As filed with the Securities and Exchange Commission on November 16, 2016.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Bojangles’, Inc.
(Exact name of Registrant as specified in its charter)
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Delaware
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45-2988924
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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9432 Southern Pine Boulevard
Charlotte, NC 28273
(704)
527-2675
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
M. John Jordan
Senior Vice
President of Finance, Chief Financial Officer and Treasurer
Bojangles’, Inc.
9432 Southern Pine Boulevard
Charlotte, NC 28273
(704)
527-2675
(Name, address, including zip code, and telephone number, including area code, of agent for service)
with copies to:
Barry M. Abelson, Esq.
Scott R. Jones, Esq.
Pepper Hamilton LLP
3000
Logan Square
Philadelphia, PA 19103
(215) 981-4000
Approximate date of
commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
If the only
securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following
box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D.
filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
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 accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one)
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒ (Do not check if a smaller reporting company)
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Smaller reporting company
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☐
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CALCULATION OF REGISTRATION FEE
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Title of each class of
securities to be registered
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Amount
to be
Registered
(1)
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Proposed
Maximum
Offering Price
per Share
(2)
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Proposed
Maximum
Aggregate
Offering Price
(2)
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Amount of
Registration Fee
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Common Stock, par value $0.01
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25,779,981
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$16.83
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$433,877,080.23
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$50,286.35
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(1)
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Pursuant to the terms of the Stockholders’ Agreement between the registrant and certain of its stockholders, the registrant is registering for resale a total of 25,779,981 shares of common stock. Pursuant to
Rule 416 under the Securities Act of 1933, as amended, the shares being registered hereunder include such indeterminate number of shares of common stock as may be issuable with respect to the shares being registered hereunder as a result of stock
splits, stock dividends or similar transactions.
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(2)
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Estimated solely for the purpose of calculating the registration fee under Rule 457(c) of the Securities Act of 1933, as amended, based on the average of the high and low prices of a share of common stock on the NASDAQ
Global Select Market on November 9, 2016, which was $16.83.
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The Registrant
hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this preliminary prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
PROSPECTUS (Subject to Completion)
Dated November 16, 2016
25,779,981 Shares
Common Stock
The selling
stockholders identified in this prospectus may offer and sell, from time to time, in one or more offerings, up to 25,779,981 shares of our common stock, at prices and on terms that will be determined at the time of the offering.
This prospectus relates solely to sales of our common stock by the selling stockholders identified in this prospectus. We are not selling any
common stock under this prospectus and will not receive any of the proceeds from the sale of the common stock by the selling stockholders.
This prospectus describes the general manner in which the shares of our common stock may be offered and sold by the selling stockholders. Each
time securities are offered pursuant to this prospectus, we may provide a prospectus supplement and attach it to this prospectus. Any prospectus supplement will contain specific information about the terms of the offering and the offered securities
and may also add, update or change the information in this prospectus. You should read this prospectus and any applicable prospectus supplement carefully before you invest in our common stock.
The shares of our common stock may be sold at fixed prices, prevailing market prices at the times of sale, prices related to the prevailing
market prices, varying prices determined at the times of sale or negotiated prices. The shares of our common stock offered by this prospectus and any accompanying prospectus supplement may be offered by the selling stockholders directly to investors
or to or through underwriters, dealers or other agents. The prospectus supplement for each offering will describe in detail the plan of distribution for that offering and will set forth the names of any underwriters, dealers or agents involved in
the offering and any applicable fees, commissions or discount arrangements.
Our common stock is listed on the NASDAQ Global Select Market
under the symbol “BOJA.” We are an “emerging growth company” under applicable Securities and Exchange Commission rules and are subject to reduced public company reporting requirements. On November 15, 2016, the last reported sale
price of our common stock was $18.25 per share.
Investing in
our common stock involves risks. See “
Risk Factors
” on page 2 of this prospectus and any risk factors described in any applicable prospectus supplement and in the documents we incorporate by reference.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities
or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of
this prospectus is , 2016
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a shelf registration statement that we have filed with the Securities and Exchange Commission, or the SEC, under
the Securities Act of 1933, as amended, or the Securities Act. By using a shelf registration statement, the selling stockholders identified in this prospectus may sell shares of our common stock in one or more offerings.
This prospectus provides you with a general description of the common stock the selling stockholders may offer. Each time the selling
stockholders sell shares of our common stock under this shelf registration process, we may provide a prospectus supplement that contains specific information about the terms of that offering. Any prospectus supplement may add, update or change
information contained in this prospectus. If there is any inconsistency between the information in this prospectus and any applicable prospectus supplement, you should rely on the information in the prospectus supplement. You should read both this
prospectus and any prospectus supplement together with the additional information described below in the section entitled “Where You Can Find More Information.”
We may also prepare free writing prospectuses to describe the terms of particular sales of our common stock by the selling stockholders, which
terms may vary from those described in any prospectus supplement. You therefore should carefully review any free writing prospectus in connection with your review of this prospectus and the applicable prospectus supplement.
You should rely only on the information contained in this prospectus or any prospectus supplement, including any information that we
incorporate by reference, or any free writing prospectus that we distribute. We have not authorized anyone to provide you with different information, and we do not take any responsibility for, or provide any assurance as to the reliability of, any
other information that others may give you. You should not assume that the information contained or incorporated by reference in this prospectus or a prospectus supplement or contained in any free writing prospectus is accurate as of any date other
than the date of the document. We are not making an offer of securities in any jurisdiction where the offer is not permitted.
In this
prospectus, unless the context otherwise requires, “we,” “us,” “our,” the “company” or “Bojangles’,” refers collectively to Bojangles’, Inc., a Delaware corporation, incorporated in 2011,
the issuer of the common stock in this offering, and its subsidiaries.
We use a 52- or 53-week fiscal year ending on the last Sunday of
each calendar year. Fiscal 2015 was a 52-week fiscal year that ended on December 27, 2015. Fiscal 2016 is a 52-week fiscal year ending on December 25, 2016.
