View:
As filed with the Securities and Exchange Commission on January 26,
1996.
Registration No. 33-71700
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
POST-EFFECTIVE AMENDMENT NO. TWO
Pizza Inn, Inc.
(Exact name of registrant as specified in its charter)
MISSOURI 47-0654575
(State of Incorporation) (Emp. Id. No.)
5050 Quorum Drive, Suite 500
Dallas, Texas 75240
(Address of Principal Executive Offices)
1992 STOCK AWARD PLAN
1993 STOCK AWARD PLAN
1993 OUTSIDE DIRECTORS STOCK AWARD PLAN
(Titles of Plans)
Agent for Service:
C. Jeffrey Rogers, President
Pizza Inn, Inc.
5050 Quorum Drive,
Suite 500
Dallas, Texas 75240
With copies to:
Donald W. Zentmeyer
Pizza Inn, Inc.
5050 Quorum Drive,
Suite 500
Dallas, Texas 75240
Documents Incorporated by Reference
1. Registration Statement on Form S-1 (as filed with the
Commission on January 23, 1991, file no. 33-38729);
2. Registration Statement on Form S-8 (as filed with the
Commission on November 15, 1993, file no. 33-71700);
3. Post-Effective Amendment No. One on Form S-8 (as filed
with the Commission on December 6, 1993, file no. 33-71700);
4. Form 10-K for the fiscal year ended June 25, 1995;
5. Form 10-K/A for the fiscal year ended June 25, 1995;
6. Form 10-Q for the fiscal quarter ended September 24,
1995; and
7. Definitive Proxy Statement for the Annual Shareholder
Meeting to be held January 24, 1996.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Immediately following is the Prospectus prepared in accordance
with the requirements of Form S-3 for use in the reofferings and
resales by the class of persons described therein.
[The remainder of this page is intentionally left blank.]
Pizza Inn, Inc.
Cross-Reference Sheet Showing Location in Prospectus
of Information Required by Items of Form S-3
Pursuant to Item 501(b) of Regulation S-K
Form S-3 Item and Heading Location in Prospectus
1. Forepart of the Registration Statement Front Cover Page
and Outside Front Cover Page of
Prospectus
2. Inside Front and Outside Back Cover Inside Front Cover Page
Pages of Prospectus
3. Summary Information, Risk Factors and The Corporation, Risk Factors
Ratio of Earnings to Fixed Charges
4. Use of Proceeds Not applicable
5. Determination of Offering Price Not applicable
6. Dilution Not applicable
7. Selling Security Holders Selling Stockholders
8. Plan of Distribution Plan of Distribution
9. Description of Securities to be Not applicable
Registered
10. Interests of Named Experts and Counsel Not applicable
11. Material Changes Not applicable
12. Incorporation of Certain Information Incorporation of Certain
by Reference Documents by Reference
13. Disclosure of Commission Position on Indemnification of
Indemnification for Securities Act Directors and Officers
Liabilities
PROSPECTUS
PIZZA INN, INC.
a Missouri corporation
2,500,000 Shares of Common Stock
(par value $0.01 per share)
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY, THE SECURITIES COVERED HEREBY IN
ANY STATE OR OTHER JURISDICTION IN WHICH, OR TO ANY PERSON TO WHOM,
IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
THESE SECURITIES INVOLVE SOME RISK. PLEASE SEE "RISK
FACTORS."
This Prospectus relates to the offer and sale of shares of Common
Stock of Pizza Inn, Inc. ("Pizza Inn" or the "Corporation"), par
value $0.01 per share (the "Common Stock"), that may be offered
hereby from time to time by any or all of the selling stockholders
as described herein (the "Selling Stockholders") for their own
benefit. The Corporation will receive no part of the proceeds of
sales made hereunder. All expenses of registration incurred in
connection with this offering are being borne by the Corporation,
but all selling and other expenses incurred by the Selling
Stockholders will be borne by such Selling Stockholders. None of
the shares offered pursuant to this Prospectus have been registered
prior to the filing of the Registration Statement on Form S-8 with
the Securities and Exchange Commission on November 15, 1993 (the
"Registration Statement") of which this Prospectus is a part, in
accordance with General Instruction C to Form S-8.
The Common Stock offered hereby would be acquired by Selling
Stockholders pursuant to the exercise of options granted under the
Corporation's 1992 Stock Award Plan, 1993 Stock Award Plan and 1993
Outside Directors Stock Award Plan (the "Plans"). The exact number
of shares of Common Stock which may be acquired by the Selling
Stockholders, and the number of such shares which may be reoffered
and resold pursuant to this Prospectus, cannot presently be
determined.
All or a portion of the shares of Common Stock offered hereby may
be offered for sale, from time to time, on the National Association
of Securities Dealers, Inc. ("NASD") Automated Quotation system
("NASDAQ"), or otherwise, at prices and terms then obtainable. All
brokers' commissions, concessions or discounts will be paid by the
Selling Stockholders.
