Securities Registration: Employee Benefit Plan (s-8)

 

 

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)

 

 

 

Delaware		9432 Southern Pine Boulevard Charlotte, NC 28273 [phone]		45-2988924
(State of Incorporation)		(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)		(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

[phone]

(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

[phone]

 

 

CALCULATION OF REGISTRATION FEE

 

Title Of Securities To Be Registered		Amount To Be Registered (1)		Proposed Maximum Offering Price Per Share (2) (3)		Proposed Maximum Aggregate Offering Price (2) (3)		Amount Of Registration Fee
Common Stock, par value $0.01 per share		4,047,313 shares		$24.60 (2)		$99,563,900 (2)		$11,569.33
Common Stock, par value $0.01 per share		4,452,687 shares		$3.77 (3)		$16,786,630 (3)		$1,950.61
TOTAL		8,500,000 shares				$116,350,530		$13,519.94

(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 Registrant’s 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 Registrant’s 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.

 

 

 

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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 [phone].

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 Registrant’s 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 Registrant’s 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 Registrant’s 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.

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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 corporation’s 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 person’s 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 Registrant’s amended and restated certificate of incorporation will provide for the indemnification of the Registrant’s 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:

 

•

transaction from which the director derives an improper personal benefit;

 

•

act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;

 

•

unlawful payment of dividends or redemption of shares; or

 

•

breach of a director’s duty of loyalty to the corporation or its stockholders.

The Registrant’s 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 Registrant’s directors and certain officers. Each indemnification agreement will provide, among other things, for indemnification to the fullest extent permitted by law and the Registrant’s 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 Registrant’s amended and restated certificate of incorporation and amended and restated bylaws.

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Item 7.

Exemption from Registration Claimed.

Not applicable.

 

Item 8.

Exhibits.

The following exhibits are filed herewith or incorporated by reference as part of this Registration Statement:

 

Exhibit Number		Description
4.1		Amended and Restated Certificate of Incorporation of Bojangles’, Inc. (incorporated herein by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on May 13, 2015).
4.2		Amended and Restated Bylaws of Bojangles’, Inc. (incorporated herein by reference to Exhibit 3.4 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 (File No. 333-203268) filed on April 27, 2015).
4.3		Bojangles’, Inc. Amended and Restated 2011 Equity Incentive Plan (incorporated herein by reference to Exhibit 10.15 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 (File No. 333-203268) filed on April 27, 2015).
5.1*		Opinion of Pepper Hamilton LLP (counsel to the Registrant) as to the legality of the securities being registered.
10.1		Bojangles’, Inc. Amended and Restated 2011 Equity Incentive Plan (incorporated herein by reference to Exhibit 10.15 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 (File No. 333-203268) filed on April 27, 2015).
23.1*		Consent of KPMG LLP.
23.2*		Consent of Pepper Hamilton LLP (included in Exhibit 5.1).
24.1*		Power of Attorney (contained on signature page hereto).

 

*	Filed herewith.

 

Item 9.

Undertakings.

(a) The undersigned Registrant hereby undertakes:

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

(i) to include any prospectus required by Section 10(a)(3) of the Securities Act;

(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.

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(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and each filing of an employee benefit plan’s 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.

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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.

 

BOJANGLES’, INC.

/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.

 

Name		Title		Date
/s/ Clifton Rutledge     Clifton Rutledge		Director, President and Chief Executive Officer (principal executive officer)		May 13, 2015
/s/ M. John Jordan     M. John Jordan		Senior Vice President of Finance and Chief Financial Officer (principal financial and accounting officer)		May 13, 2015
/s/ Eric. M. Newman     Eric M. Newman		Executive Vice President, General Counsel and Secretary		May 13, 2015
/s/ James R. Kibler     James R. Kibler		Non-Executive Chairman and Director		May 13, 2015
/s/ Steven J. Collins     Steven J. Collins		Director		May 13, 2015
/s/ Tommy L. Haddock     Tommy L. Haddock		Director		May 13, 2015
/s/ William A. Kussell     William A. Kussell		Director		May 13, 2015

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Name		Title		Date
/s/ Steven M. Tadler     Steven M. Tadler		Director		May 13, 2015
/s/ Christopher J. Doubrava     Christopher J. Doubrava		Director		May 13, 2015
/s/ Robert E. Alderson     Robert E. Alderson		Director		May 13, 2015
/s/ John E. Currie     John E. Currie		Director		May 13, 2015

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EXHIBIT INDEX

 

Exhibit Number		Description
4.1		Amended and Restated Certificate of Incorporation of Bojangles’, Inc. (incorporated herein by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on May 13, 2015).
4.2		Amended and Restated Bylaws of Bojangles’, Inc. (incorporated herein by reference to Exhibit 3.4 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 (File No. 333-203268) filed on April 27, 2015).
4.3		Bojangles’, Inc. Amended and Restated 2011 Equity Incentive Plan (incorporated herein by reference to Exhibit 10.15 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 (File No. 333-203268) filed on April 27, 2015).
5.1*		Opinion of Pepper Hamilton LLP (counsel to the Registrant) as to the legality of the securities being registered.
10.1		Bojangles’, Inc. Amended and Restated 2011 Equity Incentive Plan (incorporated herein by reference to Exhibit 10.15 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 (File No. 333-203268) filed on April 27, 2015).
23.1*		Consent of KPMG LLP.
23.2*		Consent of Pepper Hamilton LLP (included in Exhibit 5.1)
24.1*		Power of Attorney (contained on signature page hereto)

 

*	Filed herewith.

Exhibit 5.1

 

3000 Two Logan Square

Eighteenth and Arch Streets

Philadelphia, PA 19103-2799

215.981.4000

Fax [phone]

May 13, 2015

Bojangles’, Inc.

9432 Southern Pine Boulevard

Charlotte, North Carolina 28273

 

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 Company’s common stock, par value $0.01 per share (the “Shares”), issuable by the Company pursuant to awards granted or available for grant under the Company’s 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.

 

Philadelphia

Boston

Washington, D.C.

Detroit

New York

Pittsburgh

Berwyn

Harrisburg

Orange County

Princeton

Wilmington

www.pepperlaw.com

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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