TRADEMARKS AND COPYRIGHTS
Bojangles’
®
,” “It’s Bo Time
®
,” “Bo-Smart
®
,” configuration of “Big Bo Box
®
,”
“Chicken Supremes™,” “Bojangles’ Cajun Pintos
®
,” “Bojangles’ Dirty Rice
®
,” “Legendary
Iced Tea
®
,” “Cajun Filet Biscuit
®
,” “Bo-Tato
Rounds
®
,” “Bojangles’ Seasoned Fries™,” “Roasted Chicken Bites™” and other trademarks or service marks of Bojangles’ appearing in this prospectus
are the property of Bojangles’ or its subsidiaries. Solely for convenience, some of the copyrights, trade names and trademarks referred to in this prospectus are listed without their
©
,
®
,
sm
and ™ symbols, but we will assert, to the fullest extent under applicable law, our rights to our copyrights, trade names, trademarks
and service marks. This prospectus contains additional trade names, trademarks, and service marks of other companies. We do not intend our use or display of other companies’ trade names, trademarks or service marks to imply a relationship with,
or endorsement or sponsorship of us by, these other companies.
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WHERE YOU CAN FIND MORE INFORMATION
The registration statement that we have filed with the SEC registers the securities offered by this prospectus under the Securities Act. The
registration statement, including the exhibits to it, contains additional relevant information about us. The rules and regulations of the SEC allow us to omit some information included in the registration statement from this prospectus.
In addition, we file annual, quarterly and current reports, proxy and information statements and other information with the SEC. Our SEC
filings, including the registration statement, are available to the public from the SEC’s website at http://www.sec.gov. To receive copies of public records not posted to the SEC’s website at prescribed rates, you may complete an online
form at www.sec.gov, send a fax to (202) 772-9337 or submit a written request to the SEC, Office of FOIA/PA Operations, 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information.
We also make available free of charge on our website, www.bojangles.com, under the “Investors” section, all materials that we file
electronically with the SEC, including our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, Section 16 reports and amendments to those reports, as soon as reasonably practicable after such
materials are electronically filed with, or furnished to, the SEC. Information contained on our website or any other website is not incorporated by reference into this prospectus and does not constitute a part of this prospectus.
The SEC allows us to “incorporate by reference” the information we have filed with the SEC. This means that we can disclose
important information to you without actually including the specific information in this prospectus by referring you to other documents filed separately with the SEC. These other documents contain important information about us, our financial
condition and our results of operations. The information incorporated by reference is considered part of this prospectus from the date we file that document. Information that we file later with the SEC and that is incorporated by reference in this
prospectus will automatically update and may supersede information contained or incorporated by reference in this prospectus or any prospectus supplement.
We incorporate by reference in this prospectus the documents and portions of documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act (other than, in each case, information deemed to have been furnished and not filed in accordance with SEC rules):
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our Annual Report on Form 10-K for the fiscal year ended December 27, 2015, filed on March 11, 2016 (including information specifically incorporated by reference into our Form 10-K from our definitive proxy
statement relating to our 2016 annual meeting of stockholders, filed on April 20, 2016);
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our Quarterly Report on Form 10-Q for the quarterly period ended March 27, 2016, filed on May 5, 2016; and
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our Quarterly Report on Form 10-Q for the quarterly period ended June 26, 2016, filed on August 8, 2016;
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our Quarterly Report on Form 10-Q for the quarterly period ended September 25, 2016, filed on November 4, 2016;
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our Current Reports on Form 8-K filed on March 8, 2016, June 10, 2016, September 23, 2016 and October 25, 2016; and
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the description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on May 4, 2015, as amended from time to time.
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You may obtain any of the documents incorporated by reference in this prospectus from the SEC
through the SEC’s website at the address provided above. You may also request and we will provide, free of charge, a copy of any document incorporated by reference in this prospectus (excluding exhibits to such document unless an exhibit is
specifically incorporated by reference in the document) by writing or calling us at the following address and telephone number: Bojangles’, Inc., Corporate Secretary, 9432 Southern Pine Boulevard, Charlotte, NC 28273, telephone
(704) 527-2675.
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PROSPECTUS SUMMARY
The following summary does not contain all of the information that you should consider before making your investment decision. You should
read carefully the entire prospectus and the financial statements, notes to financial statements and other information incorporated by reference in this prospectus before making any investment decision.
Overview
Bojangles’
is a highly differentiated and growing restaurant operator and franchisor dedicated to serving customers high-quality, craveable food made from our Southern recipes. Since 1977, we believe Bojangles’ has become an iconic brand with a cult-like
following due to our famous, made-from-scratch biscuits baked every 20 minutes, our fresh, never-frozen bone-in fried chicken, our unique fixin’s and our Legendary Iced Tea. We believe we offer fast-casual quality food combined with
quick-service speed, convenience and value. While we serve our full menu of craveable food across all dayparts, we are especially known by customers for our breakfast offerings and generated, on average, over $650,000 in fiscal 2015 per
company-operated restaurant before 11:00 a.m. In fiscal 2015, our 281 company-operated and 381 franchised restaurants, primarily located in the Southeastern United States, generated approximately $1.2 billion in system-wide sales, representing
$462.1 million in company restaurant revenues and $690.9 million in franchise sales which contributed $26.1 million in franchise royalty and other franchise revenues. Over this same period, our restaurants generated a system-wide average unit volume
of over $1.8 million, which we believe is among the highest in the quick-service restaurant and fast-casual segments. Our mission is to win the hearts of our customers by delivering quality and service all day, every day, and we believe our
passionate team members and culture are fundamental to our success. The excitement for our brand and enthusiasm of our customers can be best summarized by our famous tagline…“It’s Bo Time!”
Since our founding in Charlotte, North Carolina in 1977, our core menu centered on “chicken ’n biscuits” has remained largely
unchanged. We believe our variety of fresh, flavorful and Southern-inspired items appeals to a broad customer demographic across our five dayparts: breakfast, lunch, snack, dinner and after dinner. Bojangles’ is known for its breakfast menu,
which is served all day, every day, and includes our top selling Cajun Filet Biscuit. We also offer hand-breaded, bone-in chicken marinated for at least 12 hours, Chicken Supremes, Homestyle Chicken Tenders, and sandwiches, as well as unique
fixin’s including our Seasoned Fries, Bo-Tato Rounds, Bojangles’ Cajun Pintos and Dirty Rice. Our Bo-Smart menu features items such as salads, grilled chicken sandwiches, Roasted Chicken Bites and fat-free green beans. In addition to our
individual menu items, we offer combos and family meals that appeal to large parties, as well as our Big Bo Box, which is perfect for tailgating events. Our food is complemented by our Legendary Iced Tea that is steeped the old-fashioned way,
providing a rich flavor that our customers crave. Our high-quality, handcrafted food also represents a great value with an average check of only $6.97 for company-operated restaurants in fiscal 2015. We believe our distinct menu with fresh,
made-from-scratch offerings combined with a compelling average check creates an attractive value proposition for our customers.