The Selling Stockholders and any broker executing selling orders
on behalf of the Selling Stockholders may be deemed to be an
"underwriter" within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"), in which event any commissions
received by such broker may be deemed to be underwriting
commissions under the Securities Act.
The Common Stock of the Corporation is listed on the NASDAQ
system under the symbol "PZZI". On December 1, 1995, the last
reported price of the Corporation's Common Stock on the NASDAQ
system was $4.50.
No person has been authorized to give any information or to make
any representations, other than those contained in this Prospectus,
and, if given or made, such information or representation should
not be relied upon as having been authorized by the Corporation.
Neither the delivery of this Prospectus nor any distribution of the
securities made under this Prospectus shall under any circumstances
create any implication that there has been no change in the affairs
of the Corporation or in any other information contained herein
since the date of the Prospectus.
The date of this Prospectus is January 26, 1996.
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TABLE OF CONTENTS
Page
Available Information. . . . . . . . . . . . . . . . . . 4
Incorporation of Certain Documents by Reference. . . . . 4
The Corporation. . . . . . . . . . . . . . . . . . . . . 5
Risk Factors . . . . . . . . . . . . . . . . . . . . . . 5
Selling Stockholders . . . . . . . . . . . . . . . . . . 7
Plan of Distribution . . . . . . . . . . . . . . . . . . 9
Indemnification of Directors and Officers. . . . . . . . 9
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy statements
and other information with the Securities and Exchange Commission
("SEC"). Such reports, proxy statements and other information can
be inspected and copied at the office of the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549
and at the Commission's Regional Offices located at the Jacob K.
Javits Federal Building, 26 Federal Plaza, New York, New York 10007
and the Everett McKinley Dirsken Building, 219 South Dearborn
Street, Chicago, Illinois 60604. Copies of such material can be
obtained from the Public Reference Section of the Commission at the
prescribed rates by writing to the Commission at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, or by accessing
electronically submitted filings from EDGAR workstations in the
SEC's Public Reference Rooms in Washington, D. C., New York, New
York, or Chicago, Illinois, or through commercial dissemination
services.
The securities described in this Prospectus are listed and
traded on the NASDAQ Small Cap Market, and information concerning
the Corporation can be inspected and copied at the NASD's offices
at its Market Listing Qualifications Department, 1735 "K" Street,
N.W., Washington, D. C. 20006-1500.
This Prospectus does not contain all of the information set
forth in the Registration Statement of which this Prospectus is a
part and which the Corporation has filed with the SEC. For further
information with respect to the Corporation and the Common Stock
offered hereby, reference is made to the Registration Statement,
including the exhibits filed as part thereof, copies of which may
be inspected at, or obtained at, prescribed rates from the Public
Reference Section of the SEC.
The Corporation hereby undertakes to provide without charge to
each person to whom a copy of this Prospectus is delivered, upon
written or oral request of such person, a copy of any and all of
the information that has been incorporated by reference (other than
the exhibits to such documents unless such exhibits are
specifically incorporated by reference into such documents).
Requests should be directed to Pizza Inn, Inc., Attention:
Corporate Secretary, 5050 Quorum Drive, Suite 500, Dallas, Texas
75240, telephone number (214) 701-9955.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by the Corporation
with the SEC and are incorporated by reference herein:
(i) The Corporation's Annual Report on Form 10-K for the
fiscal year ended June 25, 1995.
(ii) All other reports filed by the Corporation pursuant to
Section 13(a) and 15(d) of the Exchange Act since the end
of the Corporation's fiscal year ended June 25, 1995.
(iii) The description of the Common Stock has been
incorporated by reference to the Company's
Registration Statement on Form S-1 (as filed with
the Securities and Exchange Commission on January
23, 1991, File No. 33-38729) ("DESCRIPTION OF
SECURITIES").
All documents filed by the Corporation pursuant to Sections
13(a) and (c), 14 and 15(d) of the Exchange Act after the date of
this Prospectus and prior to the filing of a post-effective
amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this Prospectus
and to be a part hereof from the date of the filing of all such
documents.
THE CORPORATION
The Corporation was incorporated in the state of Missouri in
1983 under the name of Concept Development, Inc. and thereafter
changed its name to Pizza Inn, Inc. The executive offices of Pizza
Inn are located at 5050 Quorum Drive, Suite 500, Dallas, Texas
75240 and its telephone number is (214) 701-9955.
RISK FACTORS
The following is intended as a summary of several risk factors
associated with an investment in the Common Stock.
Financial Liquidity
Because substantially all of the Corporation's assets are
pledged to secure its obligations under the Corporation's bank loan
agreement, additional financing may not be available.
Additionally, portions of the Corporation's cash flow will be
required for repayment of loans and other obligations of the
Corporation. Therefore, any additional cash needs must generally
be supplied through cash generated from ongoing operations.
