As filed with the Securities and Exchange Commission on February 14, 2003.
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Denny's Corporation
(Exact Name of Issuer as Specified in its Charter)
Delaware 13-3487402
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
203 East Main Street
Spartanburg, South Carolina 29319
(864) 597-8000
(Address, including zip code, and telephone
number of Principal Executive Offices)
Denny's, Inc. Omnibus Incentive Compensation Plan for Executives
(Full Title of the Plan)
RHONDA J. PARISH, ESQ.
Executive Vice President, General Counsel and Secretary
Denny's Corporation
203 East Main Street
Spartanburg, South Carolina 29319
(864) 597-8000
(Name, address, including zip code, and
telephone number, including area code, of
agent for service)
-----------------------
CALCULATION OF REGISTRATION FEE
--------------------------------------------- --------------- ---------------------- ----------------------- ----------------
Proposed Proposed
Title of Securities Amount to Maximum Maximum Amount of
to be Registered be Registered Offering Price Aggregate Registration Fee
Per Unit Offering Price
--------------------------------------------- --------------- ---------------------- ----------------------- ----------------
--------------------------------------------- --------------- ---------------------- ----------------------- ----------------
Common Stock, par value $.01 3,200,000(1) $ 0.615 (2) $ 1,968,000 (2) $ 181.06
--------------------------------------------- --------------- ---------------------- ----------------------- ----------------
(1) Amount to be registered consists of an aggregate of 3,200,000 shares to be
issued pursuant to the grant or exercise of awards to employees under the
Denny's, Inc. Omnibus Incentive Compensation Plan for Executives,
including additional shares that may become issuable in accordance with
the adjustment and anti-dilution provisions of the Plan.
(2) Determined in accordance with Rule 457(h), the registration fee calculation
is based on the average of the high and low prices of the Company's Common
Stock reported on the OTC Bulletin Board on February 11, 2003.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
(a) The documents constituting Part I of this Registration
Statement will be sent or given to participants in the Denny's, Inc. Omnibus
Incentive Compensation Plan for Executives (the "Plan") as specified by Rule
428(b)(1) under the Securities Act of 1933, as amended.
(b) Upon written or oral request, Denny's Corporation (the
"Company") will provide, without charge, the documents incorporated by reference
in Item 3 of Part II of this Registration Statement. The documents are
incorporated by reference in the Section 10(a) prospectus. The Company will also
provide, without charge, upon written or oral request, other documents required
to be delivered to employees pursuant to Rule 428(b). Requests for the above
mentioned information should be directed to Rhonda J. Parish, Executive Vice
President, General Counsel and Secretary, at (864) 597-8000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act") are incorporated herein by reference
and are deemed to be a part hereof from the date of the filing of such
documents:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 26, 2001, as amended;
(2) The Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 27, 2002, June 26, 2002 and September 25, 2002;
(3) The Company's Current Reports on Form 8-K filed with the Commission
on February 20, 2002, July 25, 2002, August 12, 2002, November 22, 2002 and
December 19, 2002;
(4) The section entitled "Description of Registrant's Securities To Be
Registered" in the Company's Registration Statement on Form 8-A filed with the
Commission pursuant to the Exchange Act, including all amendments or reports
filed for the purpose of updating such description;
(6) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since December 26, 2001;
(7) All other documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this Registration Statement that indicates that all
securities offered have been sold or that deregisters all securities that remain
unsold.
Any statement contained in a document incorporated or deemed
incorporated herein by reference shall be deemed to be modified or superseded
for the purpose of this Registration
1
Statement to the extent that a statement contained herein or in any
subsequently filed document which also is, or is deemed to be, incorporated
herein by reference modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, 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
Denny's Corporation is a Delaware corporation. Reference is made to
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL"), which
enables a corporation in its original certificate of incorporation or an
amendment thereto to eliminate or limit the personal liability of a director to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except (i) for any breach of the director's duty of loyalty
to the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) pursuant to Section 174 of the DGCL (providing for liability of directors
for unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit.
Reference is also made to Section 145 of the DGCL, which provides that
a corporation may indemnify any persons, including officers and directors, who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
such corporation), by reason of the fact that such person is or was an officer,
director, employee or agent of such corporation or is or was serving at the
request of such corporation as an officer, director, employee or agent of
another corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided such officer, director, employee or agent acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the corporation's best interests and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct was unlawful. A
Delaware corporation may indemnify officers, directors, employees and agents in
an action by or in the right of the corporation under the same conditions,
except that no indemnification is permitted without judicial approval if the
officer, director, employee or agent is adjudged to be liable to the
corporation. Where an officer, director, employee or agent is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses that such officer, director,
employee or agent actually and reasonably incurs.
The Company's Restated Certificate of Incorporation and By-Laws
provide for exculpation and indemnification of its officers and directors to
the full extent permitted under Delaware law. Specifically, Articles Sixth and
Seventh of the Restated Certificate of Incorporation provide for indemnification
of officers and directors to the full extent permitted by Section 145 of the
DGCL and the elimination of liability of directors to the full extent permitted
by Section 102 of the DGCL, and Article 5, Section 14 of the By-Laws provides
for indemnification of officers and directors to the full extent permitted by
Section 145 of the
2
DGCL. Consequently, the registrant maintains officers' and directors' liability
insurance for the benefit of its officers and directors. The Employment
Agreement dated January 2, 2001 between Denny's Corporation and Nelson J.