Corporate Information
Our
principal executive offices are located at 9432 Southern Pine Boulevard, Charlotte, NC 28273 and our telephone number is (704) 527-2675. Our internet website address is
www.bojangles.com
. Information on, or accessible through, our
website is not part of or incorporated into this prospectus or the registration statement of which it forms a part.
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RISK FACTORS
An investment in our common stock involves a high degree of risk. Before investing in our common stock, you should carefully consider the
specific risks described under the heading “Risk Factors” in the applicable prospectus supplement and under the caption “Risk Factors” in any of our filings with the SEC pursuant to Sections 13(a), 14 or 15(d) of the Exchange
Act, including, without limitation, our Annual Report on Form 10-K for the year ended December 27, 2015, filed with the SEC on March 11, 2016, our Quarterly Report on Form
10-Q
for the quarterly period
ended June 26, 2016, filed with the SEC on August 8, 2016, and our Quarterly Report on Form
10-Q
for the quarterly period ended September 25, 2016, filed with the SEC on November 4, 2016, each of which are on
file with the SEC and incorporated by reference into this prospectus. The occurrence of any of these risks could materially and adversely affect our business, prospects, financial condition, results of operations and cash flow, in which case the
trading price of our common stock could decline and you could lose all or part of your investment.
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in this prospectus contain forward-looking statements. All statements other than
statements of historical fact included in this prospectus and the documents incorporated by reference in this prospectus are forward-looking statements. Forward-looking statements discuss our current expectations and projections relating to our
financial condition, results of operations, plans, objectives, future performance and business. These statements may be preceded by, followed by or include the words “aim,” “anticipate,” “believe,” “estimate,”
“expect,” “forecast,” “intend,” “outlook,” “plan,” “potential,” “project,” “projection,” “seek,” “may,” “could,” “would,”
“will,” “should,” “can,” “can have,” “likely,” the negatives thereof and other words and terms of similar meaning.
Forward-looking statements are inherently subject to risks, uncertainties and assumptions; they are not guarantees of performance. You should
not place undue reliance on these statements. We have based these forward-looking statements on our current expectations and projections about future events. Although we believe that our assumptions made in connection with the forward-looking
statements are reasonable, we cannot assure you that the assumptions and expectations will prove to be correct.
All forward-looking
statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by our risk factors and other cautionary factors included or incorporated by reference into this prospectus which could cause our actual results
to differ materially from those projected in any forward-looking statements we make. In addition, all forward-looking statements speak only as of the date of this prospectus. We undertake no obligation to update or revise publicly any
forward-looking statements included or incorporated by reference in this prospectus, whether as a result of new information, future events or otherwise other than as required under the federal securities laws.
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USE OF PROCEEDS
All of the shares of our common stock offered hereby are being sold by the selling stockholders identified in this prospectus. See
“Selling Stockholders.” Accordingly, we will not receive any proceeds from the sale of shares by the selling stockholders. The selling stockholders will pay any customary underwriting discounts and commissions and similar selling expenses,
if any, incurred by such selling stockholders in disposing of these shares. We will bear all other costs, fees and expenses incurred in effecting the registration of the shares of common stock covered by this prospectus.
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DESCRIPTION OF CAPITAL STOCK
The following description summarizes the terms of our capital stock, our amended and restated certificate of incorporation and our amended
and restated bylaws. Because it is only a summary, it does not contain all of the information that may be important to you. For a complete description, you should refer to our amended and restated certificate of incorporation and amended and
restated bylaws, which are incorporated by reference in this prospectus, as well as the relevant portions of the Delaware General Corporation Law, or the DGCL.
General
Our authorized capital stock
consists of 150,000,000 shares of common stock, par value $0.01 per share, and 25,000,000 shares of preferred stock, par value $0.01 per share.
As of September 25, 2016, there were outstanding:
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36,373,721 shares of our common stock;
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no shares of our preferred stock;
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stock options to purchase an aggregate of 3,940,986 shares of our common stock with a weighted average exercise price of $4.48 per share; and
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84,620 shares of common stock issuable upon the vesting of restricted stock units.
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Common Stock
Voting rights
. Holders of our common stock are entitled to one vote for each share for the election of directors and on all other
matters submitted to a vote of stockholders (provided, however, that holders of common stock shall not be entitled to vote on any amendment to the Company’s certificate of incorporation that relates solely to the terms of one or more
outstanding series of preferred stock if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such series, to vote thereon). Holders of our common stock do not have
cumulative voting rights in the election of directors. Whenever corporate action is to be taken by vote of the stockholders, other than the election of directors, it becomes authorized upon receiving the affirmative vote of a majority of the votes
cast by all stockholders present in person or by proxy and entitled to vote on the matter. Any election by stockholders of directors is determined by a plurality of shares present in person or by proxy entitled to vote on the election.
Dividend rights
. Subject to the preferences applicable to any outstanding preferred stock, holders of our common stock are entitled to
receive ratably any dividend declared by the board of directors out of legally available funds.
Rights upon liquidation
. In the
event of a liquidation, dissolution or winding up of the Company, holders of common stock are entitled to share ratably in the assets remaining after payment of liabilities and the liquidation preferences of any outstanding preferred stock.
Other rights and preferences
. Holders of our common stock have no preemptive, subscription, conversion, redemption or sinking fund
rights. The rights, preferences and privileges of holders of our common stock will be subject to those of the holders of any shares of our preferred stock we may issue from time to time in the future.
Preferred Stock
Our board of directors
has the authority, without further action by the stockholders, to issue up to 25,000,000 shares of preferred stock in one or more series and to fix the designations, powers, preferences,
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privileges and relative participating, optional, or special rights as well as the qualifications, limitations, or restrictions of the preferred stock, including dividend rights, conversion
rights, voting rights, terms of redemption and liquidation preferences, any or all of which may be greater than the rights of the common stock. Accordingly, our board of directors, without stockholder approval, may issue preferred stock with voting,
conversion, or other rights that could adversely affect the voting power and other rights of the holders of common stock. Preferred stock could be issued quickly with terms calculated to delay or prevent a change of control or make removal of
management more difficult. Additionally, the issuance of preferred stock may have the effect of decreasing the market price of our common stock and may adversely affect the voting and other rights of the holders of our common stock, and could have
the effect of delaying, deterring or preventing a change of control of the Company or other corporate action. See “Description of Capital Stock—Anti-Takeover Provisions of Delaware Law and Certain Charter and Bylaw Provisions.” At
present, we have no plans to issue any shares of preferred stock.