Dividends
Under the Corporation's bank loan agreement, the Corporation
is not permitted to pay dividends or make other distributions on
the Common Stock (except distributions of additional shares of
stock). The Corporation has not paid any dividends on its Common
Stock during the past five years and has no present intention of
paying cash dividends in the future. Future dividend policy with
respect to the Common Stock will be determined by the Board of
Directors of the Corporation, taking into consideration factors
such as the bank loan, future earnings, capital requirements and
the financial condition of the Corporation.
Competition
The restaurant business is highly competitive and susceptible
to changes in the eating preferences of the public. The number of
pizza restaurants is extensive and the Corporation's franchisees
have numerous competitors in the restaurant and food service
business in general. Some of those competitors have greater name
recognition and are better capitalized than the Corporation and
offer alternative menu items at equivalent prices.
Management Risk Factors
The Corporation is dependent in part upon the services of Mr.
C. Jeffrey Rogers, the President and Chief Executive Officer. The
Corporation has entered into an employment agreement with Mr.
Rogers, and he is also a principal shareholder. The payments on
loans made under the Corporation's bank loan agreement may be
accelerated if Mr. Rogers does not retain beneficial ownership of
at least 15% of the Corporation's Common Stock.
Experienced and competent managers are critical to the success
of a restaurant. This is especially true for Pizza Inn restaurants
which are located in areas across the U.S. and in other countries
distant from the Corporation's headquarters in Dallas, Texas.
Although the Corporation selects qualified and experienced
franchisees, it is the responsibility of the franchisees to hire
and train qualified managers for their restaurants.
Net Operating Loss Carryforwards
The Corporation has developed a business plan that includes
the utilization of the net operating losses currently held by the
Corporation for tax purposes and believes that it will realize
substantial benefit from the current and future utilization of net
operating loss carryforwards to reduce federal income tax
liability. While there can be no certainty that the Corporation
will be able to fully utilize the net operating losses for tax
purposes, the Corporation is presently unaware of the occurrence
of any event which would result in the inability to fully utilize
such losses for tax purposes. Certain provisions of the
Corporation's Restated Articles of Incorporation are intended to
prevent changes in ownership of the Common Stock that might impose
limitations on the use of such losses for tax purposes.
Indebtedness
The Corporation is obligated for indebtedness that is secured
by all of its assets. Such indebtedness may leave the Corporation
vulnerable to certain risks, including possible unavailability of
additional financing in the future for working capital, capital
expenditures or other purposes, and possible increases in interest
expense due to the variable interest rates on the indebtedness.
SELLING STOCKHOLDERS
The shares of Common Stock covered by this Prospectus are
being registered for reoffers and resales by Selling Stockholders
of the Corporation who may acquire such shares pursuant to the
exercise of options granted or to be granted under the Plans. The
Selling Stockholders named below may reoffer and resell all, a
portion, or none of the shares that they acquire pursuant to the
exercise of options under the Plans.
Key employees of the Corporation and its subsidiaries
(including officers and directors) and nonemployee directors of the
Corporation who may exercise options and acquire Common Stock under
the Plans may be added, from time to time, to the table of Selling
Stockholders listed below, either by a post-effective amendment
hereto or by a prospectus supplement filed pursuant to Rule 424(c)
under the Securities Act.
The following table shows the names of the Selling
Stockholders, their positions with the Corporation and the number
of shares of Common Stock known by the Corporation to be
beneficially owned by each of the Selling Stockholders, as of
December 1, 1995, the number of shares covered by this Prospectus
and the amount of and the percentage of (if one percent or more)
the class to be owned by each Selling Stockholder if such Selling
Stockholder were to sell all of the shares of Common Stock covered
by this Prospectus:
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Amount to be held after
the Offering (1)
Position No. of Shares No. of Shares Number
Selling with the Beneficially Covered by of Percentage
Stockholders Corporation Owned (1) this Shares of Class
Prospectus (2) (3) (4)
C. Jeffrey President, Chief 3,938,868 700,000 3,238,868 24.3%
Roger Executive Officer
Ronald W. Executive Vice 690,798 600,000 90,798 less than 1%
Parker President, Chief
Operating Officer
Jack M. Vice President 166,771 115,000 51,441 less than 1%
Whitehurst of International
Development
Robert A. Vice President of 62,403 95,000 8,403 less than 1%
Soria Restaurant
Development
Donald W. General Counsel 72,711 91,000 6,711 less than 1%
Zentmeyer & Secretary
Amy E. Controller & 28,918 45,000 13,918 less than 1%
Manning Treasurer
Ward Vice President 61,751 40,000 39,751 less than 1%
Olgreen of International
Sales & Brand R & D
Bobby L. Director 137,600 30,000 107,600 less than 1%
Clairday
Don G. Director 102,000 50,000 72,000 less than 1%
Navarro
Ramon D. Director 40,646 20,323 20,323 less than 1%
Phillips
Steve A. Chairman of 23,783 15,283 8,500 less than 1%
Ungerman the Board
F. Jay Director 10,000 5,000 5,000 less than 1%
Taylor
(1) Includes shares for vested stock options that are presently
exercisable, subject to forfeiture, but have not been
exercised.
