As filed
with the Securities and Exchange Commission on June 23, 2008.
File No.
333-__________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
________________________________
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
DENNY’S
CORPORATION
(Exact
name of registrant as specified in its charter)
| Delaware | 13-3487402 | |
|
(State
or other jurisdiction of
incorporation
or organization)
|
(I.R.S.
Employer
Identification
No.)
|
203
East Main Street
Spartanburg,
South Carolina 29319-0001
(Address
and Zip Code of Principal Executive Offices)
Denny’s
Corporation 2008 Omnibus Incentive Plan
(Full
title of the plan)
Timothy
E. Flemming
Vice
President and General Counsel
Denny’s
Corporation
203
East Main Street
Spartanburg,
South Carolina 29319-0001
(864)
597-8000
(Name,
Address and Telephone number, including area code, of Agent For
Service)
with
copy to:
John B.
Shannon
Alston
& Bird LLP
One
Atlantic Center
1201 West
Peachtree Street, NE
Atlanta,
Georgia 30309-3424
(404)
881-7000
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerate filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
Large accelerated
filer ¨ Accelerated filer
þ
Non-accelerated
filer ¨
(Do not check if a smaller reporting
company) Smaller reporting
company ¨
CALCULATION
OF REGISTRATION FEE
|
Title
of
securities
to be registered
|
Amount
to
be
registered
|
Proposed
maximum
offering
price
per
share
|
Proposed
maximum
aggregate
offering
price
|
Amount
of
registration
fee
|
|
Common
Stock, $0.01
par value
|
4,500,000
shares (1)
|
$3.33
(2)
|
$14,985,000
(2)
|
$588.91
|
|
(1)
|
Amount
to be registered consists of an aggregate of 4,500,000 shares to be issued
pursuant to the grant or exercise of awards under the Denny’s Corporation
2008 Omnibus Incentive Plan (the “Plan”), including additional shares that
may become issuable in accordance with the adjustment and anti-dilution
provisions of the Plan.
|
|
(2)
|
Estimated
solely for the purpose of determining the registration fee pursuant to
Rule 457(h), based on the average of the high and low prices of the
Denny’s Corporation common stock reported on The NASDAQ Stock Market on
June 20, 2008.
|
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 Plan as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the “Securities Act”).
(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 Timothy E. Flemming, Vice President and General Counsel of the
Company, at the address and telephone number on the cover of this Registration
Statement.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
|
Item
3.
|
Incorporation
of Documents by Reference.
|
The
following documents filed with the Securities and Exchange Commission (the
“Commission”) pursuant to the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) are hereby incorporated by reference into this Registration
Statement:
(1) The
Company’s Annual Report on Form 10-K for the fiscal year ended December 26,
2007;
(2) All
other reports filed by the Company pursuant to Section 13(a) or 15(d) of the
Exchange Act since December 26, 2007;
(3) The
description of Common Stock contained in the Company’s Registration Statement
filed on Form 8-A under Section 12 of the Exchange Act, including all amendments
or reports filed for the purpose of updating such description; and
(4) 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 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 DGCL. Consequently, the registrant maintains
officers’ and directors’ liability insurance for the benefit of its officers and
directors. The Employment Agreement dated May 11, 2005 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 and California law and, in connection therewith, calls for
the advancement of attorneys' fees and expenses (subject to repayment in certain
circumstances).
|
Item
7.
|
Exemption
from Registration Claimed.
|
Not
applicable.
|
Item
8.
|
Exhibits.
|
See the
Exhibit Index, which is incorporated herein by reference.
|
Item
9.
|
Undertakings.
|
(a) The
undersigned Company 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;
|
|
(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.
|
|
(iii)
|
To
include any material information with respect to the plan of distribution
not previously disclosed in the Registration Statement or any material
change to such information in the Registration
Statement;
|
Provided, however, that
paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the
Registration Statement is on Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the Company pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
2. That, for
the purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
3. To remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the
offering.
(b) The
undersigned Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company’s annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company 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 of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company 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 Company 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 of 1933 and will be
governed by the final adjudication of such issue.
(Signatures
on following page)
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Company certifies that it
has reasonable grounds to believe that it meets all the requirements for filing
on Form S-8 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the city of
Spartanburg, state of South Carolina, on this 23rd day of June,
2008.
| DENNY'S CORPORATION | |||
| By: | /s/ F. Mark Wolfinger | ||
| F. Mark Wolfinger | |||
| Executive Vice President, Growth Initiatives, | |||
| Chief Administrative Officer and | |||
| Chief Financial Officer | |||
POWER
OF ATTORNEY
KNOW ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Timothy E. Flemming as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments to this Registration Statement, and to file the same, with
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 or necessary to be done regarding the aforesaid, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
|
Signature
|
Title
|
Date
|
||
| /s/ Nelson J. Marchioli |
President,
Chief Executive Officer and Director
|
June 23, 2008 | ||
| Nelson J. Marchioli |
(Principal
Executive Officer)
|
|||
|
/s/ F.
Mark Wolfinger
|
Executive
Vice President, Growth Initiatives,
Chief
Administrative Officer and
Chief
Financial Officer
|
June 23,
2008
|
||
| F. Mark Wolfinger |
(Principal
Financial Officer)
|
|||
|
/s/
Jay C. Gilmore
|
Vice
President, Chief Accounting Officer and Corporate
Controller
|
June 23,
2008
|
||
| Jay C. Gilmore |
(Principal
Accounting Officer)
|
|||
|
/s/
Debra Smithart-Oglesby
|
Director
and Chair
|
June 23,
2008
|
||
|
Debra
Smithart-Oglesby
|
||||
|
/s/
Vera K. Farris
|
Director
|
June 23,
2008
|
||
|
Vera
K. Farris
|
||||
|
/s/
Brenda J. Lauderback
|
Director
|
June 23,
2008
|
||
|
Brenda
J. Lauderback
|
||||
| /s/ Robert E. Marks |
Director
|
June23,
2008
|
||
|
Robert
E. Marks
|
||||
| /s/ Michael Montelongo |
Director
|
June 23,
2008
|
||
|
Michael
Montelongo
|
||||
| /s/ Louis P. Neeb |
Director
|
June 23,
2008
|
||
|
Louis
P. Neeb
|
||||
| /s/ Donald C. Robinson |
Director
|
June 23,
2008
|
||
|
Donald
C. Robinson
|
||||
| /s/ Donald R. Shepherd |
Director
|
June 23,
2008
|
||
|
Donald
R. Shepherd
|
EXHIBIT INDEX
TO
REGISTRATION
STATEMENT ON FORM S-8
| Exhibit Number |
Description
|
|
|
4.1
|
Restated
Certificate of Incorporation of the Company dated March 3, 2003
(incorporated by reference to Exhibit 3.1 to Form 10-K for the year ended
December 29, 2004).
|
|
|
4.2
|
Certificate
of Amendment to Restated Certificate of Incorporation to Increase
Authorized Capitalization dated August 25, 2004 (incorporated by reference
to Exhibit 3.1 to Form 8-K filed by the Company on August 27,
2004).
|
|
|
4.3
|
By-Laws
of the Company, effective as of September 6, 2007 (incorporated by
reference to Exhibit 3.1 to Form 8-K filed by the Company on September 12,
2007).
|
|
|
|
||
|
5.1
|
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 5.1).
|
|
|
23.2
|
Consent
of KPMG LLP.
|
|
|
24.1
|
Power
of Attorney (included on signature
page).
|