Equity Incentive Awards
As of September 25, 2016, we had outstanding options to purchase 3,940,986 shares of our common stock at a weighted-average price of $4.48 per
share and 84,620 shares of common stock issuable upon the vesting of restricted stock units. At September 25, 2016, we had 4,004,509 additional shares remaining and available for future grants under the Amended and Restated 2011 Equity Incentive
Plan.
Registration Rights
Stockholders who are parties to our stockholders’ agreement, including certain selling stockholders, certain members of our board of
directors and an affiliate of one of the members of our board of directors, have the right, subject to various conditions and limitations, to include their shares of our common stock in future registration statements relating to our securities and
to demand that we effect registration of all or any portion of the registrable securities held by them. The right to include shares in an underwritten registration is subject to the ability of the underwriters to limit the number of shares included
in such an offering. By exercising their registration rights and causing a large number of shares to be registered and sold in the public market, these holders could cause the price of the common stock to fall. In addition, any demand to include
such shares in our registration statements could have a material adverse effect on our ability to raise needed capital. The resale of the shares offered by certain of the selling stockholders in this offering is being registered pursuant to the
exercise of this right.
Anti-Takeover Provisions of Delaware Law and Certain Charter and Bylaw Provisions
Our amended and restated certificate of incorporation and amended and restated bylaws contain provisions that may delay, defer or discourage
another party from acquiring control of us. We expect that these provisions, which are summarized below, will discourage coercive takeover practices or inadequate takeover bids. These provisions are also designed to encourage persons seeking to
acquire control of us to first negotiate with our board of directors, which we believe may result in an improvement of the terms of any such acquisition in favor of our stockholders. However, they also give our board of directors the power to
discourage acquisitions that some stockholders may favor.
Undesignated Preferred Stock
The ability to authorize undesignated preferred stock makes it possible for our board of directors to issue preferred stock with super voting,
special approval, dividend or other rights or preferences on a discriminatory basis that could impede the success of any attempt to acquire us. However, we may not issue any shares of preferred stock to the extent such issuance would deprive holders
of common stock of their economic and voting rights under our amended and restated certificate of incorporation, including any issuance of preferred stock that has a separate class vote, other than (i) a separate right to designate or elect a
director or (ii) to the extent
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necessary to comply with any applicable national stock exchange listing standards related to the non-payment of dividends. These and other provisions may have the effect of deferring, delaying or
discouraging hostile takeovers, or changes in control or management of our company.
Classified Board of Directors
Our amended and restated certificate of incorporation provides for our board of directors to be divided into three classes of directors, as
nearly equal in number as possible, serving staggered terms. Approximately one-third of our board of directors will be elected each year. Under Section 141 of the DGCL, unless the amended and restated certificate of incorporation provides
otherwise, directors serving on a classified board can only be removed for cause. Our amended and restated certificate of incorporation provides that our directors may only be removed for cause and only by the affirmative vote of holders of 66
2
⁄
3
% or more of the outstanding shares of capital stock entitled to vote at an election of directors. The provision for our classified board of directors may be
amended or repealed only upon both (i) the affirmative vote of holders of not less than 66
2
⁄
3
% of the outstanding shares of capital stock entitled to vote on such amendment or repeal, voting together as a single class, and (ii) the affirmative vote of holders of not less than 66
2
⁄
3
% of the outstanding shares each class entitled to
vote on such amendment or repeal as a class.
Number of Directors; Vacancies
Our amended and restated certificate of incorporation provides that the number of directors on our board will be fixed exclusively pursuant to
resolution adopted by our board of directors. The exact number of members on our board of directors will be determined from time to time by resolution of a majority of our full board of directors. The size of our board of directors is currently
fixed at ten directors.
Pursuant to our amended and restated certificate of incorporation, each director will serve until his or her
successor is duly elected and qualified, unless he or she resigns, dies, becomes disqualified or is removed. Our amended and restated certificate of incorporation and amended and restated bylaws further provides that, generally, vacancies or newly
created directorships in our board may only be filled by a resolution approved by a majority of our board of directors and any director so chosen will hold office until the next election of the class for which such director was chosen, subject to
such director’s nomination and election at the next annual meeting of stockholders after such director’s appointment.
Stockholder
Meetings
Our amended and restated certificate of incorporation and amended and restated bylaws prohibit our stockholders from
calling a special meeting. Special meetings of the stockholders may be called by only (a) the chairman of our board of directors or (b) our secretary at the written request of a majority of the number of directors then in office.
Action by Stockholders Without a Meeting
Pursuant to Section 228 of the DGCL, any action required to be taken at any annual or special meeting of the stockholders may be taken
without a meeting, without prior notice and without a vote if a consent or consents in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares of our stock entitled to vote thereon were present and voted, unless the company’s certificate of incorporation provides otherwise.
Our amended and restated certificate of incorporation and amended and restated bylaws provide that any action required or permitted to be
taken by our stockholders may be effected only at a duly called annual or special meeting of our stockholders and may not be effected by any consent in writing by such stockholders.
-7-
No Cumulative Voting
The DGCL provides that stockholders are not entitled to the right to cumulate votes in the election of directors unless a corporation’s
certificate of incorporation provides otherwise. Our amended and restated certificate of incorporation does not provide for cumulative voting in the election of directors.
Stockholder Proposals and Nominations
Our amended and restated bylaws provide that stockholders seeking to bring business before an annual meeting of stockholders or to nominate
candidates for election as directors at an annual meeting of stockholders must provide timely notice of such proposed business in writing. To be timely, a stockholder’s notice generally must be delivered to or mailed and received at our
principal executive office not less than 90 days or more than 120 days prior to the first anniversary of the preceding year’s annual meeting.
Our amended and restated bylaws also provide certain requirements as to the form and content of a stockholder’s notice. These provisions
may preclude stockholders from bringing matters before an annual meeting of stockholders or from making nominations for directors at an annual meeting of stockholders. A stockholder’s notice must set forth, among other things, as to each
business matter or nomination the stockholder proposes to bring before the meeting:
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•
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the name, address and telephone number of the stockholder and the beneficial owner, if any, on whose behalf the proposal or nomination is made;
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•
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the class and number of shares that are owned of record and beneficially by the stockholder proposing the business or nominating the nominee and the time period such shares have been held; and
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•
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representation that the stockholder giving the notice (i) is a holder of record of shares of our voting stock entitled to vote at such annual meeting, (ii) intends to appear in person at the annual meeting, (iii)
intends to continue to hold their shares.