(2) Options for shares that are vested or will vest at various
times through July 1, 1998. The Corporation does not know
when or if the Selling Stockholders will exercise their
options under the Plans or if the options may expire before
exercise or be forfeited. Each Selling Stockholder may sell
all, a portion or none of the shares acquired pursuant to the
exercise of options granted under the Plans.
(3) Assumes all options have vested and are exercised and all
shares so acquired have been sold.
(4) Based upon 13,330,301 shares of Common Stock outstanding at
December 1, 1995.
PLAN OF DISTRIBUTION
Any shares of Common Stock sold pursuant to this Prospectus
will be sold by the Selling Stockholders for their own accounts and
they will receive all proceeds from any such sales. The
Corporation will receive none of the proceeds from the sale of
shares which may be offered hereby but will receive funds upon the
exercise of the options pursuant to which the Selling Stockholders
will acquire the shares covered by this Prospectus, which funds
will be used for working capital purposes. The Selling
Stockholders have not advised the Corporation of any specific plans
for the distribution of the shares of Common Stock covered by this
Prospectus, but, if and when shares are sold, it is anticipated
that the shares will be sold from time to time primarily in
transactions on the NASDAQ Small Capital Market at the market price
then prevailing, although sales may also be made in negotiated
transactions or otherwise, at prices related to such prevailing
market price or otherwise. If shares of Common Stock are sold
through brokers, the Selling Stockholders may pay customary
brokerage commissions and charges. The Selling Stockholders may
effect such transactions by selling shares to or through broker-dealers,
and such broker-dealers may receive compensation in the
form of discounts, concessions or commissions from the Selling
Stockholders and/or the purchasers of shares for whom such broker-dealers
may act as agent or to whom they may sell as principal, or
both (which compensation as to a particular broker-dealer might be
in excess of customary commission). The Selling Stockholders and
any broker-dealers that act in connection with the sale of the
shares hereunder might be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act, and any commissions
received by them and any profit on the resale of shares as
principal might be deemed to be underwriting discounts and
commissions under the Securities Act.
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Indemnification with Respect to Third Party Actions
Article XI of the By-laws of the Corporation contains
provisions that provide for the indemnification of directors,
officers, employees and agents of the Corporation under certain
circumstances. Generally, the Corporation will indemnify one who
is made a party or threatened to be made a party in an action, suit
or proceeding by reason of the fact that he or she is or was a
director, officer, employee or agent. Indemnification includes
expenses, taxes, fines, judgments, settlements and attorneys' fees.
Indemnification will only occur if the person acted in good faith
and in a manner he or she reasonably believed to be in the best
interest of the Corporation.
Indemnification with Respect to Actions by or in the Right of the
Corporation
Article XI of the By-laws of the Corporation also provides for
indemnification for persons who are or who are threatened to be
made a party to actions by or in the right of the Corporation.
Indemnification covers expenses, including attorneys' fees, and
will only be paid if the person in question acted in good faith and
in a manner he or she reasonably believed to be in the best
interest of the Corporation. Indemnification will not be permitted
upon a finding that the person committed negligence or misconduct
in the discharge of his or her duties to the Corporation.
In any case, indemnification will only occur if ordered by a
court or upon the determination by (1) a majority vote of a quorum
consisting of disinterested directors, (2) if such quorum is not
obtainable, or, even if obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (3) a majority of shareholders, that the one applying
for indemnification has met the applicable standards of Article XI.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, or persons
controlling the Corporation pursuant to the foregoing provisions,
the Corporation has been informed that in the opinion of the SEC
such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents and all documents subsequently filed
by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment indicating that all securities offered
have been sold or which deregisters all securities then remaining
unsold, have been incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K to
the shareholders for the fiscal year ended June
25, 1995;
(b) The Registrant's Form 10-K/A for the fiscal
year ended June 25, 1995;
(c) The following reports filed since June 25,
1995, the end of the Registrant's last fiscal
year:
(1) Form 10-Q for the fiscal quarter ended
September 24, 1995; and
(2) Definitive Proxy Statement for the Annual
Shareholders Meeting to be held January
24, 1996.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
There are no items to report.
Item 6. Indemnification of Directors and Officers.
The Revised Statutes of Missouri, Chapter 351, General
Business Corporations, Section 351.355, provides as
follows:
351.355. Officer, director or employee of corporation
indemnified, when.
1. A corporation created under laws of this state may
indemnify any person who was or is a party 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 the corporation, by reason
of the fact that he is or was 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 expenses, including attorneys' fees, judgments,
fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such
action, suit, or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit, or proceeding by
judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act
in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal
action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
2. The corporation may indemnify any person who was or
is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in
its favor by reason of the fact that he is or was 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 expenses, including attorneys' fees,
and amounts paid in settlement actually and reasonably
incurred by him in connection with the defense or
settlement of the action or suit if he acted in good
faith and in a manner he reasonably believed to be in or
not opposed to the best interest of the corporation;
except that no indemnification shall be made in respect
of any claim, issue or matter as to which such person
shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the
corporation unless and only to the extent that the court
in which the action or suit was brought determines upon
application that, despite the adjudication of liability
and in view of all the circumstances of the case, the
person is fairly and reasonably entitled to indemnity
for such expenses which the court shall deem proper.
