directors and certain officers. Each indemnification agreement will provide, among other things, for indemnification to the fullest extent permitted by law and the Registrants
amended and restated certificate of incorporation and amended and restated bylaws against any and all expenses, judgments, fines, penalties and amounts paid in settlement of any claim. The indemnification agreements will provide for the advancement
or payment of all expenses to the indemnitee and for reimbursement to the Registrant if it is found that such indemnitee is not entitled to such indemnification under applicable law and the Registrants amended and restated certificate of
incorporation and amended and restated bylaws.
Item 7. |
Exemption from Registration Claimed. |
Not applicable.
The following exhibits are filed herewith or incorporated by reference as part of this
Registration Statement:
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Exhibit Number |
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Description |
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4.1 |
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Amended and Restated Certificate of Incorporation of Bojangles, Inc. (incorporated herein by reference to Exhibit 3.1 to the Registrants Current Report on Form 8-K filed on May 13, 2015). |
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4.2 |
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Amended and Restated Bylaws of Bojangles, Inc. (incorporated herein by reference to Exhibit 3.4 to Amendment No. 1 to the Registrants Registration Statement on Form S-1 (File No. 333-203268) filed on April 27,
2015). |
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4.3 |
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Bojangles, Inc. Amended and Restated 2011 Equity Incentive Plan (incorporated herein by reference to Exhibit 10.15 to Amendment No. 1 to the Registrants Registration Statement on Form S-1 (File No. 333-203268) filed on
April 27, 2015). |
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5.1* |
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Opinion of Pepper Hamilton LLP (counsel to the Registrant) as to the legality of the securities being registered. |
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10.1 |
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Bojangles, Inc. Amended and Restated 2011 Equity Incentive Plan (incorporated herein by reference to Exhibit 10.15 to Amendment No. 1 to the Registrants Registration Statement on Form S-1 (File No. 333-203268) filed on
April 27, 2015). |
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23.1* |
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Consent of KPMG LLP. |
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23.2* |
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Consent of Pepper Hamilton LLP (included in Exhibit 5.1). |
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24.1* |
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Power of Attorney (contained on signature page hereto). |
(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;
(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. Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the
effective registration statement; and
(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) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose
of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(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, each filing of the Registrants annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to
directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
The Registrant. 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 Charlotte, State of North Carolina, on this
13th day of May, 2015.
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BOJANGLES, INC. |
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/s/ Clifton Rutledge |
By: Clifton Rutledge |
Title: Director, President, and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Clifton Rutledge, M. John Jordan and
Eric M. Newman and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or
officer of Bojangles, Inc.) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as they or he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his 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 indicated on the dates indicated.
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Name |
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Title |
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Date |
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/s/ Clifton Rutledge
Clifton Rutledge |
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Director, President and Chief Executive Officer (principal executive officer) |
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May 13, 2015 |
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/s/ M. John Jordan
M. John Jordan |
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Senior Vice President of Finance and Chief Financial Officer (principal financial and accounting officer) |
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May 13, 2015 |
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/s/ Eric. M. Newman
Eric M. Newman |
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Executive Vice President, General Counsel and Secretary |
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May 13, 2015 |
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/s/ James R. Kibler
James R. Kibler |
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Non-Executive Chairman and Director |
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May 13, 2015 |
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/s/ Steven J. Collins
Steven J. Collins |
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Director |
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May 13, 2015 |
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/s/ Tommy L. Haddock
Tommy L. Haddock |
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Director |
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May 13, 2015 |
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/s/ William A. Kussell
William A. Kussell |
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Director |
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May 13, 2015 |
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Name |
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Title |
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Date |
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/s/ Steven M. Tadler
Steven M. Tadler |
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Director |