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If the stockholder is nominating a candidate for director, the stockholder’s
notice must also include a written questionnaire with respect to the background and qualification of such nominee and the background of any other person or entity on whose behalf the nomination is being made. The candidate must also consent to a
background check and may also be required to present certain information and make certain representations and agreements at our request.
In addition, a stockholder must also comply with all applicable requirements of the Exchange Act and the rules and regulations under the
Exchange Act with respect to matters relating to nomination of candidates for directors.
Supermajority provisions
The DGCL generally provides that the affirmative vote of a majority of the shares entitled to vote on any matter is required to amend a
corporation’s certificate of incorporation or bylaws, unless the corporation’s certificate of incorporation or bylaws require a greater percentage. Our amended and restated certificate of incorporation requires both (i) the affirmative
vote of holders of not less than 66
2
⁄
3
% of the
outstanding shares of capital stock entitled to vote on such amendment or repeal, voting together as a single class, and (ii) the affirmative vote of holders of not less than 66
2
⁄
3
% of the outstanding shares each class entitled to vote on such amendment or repeal as a class, will be
required to amend or repeal specified provisions of our amended and restated certificate of incorporation, including:
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•
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the classified board of directors (the election and term of our directors);
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•
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the provisions regarding the removal of directors and the filling of vacancies on our board of directors;
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•
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the provisions regarding director liability;
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-8-
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•
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the provisions regarding director and officer indemnification;
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•
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the provisions regarding stockholder action by written consent;
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•
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the provisions regarding calling special meetings of stockholders;
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•
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the provisions regarding the issuance of preferred stock; and
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•
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the amendment provision requiring that the above provisions be amended only with a 66
2
⁄
3
% supermajority vote.
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Our amended and restated certificate of incorporation
and amended and restated bylaws require either: (i) the affirmative vote of a majority of the directors then in office or (ii) that the affirmative vote of holders of at least 66
2
⁄
3
% of the outstanding shares of capital stock entitled to vote on such amendment or repeal, voting together as a single class, to amend or repeal the amended and restated bylaws (provided, however, that if the
board of directors recommends that the stockholders approve any amendment or repeal of the amended and restated bylaws, such amendment or repeal shall only require the affirmative vote of a majority of the outstanding shares of capital stock
entitled to vote on such amendment or repeal, voting together as a single class).
This requirement of a supermajority vote to approve
amendments to our amended and restated certificate of incorporation and amended and restated bylaws could enable a minority of our stockholders to exercise veto power over any such amendments.
Delaware Anti-Takeover Statute
Section 203 of the DGCL, subject to certain exceptions, prohibits a publicly-held Delaware corporation from engaging in any business
combination with any interested stockholder for a period of three years following the date that such person or entity became an interested stockholder, unless:
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•
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prior to such date, the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder;
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•
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upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the
transaction commenced, excluding specified shares; or
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•
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at or subsequent to such date of the transaction that resulted in a person or entity becoming an interested stockholder, the business combination is approved by the board of directors and authorized at an annual or
special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66
2
⁄
3
% of the outstanding voting stock that is not owned by
the interested stockholder.
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In general, Section 203 defines an “interested stockholder” as any person that is:
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•
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the owner of 15% or more of the outstanding voting stock of the corporation;
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•
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an affiliate or associate of the corporation and was the owner of 15% or more of the outstanding voting stock of the corporation at any time within three years immediately prior to the relevant date; or
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•
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an affiliate or associate of the above.
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A Delaware corporation may “opt out” of
these provisions with an express provision in its original certificate of incorporation or an express provision in its certificate of incorporation or bylaws resulting from a stockholders’ amendment approved by at least a majority of the
outstanding voting stock. We have not opted out of Section 203 of the DGCL.
Limitations on Liability and Indemnification of Directors and
Officers
Section 145 of 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,
-9-
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, and 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. Our amended and restated certificate of incorporation provides for the indemnification of our directors and officers to the fullest extent
permitted under the DGCL.
Expenses incurred by any officer or director in defending any such action, suit or proceeding in advance of its
final disposition shall be paid by us upon delivery to us of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be
indemnified by us.
Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, except for liability for any:
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transaction from which the director derives an improper personal benefit;
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•
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act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
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•
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unlawful payment of dividends or redemption of shares; or
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•
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breach of a director’s duty of loyalty to the corporation or its stockholders.
|
Our
amended and restated certificate of incorporation includes 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 or dissented at the time when the unlawful
actions were approved 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.
We have entered into separate indemnification agreements with our directors and certain
officers. Each indemnification agreement provides, among other things, for indemnification to the fullest extent permitted by law and our 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 provide for the advancement or payment of all expenses to the indemnitee and for reimbursement to us if it is found that such indemnitee is not
entitled to such indemnification under applicable law and our amended and restated certificate of incorporation and amended and restated bylaws.
Venue
Our amended and restated bylaws provide that, unless we consent in writing to the selection of an alternative forum, the Court of
Chancery of the State of Delaware will, to the fullest extent permitted by law, be
-10-
the sole and exclusive forum for any stockholder to bring (i) any derivative action or proceeding brought on behalf of our company, (ii) any action asserting a claim of breach of a
fiduciary duty owed by any director, officer or other employee of our company to our company or our stockholders, (iii) any action asserting a claim against our company or its directors, officers or employees arising pursuant to any provision
of the DGCL or our certificate of incorporation or bylaws or (iv) any action asserting a claim against our company or our directors, officers or employees governed by the internal affairs doctrine, except for, as to each of (i) through
(iv) above, any claim (A) as to which the Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of the Court of Chancery, (B) which is vested in the exclusive jurisdiction of a court or
forum other than the Court of Chancery or (C) for which the Court of Chancery does not have subject matter jurisdiction.
Transfer Agent
The registrar and transfer agent for our common stock is Computershare Trust Company, N.A. Its address is 250 Royall Street, Canton, MA 02021,
and its telephone number is 1-877-373-6374.
Listing
Our common stock is listed on the NASDAQ Global Select Market under the symbol “BOJA.”