3. To the extent that a director, officer, employee or
agent of the corporation has been successful on the
merits or otherwise in defense of any action, suit, or
proceeding referred to in subsections 1 and 2 of this
section, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses,
including attorneys' fees, actually and reasonably
incurred by him in connection with the action, suit, or
proceeding.
4. Any indemnification under subsections 1 and 2 of
this section, unless ordered by a court, shall be made
by the corporation only as authorized in the specific
case upon a determination that indemnification of the
director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard
of conduct set forth in this section. The determination
shall be made by the board of directors by a majority
vote of a quorum consisting of directors who were not
parties to the action, suit, or proceeding, or if such
a quorum is not obtainable, or even if obtainable a
quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or by
the shareholders.
5. Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the
corporation in advance of the final disposition of the
action, suit, or proceeding as authorized by the board
of directors in the specific case upon receipt of an
undertaking by or on behalf of the director, officer,
employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be
indemnified by the corporation as authorized in this
section.
6. The indemnification provided by this section shall
not be deemed exclusive of any other rights to which
those seeking indemnification may be entitled under the
articles of incorporation or bylaws or any agreement,
vote of shareholders or disinterested directors or
otherwise, both as to action in his official capacity
and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and
administrators of such a person.
7. A corporation created under the laws of this state
shall have the power to give any further indemnity, in
addition to the indemnity authorized or contemplated
under other subsections of this section, including
subsection 6, to any person who is or was a director,
officer, employee or agent, or to any person who 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, provided such further indemnity is either
(i) authorized, directed, or provided for in the
articles of incorporation of the corporation or any duly
adopted amendment thereof or (ii) is authorized,
directed, or provided for in any bylaw or agreement of
the corporation which has been adopted by a vote of the
shareholders of the corporation, and provided further
that no such indemnity shall indemnify any person from
or on account of such person's conduct which was finally
adjudged to have been knowingly fraudulent, deliberately
dishonest or willful misconduct. Nothing in this
subsection shall be deemed to limit the power of the
corporation under subsection 6 of this section to enact
bylaws or to enter into agreements without shareholder
adoption of the same.
8. The corporation may purchase and maintain insurance
on behalf of any person who is or was 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
and incurred by him in any such capacity, or arising out
of his status as such, whether or not the corporation
would have the power to indemnify him against such
liability under the provisions of this section.
9. Any provision of this chapter to the contrary
notwithstanding, the provisions of this section shall
apply to all existing and new domestic corporations,
including but not limited to banks, trust companies,
insurance companies, building and loan associations,
savings bank and safe deposit companies, mortgage loan
companies, corporations formed for benevolent,
religious, scientific or educational purposes and
nonprofit corporations.
10. For the purpose of this section, 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, officer, employee or agent 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 section with respect to the resulting
or surviving corporation as he would if he had served
the resulting or surviving corporation in the same
capacity.
11. For purposes of this section, the term "other
enterprise" shall include employee benefit plans; the
term "fines" shall include any excise taxes assessed on
a person with respect to an employee benefit plan; and
the term "serving at the request of the corporation"
shall include any service as a director, officer,
employee or agent of the corporation which imposes
duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee
benefit plan, its participants, or beneficiaries; and a
person who acted in good faith and in a manner he
reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as
referred to in this section.
Article XI of the Corporation's Restated Articles of
Incorporation provides as follows:
11.1 The Corporation may agree to the terms and
conditions upon which any director or officer accepts
his office or position and in its By-laws or by contract
may agree to indemnify and protect each and all of such
persons and any person who, at the request of the
Corporation served as a director or officer of another
Corporation in which this Corporation owned stock
against all costs and expenses reasonably incurred by
any or all of them, and all liability imposed or
threatened to be imposed upon any or all of them, by
reason of or arising out of their or any of them being
or having been a director or officer of this Corporation
or of such other corporation; but any such By-law or
contractual provision shall not be exclusive of any
other right or rights of any such director or officer to
be indemnified and protected against such costs and
liabilities which he may otherwise possess.
11.2 The Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or
proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right
of this Corporation) by reason of the fact that he is or
was a director, officer, employee or agent of this
Corporation, or is or was serving at the request of this
Corporation as a director, officer, employee, partner,
trustee or agent of another corporation, partnership,
joint venture, trust or other enterprise against
expenses (including attorneys' fees), judgments, fines,
taxes and amounts paid in settlement actually and
reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not
opposed to the best interests of this Corporation, and,
with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act
in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests
of this Corporation, and, with respect to any criminal
action or proceeding, that he had reasonable cause to
believe that his conduct was unlawful.