Marchioli also provides for the indemnification of Mr. Marchioli by Denny's
Corporation to the full extent permitted by Delaware law and, in connection
therewith, calls for the advancement of attorneys' fees and expenses (subject
to repayment in certain circumstances). The Registration Rights Agreement,
dated as of January 7, 1998, among the Company and each of the holders of
registrable securities named therein, provides for indemnification by the
Company of the holder of registrable securities that is a party thereto for
control person liability, if any, in respect of certain claims under the
Securities Act of 1933.
Item 7. Exemption from Registration Claimed. Not Applicable.
Item 8. Exhibits
Exhibit Number Description
-------------- -----------
4.1 Restated Certificate of Incorporation of
the Company (incorporated by reference to
Exhibit 3.1 to Form 8-A filed by the
Company on January 7, 1998 relating to
the Company's common stock)
4.2 By-Laws of the Company, as amended
through January 24, 2001 (incorporated
by reference to Exhibit 3.1 to the
Company's Quarterly Report on Form 10-Q
for the quarter ended March 28, 2001)
5 Opinion of J. Scott Melton, Esq.,
regarding the legality of the
securities being registered
23.1 Consent of J. Scott Melton, Esq.
(included in Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (included on signature
page)
99 Denny's, Inc. Omnibus Incentive
Compensation Plan for Executives
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
3
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this Registration Statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in
this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do
not apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this 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 being offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, 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 this 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 of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 6 of this
Part II, or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by 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 Act and
will be governed by the final adjudication of such issue.
(Signatures on following page)
4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Denny's Corporation, 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 Spartanburg, State of South Carolina, on
February 14, 2003.
DENNY'S CORPORATION
By: /s/ Rhonda J. Parish
---------------------------------
Rhonda J. Parish
Executive Vice President, General
Counsel and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Rhonda J. Parish as his or her true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent 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 he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or their or his or her
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
---------- ----- ----
/s/ Nelson J. Marchioli President, Chief Executive Officer and February 14, 2003
------------------------------------ Director (Principal Executive Officer)
Nelson J. Marchioli
/s/ Andrew F. Green Senior Vice President and Chief February 14, 2003
------------------------------------ Financial Officer (Principal Financial
Andrew F. Green and Accounting Officer)
/s/ Charles F. Moran Chairman of the Board of Directors February 14, 2003
------------------------------------
Charles F. Moran
/s/ Vera K. Farris Director February 14, 2003
------------------------------------
Vera K. Farris
5
/s/ Darrel Jackson Director February 14, 2003
------------------------------------
Darrel Jackson
6
/s/ Robert E. Marks Director February 14, 2003
------------------------------------
Robert E. Marks
Director February 14, 2003
------------------------------------
Lloyd I. Miller, III
/s/ Elizabeth A. Sanders Director February 14, 2003
------------------------------------
Elizabeth A. Sanders
/s/ Donald R. Shepherd Director February 14, 2003
------------------------------------
Donald R. Shepherd
/s/ Raul R. Tapia Director February 14, 2003
------------------------------------
Raul R. Tapia
7
EXHIBIT INDEX
TO
FORM S-8
Exhibit Number Description
-------------- -----------
4.1 Restated Certificate of Incorporation of
the Company (incorporated by reference to
Exhibit 3.1 to Form 8-A filed by the
Company on January 7, 1998 relating to the
Company's common stock)
4.2 By-Laws of the Company, as amended
through January 24, 2001 (incorporated
by reference to Exhibit 3.1 to the
Company's Quarterly Report on Form 10-Q
for the quarter ended March 28, 2001)
5 Opinion of J. Scott Melton, Esq.,
regarding the legality of the
securities being registered
23.1 Consent of J. Scott Melton, Esq.
(included in Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (included on signature
page)
99 Denny's, Inc. Omnibus Incentive
Compensation Plan for Executives
EXHIBIT 5
Opinion of J. Scott Melton, Esq.
February 14, 2003
Denny's Corporation
203 East Main Street
Spartanburg, South Carolina 29319
Ladies and Gentlemen:
As Assistant General Counsel of Denny's Corporation (the "Company"), I
am familiar with the Registration Statement to be filed by the Company on or
about February 14, 2003, with the Securities and Exchange Commission with
respect to 3,200,000 shares of the Company's $.01 par value common stock
issuable under the Denny's, Inc. Omnibus Incentive Compensation Plan for
Executives.
It is my opinion that the Company's $0.01 par value common stock to be
registered, when sold or issued hereafter upon the exercise of stock options in
accordance with the provisions of said plan and upon payment of the
consideration for such shares as contemplated by said plan, will be validly
issued, fully paid and nonassessable.
I hereby consent to the use of this opinion as Exhibit 5 to the above
mentioned Registration Statement.
Sincerely,
/s/ J. Scott Melton
--------------------------
J. Scott Melton
Assistant General Counsel
EXHIBIT 23.2
Consent of Deloitte & Touche LLP
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration
Statement of Denny's Corporation on Form S-8 of our report dated February 19,
2002 (March 8, 2002 as to Note 9 and March 9, 2002 as to Note 19), appearing in
and incorporated by reference in the Annual Report on Form 10-K of Denny's
Corporation for the year ended December 26, 2001.
DELOITTE & TOUCHE LLP
/s/ Deloitte & Touche LLP
Greenville, South Carolina
February 14, 2003
EXHIBIT 99
Denny's, Inc. Omnibus Incentive Compensation Plan for Executives