-11-
SELLING STOCKHOLDERS
The following table sets forth the names of each of the selling stockholders, the number of shares of our common stock and the percentage of
shares of our common stock beneficially owned by each of the selling stockholders prior to this offering, the number of shares that may be offered under this prospectus by each of the selling stockholders, and the number of shares of our common
stock and the percentage of our common stock to be beneficially owned by each of the selling stockholders after completion of this offering, assuming that all shares offered hereunder are sold as contemplated herein. The number of shares in the
column “Maximum Number of Shares That May Be Offered” represents all of the shares that each of the selling stockholders may offer under this prospectus.
Unless otherwise noted below, the address for each selling stockholder listed on the table is: c/o Bojangles’, Inc., 9432 Southern Pine
Boulevard, Charlotte, NC 28273. We have determined beneficial ownership in accordance with the rules of the SEC. Except as indicated by the footnotes below, we believe, based on the information furnished to us, that the persons and entities named in
the tables below have sole voting and investment power with respect to all shares of common stock that they beneficially own, subject to applicable community property laws.
For purposes of the table below, the beneficial ownership amounts and percentages are based on a total of 36,478,140 shares of our common
stock outstanding as of November 14, 2016.
In computing the number of shares of common stock beneficially owned by a person and the
percentage ownership of that person, we deemed outstanding shares of common stock subject to options held by that person that are currently exercisable or exercisable within 60 days of November 14, 2016. We did not deem these shares outstanding,
however, for the purpose of computing the percentage ownership of any other person.
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Shares Beneficially Owned
Prior to This Offering
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Maximum
Number of
Shares That
May Be
Offered
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Shares Beneficially
Owned
After This Offering
(assuming the sale of
all shares that may be
sold hereunder)
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Number
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Percentage
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Number
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Percentage
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Selling Stockholders:
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Advent International Corporation and
affiliates
(1)
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25,456,231
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69.78
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%
|
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25,456,231
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—
|
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0
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%
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|
James R. Kibler
(2)
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489,144
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1.33
|
%
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81,277
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407,867
|
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1.11
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%
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William A. Kussell
(3)
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487,368
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1.32
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%
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92,473
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394,895
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1.07
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%
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Tri-Arc Food Systems, Inc.
(4)
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625,075
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1.71
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%
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150,000
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475,075
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|
1.30
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%
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(1)
|
The funds managed by Advent own 100% of Advent-Bojangles Acquisition Limited Partnership, which in turn owns
69.78% of Bojangles’, Inc., resulting in a 69.78% indirect ownership interest in Bojangles’, Inc. by the funds. This 69.78% indirect ownership interest consists of 11,651,315 shares indirectly owned by Advent International GPE VI Limited
Partnership; 6,565,163 shares indirectly owned by Advent International GPE VI-A Limited Partnership; 590,584 shares indirectly owned by Advent International GPE VI-B Limited Partnership; 598,222 shares indirectly owned by Advent International GPE
VI-C Limited Partnership; 460,758 shares indirectly owned by Advent International GPE VI-D Limited Partnership; 1,466,279 shares indirectly owned by Advent International GPE VI-E Limited Partnership; 2,191,782 shares indirectly owned by Advent
International GPE VI-F Limited Partnership; 1,379,728 shares indirectly owned by Advent International GPE VI-G Limited Partnership; 427,664 shares indirectly owned by Advent Partners GPE VI 2008 Limited Partnership; 15,274 shares indirectly owned by
Advent Partners GPE VI 2009 Limited Partnership; 33,094 shares indirectly owned by Advent Partners GPE VI 2010 Limited Partnership; 35,639 shares indirectly owned by Advent Partners GPE VI-A Limited Partnership; and 40,729 shares indirectly owned by
Advent Partners GPE VI-A 2010 L.P. Advent International Corporation is the
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-12-
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manager of Advent International LLC, which in turn is the general partner of GPE VI GP Limited Partnership and GPE VI GP Delaware Limited Partnership. GPE VI GP Limited Partnership is the general
partner of Advent International GPE VI Limited Partnership, Advent International GPE VI-A Limited Partnership, Advent International GPE VI-B Limited Partnership, Advent International GPE VI-F Limited Partnership and Advent International GPE VI-G
Limited Partnership, and GPE VI GP Delaware Limited Partnership is the general partner of Advent International GPE VI-C Limited Partnership, Advent International GPE VI-D Limited Partnership and Advent International GPE VI-E Limited Partnership.
Advent International Corporation is the manager of Advent International LLC, which is the general partner of Advent Partners GPE VI 2008 Limited Partnership, Advent Partners GPE VI 2009 Limited Partnership, Advent Partners GPE VI 2010 Limited
Partnership and Advent Partners GPE VI-A 2010 L.P. Advent International Corporation exercises voting and investment power over the shares held by each of these entities and may be deemed to have beneficial ownership of any shares held by them.
With respect to any shares of common stock held by the funds managed by Advent International Corporation, a group of individuals currently composed of David M. Mussafer, Steven M. Tadler and David M. McKenna, none of whom have individual voting or
investment power, exercises voting and investment power over any shares beneficially owned by Advent International Corporation. Each of David M. Mussafer, Steven M. Tadler and David M. McKenna disclaims beneficial ownership of any shares held by the
funds managed by Advent International Corporation, except to the extent of their respective pecuniary interest therein. The address of Advent International Corporation and each of the funds listed above is c/o Advent International Corporation, 75
State Street, Floor 29, Boston, MA 02109.
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(2)
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Includes 407,867 shares of common stock issuable in respect of options that are exercisable within 60 days of November 14, 2016. Mr. Kibler has served as a director of the Company since February 2014. Mr.
Kibler served as non-executive chairman of our board of directors from February 2014 until June 2016 and as a director of Bojangles’ Restaurants, Inc. from February 2014 to April 2015. From September 2007 to January 2014, Mr. Kibler
served as chief executive officer, president and director of Bojangles’ Restaurants, Inc.
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(3)
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Includes 346,472 shares of common stock issuable in respect of options that are exercisable within 60 days of November 14, 2016. Mr. Kussell has served as non-executive chairman of our board of directors since June
2016 and as a director since August 2011. Mr. Kussell served as a director of Bojangles’ Restaurants, Inc. from August 2011 to April 2015.