11.3 This Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit by or in
the right of this Corporation to procure a judgment in
its favor by reason of the fact that he is or was a
director, officer, employee or agent of this
Corporation, or is or was serving at the request of this
Corporation as a director, officer, employee, partner,
trustee or agent of another corporation, partnership,
joint venture, trust or other enterprise against
expenses (including attorneys' fees) and amounts paid in
settlement actually and reasonably incurred by him in
connection with the defense or settlement of such action
or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best
interests of this Corporation except that no
indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in
the performance of his duty to the Corporation unless
and only to the extent that the Court in which such
action or suit was brought shall determine upon
application that, despite the adjudication of liability
but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity
for such expenses which the Court shall deem proper.
Any indemnification under this Article XI (unless
ordered by a Court) shall be made by this Corporation
only as authorized in the specific instance upon a
determination that indemnification of the director,
officer, employee, partner, trustee or agent is proper
in the circumstances because he has met the applicable
standard of conduct set forth in this Article XI. Such
determination shall be made (1) 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, or (2) if such quorum is not obtainable, or
even if obtainable, a quorum of disinterested Directors
so directs, by independent legal counsel in a written
opinion, or (3) by the shareholders. To the extent that
a director, officer, employee or agent of the
Corporation has been successful on the merits or
otherwise in defense of any action, suit, or proceeding
referred to in this Article XI, or in defense of any
claim, issue or matter therein, he shall be indemnified
against expenses, including attorneys' fees, actually
and reasonably incurred by him in connection with the
action, suit, or proceeding.
11.4 Expenses incurred in defending any actual or
threatened civil or criminal action, suit or proceeding
may be paid by this Corporation in advance of the final
disposition of such action, suit or proceeding as
authorized by the Board of Directors in the specific
instance upon receipt of an undertaking by or on behalf
of the director, officer, employee, partner, trustee or
agent to repay such amount unless it shall be ultimately
determined that he is entitled to be indemnified by the
Corporation as authorized in this Article XI.
11.5 The indemnification provided by this Article XI
shall not be deemed exclusive of any other rights to
which those seeking indemnification may be entitled
under any By-law, agreement, vote of shareholders or
disinterested Directors or otherwise, both as to action
in his official capacity and as to action in another
capacity while holding such office, and shall continue
as to a person who has ceased to be a director, officer,
employee, partner, trustee or agent and shall inure to
the benefit of the heirs, executors and administrators
of such a person.
11.6 For the purposes of this Article XI, references to
this "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, officer, employee, partner,
trustee or agent of such a constituent corporation as a
director, officer, employee, partner, trustee or agent
of another enterprise shall stand in the same position
under the provisions of this Article XI with respect to
the resulting surviving corporation in the same
capacity.
11.7 In the event any provision of this Article XI shall
be held invalid by any court of competent jurisdiction,
such holding shall not invalidate any other provisions
of this Article XI and any other provisions of this
Article XI shall be construed as if such invalid
provisions had not been contained in this Article XI.
Article XI of the Corporation's By-laws provides as follows:
INDEMNIFICATION OF OFFICERS AND DIRECTORS
AGAINST LIABILITIES AND EXPENSE IN ACTIONS
1. Indemnification with Respect to Third Party
Actions. The Corporation shall indemnify any person who
was or is a party, or is threatened to be made a party
to any threatened, pending or completed action, suit or
proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right
of this Corporation) by reason of the fact that he is or
was a director, officer, employee or agent of this
Corporation, or is or was serving at the request of this
Corporation as a director, officer, employee, partner,
trustee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines,
taxes and amounts paid in settlement, actually and
reasonably incurred by him in connection with such
action, suit or proceeding, if he acted in good faith
and in a manner he reasonably believed to be in or not
opposed to the best interests of this Corporation, and,
with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act
in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests
of this Corporation, and, with respect to any criminal
action or proceeding, that he had reasonable cause to
believe that his conduct was unlawful.
2. Indemnification with Respect to Actions by or in
the Right of the Corporation. This Corporation shall
indemnify any person who was or is a party, or is
threatened to be made a party to any threatened, pending
or completed action, suit by or in the right of this
Corporation to procure a judgment in its favor by reason
of the fact that he is or was a director, officer,
employee or agent of this Corporation, or is or was
serving at the request of this Corporation as a
director, officer, employee, partner, trustee or agent
of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by him
in connection with the defense or settlement of such
action or suit, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to
the best interests of this Corporation, except that no
indemnification shall be made in respect of any claim,
issue or matter if such person shall have been adjudged
to be liable for negligence or misconduct in the
performance of his duty to the Corporation, unless and
only to the extent that the court in which such action
or suit was brought, shall determine upon application
that, despite the adjudication of liability, but in view
of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper. Any
indemnification under this Article XI (unless ordered by
a court) shall be made by this Corporation only as
authorized in the specific instance upon a determination
that indemnification of the director, officer, employee,
partner, trustee or agent is proper in the circumstances
because he has met the applicable standard of conduct
set forth in this Article XI. Such determination shall
be made (1) 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, or (2) if such
quorum is not obtainable, or, even if obtainable, a
quorum of disinterested Directors so directs, by
independent legal counsel in a written opinion, or (3)
by the shareholders. To the extent that a director,
officer, employee or agent of the Corporation has been
successful on the merits or otherwise in defense of any
action, suit, or proceeding referred to in this Article
XI, or in defense of any claim, issue or matter therein,
he shall be indemnified against expenses (including
attorneys' fees), actually and reasonably incurred by
him, in connection with the action, suit, or proceeding.