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May 13, 2015 |
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/s/ Christopher J. Doubrava
Christopher J. Doubrava |
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Director |
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May 13, 2015 |
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/s/ Robert E. Alderson
Robert E. Alderson |
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Director |
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May 13, 2015 |
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/s/ John E. Currie
John E. Currie |
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Director |
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May 13, 2015 |
EXHIBIT INDEX
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Exhibit Number |
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Description |
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4.1 |
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Amended and Restated Certificate of Incorporation of Bojangles, Inc. (incorporated herein by reference to Exhibit 3.1 to the Registrants Current Report on Form 8-K filed on May 13, 2015). |
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4.2 |
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Amended and Restated Bylaws of Bojangles, Inc. (incorporated herein by reference to Exhibit 3.4 to Amendment No. 1 to the Registrants Registration Statement on Form S-1 (File No. 333-203268) filed on April 27,
2015). |
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4.3 |
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Bojangles, Inc. Amended and Restated 2011 Equity Incentive Plan (incorporated herein by reference to Exhibit 10.15 to Amendment No. 1 to the Registrants Registration Statement on Form S-1 (File No. 333-203268) filed on
April 27, 2015). |
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5.1* |
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Opinion of Pepper Hamilton LLP (counsel to the Registrant) as to the legality of the securities being registered. |
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10.1 |
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Bojangles, Inc. Amended and Restated 2011 Equity Incentive Plan (incorporated herein by reference to Exhibit 10.15 to Amendment No. 1 to the Registrants Registration Statement on Form S-1 (File No. 333-203268) filed on
April 27, 2015). |
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23.1* |
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Consent of KPMG LLP. |
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23.2* |
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Consent of Pepper Hamilton LLP (included in Exhibit 5.1) |
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24.1* |
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Power of Attorney (contained on signature page hereto) |
Exhibit 5.1
3000 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, PA 19103-2799
215.981.4000
Fax 215.981.4750
May 13, 2015
Bojangles, Inc.
9432 Southern Pine Boulevard
Charlotte, North Carolina 28273
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Re: |
Registration Statement on Form S-8 |
Ladies and Gentlemen:
Reference is made to the registration statement on Form S-8 (the Registration
Statement) of Bojangles, Inc., a Delaware corporation (the Company), filed on the date hereof with the Securities and Exchange Commission (the
Commission) under the Securities Act of 1933, as amended (the Act). The Registration Statement covers up to 8,500,000 shares of the Companys common
stock, par value $0.01 per share (the Shares), issuable by the Company pursuant to awards granted or available for grant under the Companys Amended and Restated 2011 Equity Incentive Plan (the
2011 Plan).
We have examined the Registration Statement, including the
exhibits thereto, the originals or copies, certified or otherwise identified to our satisfaction, of the Second Amended and Restated Certificate of Incorporation and the Amended and Restated Bylaws of the Company, each as amended to date, the 2011
Plan, and such other documents as we have deemed appropriate in rendering this opinion. As to matters of fact, we have relied on representations of officers of the Company. In our examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the authenticity of all documents submitted to us as copies of originals.
Based on the foregoing, we are of the opinion that the Shares, when issued in accordance with the terms of the 2011 Plan, will be legally
issued, fully paid and non-assessable. This opinion is being furnished to you solely for submission to the Commission as an exhibit to the Registration Statement and, accordingly, may not be relied upon, quoted in any manner to, or delivered to any
other person or entity, without in each instance our prior written consent.
We express no opinion herein as to the law of any state or
jurisdiction other than the laws of the State of Delaware, including statutory provisions and all applicable provisions of the Constitution of the State of Delaware and reported judicial decisions interpreting such laws of the State of Delaware, and
the federal laws of the United States of America. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date
hereof.
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Philadelphia |
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Boston |
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Washington, D.C. |
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Detroit |
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New York |
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Pittsburgh |
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Berwyn |
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Harrisburg |
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Orange County |
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Princeton |
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Wilmington |
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www.pepperlaw.com
Bojangles, Inc.
Page 2
May 13, 2015
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement.
In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the Commission thereunder.
/s/ PEPPER HAMILTON LLP
PEPPER HAMILTON LLP
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Bojangles, Inc. and subsidiaries:
We consent to the use of our report with respect to the consolidated financial statements incorporated by reference herein.
/s/ KPMG LLP
Charlotte, North Carolina
May 13, 2015
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