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(4)
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Tri-Arc Food Systems, Inc. is a franchisee who owns and operates 51 Bojangles’ restaurants as of November 13, 2016. Tommy L. Haddock, a member of our board of directors, is the president and director, and
a major stockholder, of Tri-Arc Food Systems, Inc. and has voting and investment power over such shares of our common stock held by Tri-Arc Food Systems, Inc.
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-13-
PLAN OF DISTRIBUTION
The selling stockholders may offer and sell, from time to time, some or all of the shares of common stock covered by this prospectus.
Registration of the shares of common stock covered by this prospectus does not mean, however, that those shares necessarily will be offered or sold. We will not receive any proceeds from any sale by the selling stockholders of the securities. See
“Use of Proceeds.” We will pay all costs, expenses and fees in connection with the registration of the shares of common stock, including fees of our counsel and accountants, fees payable to the SEC and fees of counsel to the selling
stockholders. The selling stockholders will pay all underwriting discounts and commissions and similar selling expenses, if any, attributable to the sale of the shares of common stock covered by this prospectus.
The selling stockholders may sell the shares of common stock covered by this prospectus from time to time, at market prices prevailing at the
time of sale, at prices related to market prices, at a fixed price or prices subject to change or at negotiated prices, by a variety of methods, including the following:
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in privately negotiated transactions;
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•
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through broker-dealers, who may act as agents or principals;
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•
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in a block trade in which a broker-dealer will attempt to sell a block of shares of common stock as agent but may position and resell a portion of the block as principal to facilitate the transaction;
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•
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through one or more underwriters on a firm commitment or best-efforts basis;
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•
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directly to one or more purchasers;
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•
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in any combination of the above.
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In effecting sales, brokers or dealers engaged by the
selling stockholders may arrange for other brokers or dealers to participate. Broker-dealer transactions may include:
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•
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purchases of the shares of common stock by a broker-dealer as principal and resales of the shares of common stock by the broker-dealer for its account pursuant to this prospectus;
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•
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ordinary brokerage transactions; or
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•
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transactions in which the broker-dealer solicits purchasers.
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At any time a particular offer
of the shares of common stock covered by this prospectus is made, a revised prospectus or prospectus supplement, if required, will be distributed which will set forth the aggregate amount of shares of common stock covered by this prospectus being
offered and the terms of the offering, including the name or names of any underwriters, dealers, brokers or agents, any discounts, commissions, concessions and other items constituting compensation from the selling stockholders and any discounts,
commissions or concessions allowed or reallowed or paid to dealers. Such prospectus supplement, and, if necessary, a post-effective amendment to the registration statement of which this prospectus is a part, will be filed with the SEC to reflect the
disclosure of additional information with respect to the distribution of the shares of common stock covered by this prospectus.
In
connection with the sale of the shares of common stock covered by this prospectus through underwriters, underwriters may receive compensation in the form of underwriting discounts or commissions and may also receive commissions from purchasers of
shares of common stock for whom they may act as agent. Underwriters may sell to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the
purchasers for whom they may act as agent.
Any underwriters, broker-dealers or agents participating in the distribution of the shares of
common stock covered by this prospectus may be deemed to be “underwriters” within the meaning of the Securities Act, and
-14-
any commissions received by any of those underwriters, broker-dealers or agents may be deemed to be underwriting commissions under the Securities Act. The selling stockholders may also be deemed
to be underwriters, and any discounts and commissions any of them receive and any profit any of them realize on the sale of the common stock may be deemed to be underwriting commissions under the Securities Act.
The selling stockholders may enter into derivative transactions with third parties, or sell shares of common stock not covered by this
prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell shares of common stock covered by this prospectus and the
applicable prospectus supplement, including in short sale transactions. If so, the third party may use shares of common stock pledged by the selling stockholders or borrowed from the selling stockholders or others to settle those sales or to close
out any related open borrowings of stock, and may use shares of common stock received from the selling stockholders in settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions will
be an underwriter and, if not identified in this prospectus, will be identified in the applicable prospectus supplement (or a post-effective amendment).
We may authorize underwriters, dealers and agents to solicit from third parties offers to purchase shares of common stock under contracts
providing for payment and delivery on future dates. The applicable prospectus supplement will describe the material terms of these contracts, including any conditions to the purchasers’ obligations, and will include any required information
about commissions we may pay for soliciting these contracts.
Underwriters, dealers, agents and other persons may be entitled, under
agreements that they may enter into with us and the selling stockholders, to indemnification by us and the selling stockholders against certain liabilities, including liabilities under the Securities Act.
In connection with the offering, the underwriters may purchase and sell shares of common stock in the open market. These transactions may
include short sales, stabilizing transactions and purchases to cover positions created by short sales. Short sales involve the sale by the underwriters of a greater number of shares than they are required to purchase in the offering.
“Covered” short sales are sales made in an amount not greater than the underwriters’ option to purchase additional shares from the selling stockholders in the offering. The underwriters may close out any covered short position by
either exercising their option to purchase additional shares or purchasing shares in the open market. In determining the source of shares to close out the covered short position, the underwriters will consider, among other things, the price of
shares available for purchase in the open market as compared to the price at which they may purchase shares through the overallotment option. “Naked” short sales are any sales in excess of such option. The underwriters must close out any
naked short position by purchasing shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the common stock in the open market after pricing
that could adversely affect investors who purchase in the offering. Stabilizing transactions consist of various bids for or purchases of common stock made by the underwriters in the open market prior to the completion of the offering.
The underwriters may also impose a penalty bid. This occurs when a particular underwriter repays to the underwriters a portion of the
underwriting discount received by it because the representatives have repurchased shares sold by or for the account of such underwriter in stabilizing or short covering transactions.
Purchases to cover a short position and stabilizing transactions may have the effect of preventing or retarding a decline in the market price
of the Company’s stock, and together with the imposition of the penalty bid, may stabilize, maintain or otherwise affect the market price of the common stock. As a result, the price of the common stock may be higher than the price that
otherwise might exist in the open market. If these activities are commenced, they may be discontinued at any time. These transactions may be effected on the NASDAQ Global Select Market, in the over-the-counter market or otherwise.
-15-
Certain underwriters, agents or dealers or their affiliates may have provided from time to time,
and may provide in the future, investment, commercial banking, derivatives and financial advisory services to the Company, the selling stockholders and their respective affiliates in the ordinary course of business, for which they have received or
may receive customary fees and commissions.
Some of the shares of common stock covered by this prospectus may be sold in private
transactions or under Rule 144 under the Securities Act rather than pursuant to this prospectus.