3. Payment of Expenses in Advance of Disposition of
Action. Expenses incurred in defending any actual or
threatened civil or criminal action, suit, or proceeding
may be paid by this Corporation in advance of the final
disposition of such action, suit, or proceeding, as
authorized by the Board of Directors in the specific
instance upon receipt of an undertaking by or on behalf
of the director, officer, employee, partner, trustee or
agent to repay such amount, unless it shall be
ultimately determined that he is entitled to be
indemnified by the Corporation as authorized in this
Article XI.
4. Indemnification Provided in this Article Non-Exclusive.
The indemnification provided in this Article
XI shall not be deemed exclusive of any other rights to
which those seeking indemnification may be entitled
under any By-law, agreement, vote of shareholders or
disinterested Directors or otherwise, both as to action
in his official capacity while holding such office, and
shall continue as to a person who has ceased to be a
director, officer, employee, partner, trustee or agent
and shall inure to the benefit of the heirs, executors
and administrator of such a person.
5. Definition of "Corporation". For the purposes of
this Article XI, references to this "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, officer, employee, partner, trustee or agent
of such a constituent corporation as a director,
officer, employee, partner, trustee or agent of another
enterprise shall stand in the same position under the
provision of this Article XI with respect to the
resulting surviving corporation in the same capacity.
6. Saving Clause. In the event any provision of this
Article XI shall be held invalid by any court of
competent jurisdiction, such holding shall not
invalidate any other provisions of this Article XI and
any other provisions of this Article XI shall be
construed as if such invalid provisions had not been
contained in this Article XI.
Item 7. Exemption from Registration Claimed.
Not Applicable
Item 8. Exhibits.
(4) Instruments defining the rights of security
holders, including indentures (Exhibits 3.1
and 3.2 of the Registrant's Form 10-K for the
fiscal year ended June 27, 1993) is
incorporated herein by reference
(5) Opinion re: legality
(23) (a) Consent of Experts and Counsel -- Price
Waterhouse, LLP
(b) Consent of Experts and Counsel -- Dixon Dixon
& Jessup, Ltd., L.L.P. (see Opinion - Exhibit
5)
(24) Power of Attorney (appearing on page 6 of the
Registration Statement and hereby incorporated
by reference)
Item 9. Undertakings
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 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 set forth 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; and
(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.
The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 16(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 may be permitted to directors, officers and
controlling persons of the Corporation pursuant to the foregoing
provisions, or otherwise, the Corporation has been advised that in
the opinion of the Securities and Exchange 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 Corporation of expenses incurred or paid
by a director, officer or controlling persons of the Corporation
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 Corporation
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 terms of the Securities Act
of 1933, the Registrant certifies that it has reasonable ground to
believe that it meets all of the requirements for filing a 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 Dallas, State of Texas, on January 26, 1996.
PIZZA INN, INC.
By: /s/ C. Jeffrey Rogers
C. Jeffrey Rogers, President
and Chief Executive Officer
(Principal Executive Officer)
By: /s/ Ronald W. Parker
Ronald W. Parker, Executive Vice
President and Chief Operating Officer
(Principal Financial Officer)
By: /s/ Amy E. Manning
Amy E. Manning
Controller and Treasurer
(Principal Accounting Officer)
POWER OF ATTORNEY
Mr. C. Jeffrey Rogers has executed this Post-Effective
Amendment No. Two to the Registration Statement on behalf of the
undersigned pursuant to the Power of Attorney granted to Mr. C.
Jeffrey Rogers by the undersigned. The Power of Attorney appears
on page 6 of the Registration Statement, and its terms are
incorporated herein by reference.
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 date indicated.
/s/ C. Jeffrey Rogers January 26, 1996
C. Jeffrey Rogers Date
Director and Vice Chairman,
Board of Directors
/s/ C. Jeffrey Rogers January 26, 1996
Steve A. Ungerman Date
Chairman, Board of Directors
/s/ C. Jeffrey Rogers January 26, 1996
Don G. Navarro, Director Date
/s/ C. Jeffrey Rogers January 26,1996
Ramon D. Phillips, Director Date
/s/ Ronald W. Parker January 26, 1996
Ronald W. Parker, Director Date
/s/ C. Jeffrey Rogers January 26, 1996
Bobby L. Clairday, Director Date
/s/ C. Jeffrey Rogers January 26, 1996
F. J. Taylor, Director Date
EXHIBIT INDEX
EXHIBIT PAGE
4 Instruments defining the rights of security
holders, including indentures. . . . . . . . . . . . 26
5 Opinion re: legality . . . . . . . . . . . . . . . 27
23 (a) Consent of Experts and Counsel
Price Waterhouse, LLP . . . . . . . . . . . . . . 31
(b) Consent of Experts and Counsel
Dixon Dixon & Jessup, Ltd., L.L.P.
(see Opinion - Exhibit 5) . . . . . . . . . . . . 33
24 Power of Attorney. . . . . . . . . . . . . . . . . . 34
EXHIBIT 4 INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS, INCLUDING INDENTURES (INCORPORATED BY REFERENCE)
EXHIBIT 5
OPINION RE: LEGALITY
DIXON DIXON & JESSUP LTD., L.L.P.
Suite 1800
One First National Center
Sixteenth & Dodge Streets
Omaha, Nebraska 68102-1504
(402) 345-3900
January 25, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
We have served as special counsel to Pizza Inn, Inc., a
Missouri corporation (the "Company"), in connection with the
preparation and filing of the Company's Registration Statement on
Form S-8 (the "Registration Statement"), filed with the Securities
and Exchange Commission (the "Commission") on November 15, 1993,
relating to 3,200,000 shares of the Company's Common Stock, par
value $.01 (the "Common Stock"), that are the subject of options
that are being awarded under the Company's 1992 Stock Award Plan,
the 1993 Stock Award Plan and the 1993 Outside Directors Stock
Award Plan (collectively, the "Plans"). We have also acted as
special counsel to the Company in connection with the preparation
and filing of Post-Effective Amendments Nos. 1 and 2 to the
Registration Statement, filed with the Commission on December 6,
1993, and January 19, 1996, respectively. Except as provided for
herein, all capitalized terms shall have the meanings assigned to
them in the Registration Statement.
We have reviewed a copy of the Restated Articles of
Incorporation of the Company and all amendments thereto and a copy
of the By-laws of the Company, both copies as certified to be true
and correct by the Secretary of the Company; and certified copies
of resolutions adopted by the board of directors of the Company
authorizing the issuance of the Common Stock and adoption of the
Plans. We have also examined originals (or copies certified or
otherwise identified to our satisfaction) of such other documents,
corporate records, certificates and instruments, and we have made
such investigations of law and fact, as we have deemed to be
necessary or appropriate.
We have relied upon officer certificates as to the
authenticity and completeness of all written materials delivered to
us as originals or copies or reproductions of originals, we have
assumed the genuineness of the signatures on all documents, we have
relied as to factual matters upon the truth and completeness of the
factual representations set forth in officer certificates, and we
have relied upon certain certificates of public officials.
We have assumed the due authorization and valid execution and
delivery of all of the documents submitted to us as originals,
conformity to the originals of all documents submitted to us as
copies or facsimiles and the corporate power and corporate
authority of all parties to execute, deliver and perform all of the
documents related to matters covered by this letter.
Based upon and subject to the following, and based upon our
consideration of applicable laws and such legal considerations as
we deem to be relevant, our opinion is as follows:
When, in accordance with the terms of the Plans,
consideration is paid and the Common Stock is issued, the
Common Stock will be legally issued, fully paid and
nonassessable.
It should be noted that the Common Stock is subject to
restrictions contained in the Company's Articles of Incorporation
with respect to acquisitions by or transfer to certain persons who
are or through purchase would become holders of ten percent (10%)
or more of the Common Stock. In addition, certain shares of Common
Stock issued to the Company's chief executive officer and other
officers and employees are subject to certain contractual limits on
transfer and vesting.
The opinion contained in this letter is limited to the
corporation laws of the State of Missouri and the federal laws of
the United States. The opinion contained in this letter is limited
to matters expressly set forth in this letter, and no opinion is to
be implied or may be inferred beyond the matters expressly so
stated.
The opinion contained in this letter is given as of the date
of this letter and is rendered exclusively for your benefit. This
opinion may not be relied upon by any other person or entity and
may not be circulated, quoted or cited, in whole or in part,
without our express prior written consent. We hereby consent to
use of this letter as an exhibit to the Registration Statement and
to such references to our firm as may be made therein.
Very truly yours,
/s/ Dixon Dixon & Jessup Ltd., L.L.P.
EXHIBIT 23 (a) CONSENT OF EXPERTS AND COUNSEL PRICE WATERHOUSE, LLP CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated August 17, 1995 appearing on page 15 of Pizza Inn Inc.'s Annual Report on Form 10-K/A for the year ended June 25, 1995. /s/ Price Waterhouse LLP PRICE WATERHOUSE LLP Dallas, Texas January 23, 1996
EXHIBIT 23 (b) CONSENT OF EXPERTS AND COUNSEL DIXON DIXON & JESSUP, LTD., L.L.P. (See Opinion - Exhibit 5)
EXHBIT 24 POWER OF ATTORNEY (INCORPORATED BY REFERENCE TO PAGE 6 OF THE REGISTRATION STATEMENT)