-16-
LEGAL MATTERS
The validity of the common stock offered hereby is being passed upon for us by our counsel, Pepper Hamilton LLP. Any underwriters will be
represented by their own legal counsel.
EXPERTS
The financial statements as of December 27, 2015 and December 28, 2014 and for each of the three fiscal years in the period ended
December 27, 2015 incorporated by reference in this prospectus and registration statement have been so included in reliance on the report of KPMG LLP, an independent registered public accounting firm, incorporated by reference herein, given on
the authority of said firm as experts in auditing and accounting.
-17-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other Expenses of Issuance and Distribution.
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The following table sets forth the
estimated expenses in connection with the issuance and distribution of the securities being registered other than underwriting discounts and commissions. All such expenses will be borne by the Registrant.
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SEC registration fee
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$
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50,286
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FINRA filing fee
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(1
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)
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Legal fees and expenses
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(1
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)
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Accounting fees and expenses
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(1
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)
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Printing expenses
|
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(1
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)
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Transfer agent and registrar fees and expenses
|
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(1
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)
|
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Miscellaneous expenses
|
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(1
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)
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Total
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$
|
(1
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)
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(1)
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Fees and expenses (other than the SEC registration fee to be paid upon the filing of this registration statement) will depend on the number and nature of the offerings of common stock, and cannot be estimated at this
time. An estimate of the aggregate expenses in connection with the issuance and distribution of the common stock being offered will be included in any applicable prospectus supplement.
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Item 15.
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Indemnification of Directors and Officers.
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Section 102 of the Delaware General
Corporation Law, or DGCL, allows a corporation to eliminate the personal liability of directors to a corporation or its stockholders for monetary damages for a breach of a fiduciary duty as a director, except where the director breached his duty of
loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase or redemption in violation of Delaware corporate law or obtained an improper
personal benefit.
Section 145 of the DGCL provides, among other things, that a 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, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee
or agent of the corporation, or is or was serving at the corporation’s request 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 the person in connection with the action, suit or proceeding. The power to indemnify applies if (i) such person is successful on the merits or otherwise
in defense of any action, suit or proceeding or (ii) such person acted in good faith and in a manner he or she 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 power to indemnify applies to actions brought by or in the right of the corporation as well, but only to the extent of defense expenses (including attorneys’ fees but
excluding amounts paid in settlement) actually and reasonably incurred and not to any satisfaction of judgment or settlement of the claim itself, and with the further limitation that in such actions no indemnification shall be made in the event of
any adjudication of negligence or misconduct in the performance of his duties to the corporation, unless a court believes that in light of all the circumstances indemnification should apply.
Section 174 of the DGCL provides, among other things, that a director who willfully and 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
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time, may avoid liability by causing his or her dissent to such actions to be entered in the books containing the minutes of the meetings of the board of directors at the time the action occurred
or immediately after the absent director receives notice of the unlawful acts.
Our amended and restated certificate of incorporation
states that no director shall be personally liable to us or any of our stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the
DGCL as it exists or may be amended. A director will also not be exempt from liability for any transaction from which he or she derived an improper personal benefit, or for violations of Section 174 of the DGCL. To the full extent permitted by
the DGCL, our amended and restated certificate of incorporation authorizes us to indemnify any and all persons whom we have the power to indemnify under the law.
Our amended and restated bylaws provide that we will indemnify, to the fullest extent permitted by the DGCL, each person who was or is made a
party or is threatened to be made a party in any legal proceeding by reason of the fact that he or she is or was our director or officer or is or was our director or officer serving at our request as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise. However, such indemnification will be permitted only if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to our best
interests, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. Indemnification will be authorized on a case-by-case basis by (i) our board of directors by a
majority vote of disinterested directors, (ii) a committee of the disinterested directors, (iii) independent legal counsel in a written opinion if (i) and (ii) are not available, or if disinterested directors so direct, or
(iv) the stockholders. Indemnification of former directors or officers shall be determined by any person authorized to act on the matter on our behalf. Expenses incurred by a director or officer in defending against such legal proceedings will
be payable before the final disposition of the action, provided that the director or officer undertakes to repay us if it is later determined that he or she is not entitled to indemnification.
We have also entered into separate indemnification agreements with our directors and certain officers. Each indemnification agreement
provides, among other things, for indemnification to the fullest extent permitted by law and our 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 provide for the advancement or payment of all expenses to the indemnitee and for reimbursement to us if it is found that such indemnitee is not entitled to such indemnification under
applicable law and our amended and restated certificate of incorporation and amended and restated bylaws.
Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to our directors, officers or controlling persons pursuant to the foregoing provisions, we have 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. We maintain directors’ and officers’ liability insurance for our officers and directors.
We maintain standard policies of insurance under which coverage is provided (a) to our directors and officers against loss rising from
claims made by reason of breach of duty or other wrongful act, and (b) to the company with respect to payments which may be made by us to such officers and directors pursuant to the above indemnification provisions or otherwise as a matter of
law.
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Item 16.
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List of Exhibits.
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Exhibit
No.
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Description
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1.1*
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Form of Underwriting Agreement.
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4.1
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Specimen of Common Stock Certificate of Bojangles’, Inc. (incorporated by reference to Exhibit 4.1 to Amendment No. 1 to the company’s registration statement on Form S-1 filed April 27, 2015—Commission File No.
333-203268).
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5.1**
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Opinion of Pepper Hamilton LLP.
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23.1**
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Consent of KPMG LLP, an independent registered public accounting firm.
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23.2**
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Consent of Pepper Hamilton LLP (contained in Exhibit 5.1).
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24.1**
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Powers of Attorney (included on signature page to this registration statement).
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If applicable, to be filed as an exhibit to a document to be incorporated by reference herein or by a post-effective amendment to this registration statement in connection with a specific offering of securities.
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(a)
Rule 415 Offering
. 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 SEC pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than a 20% 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 clauses (i),
(ii) and (iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of 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;
(4) that, for the purpose of determining liability under the Securities Act to any purchaser:
(A) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement
as of the date the filed prospectus was deemed part of and included in the registration statement; and
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(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or
(b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by section 10(a) of the Securities Act
shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; provided, however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such
effective date; and
(5) that, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the
initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such
securities to such purchaser:
(A) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the
offering required to be filed pursuant to Rule 424;
(B) Any free writing prospectus relating to the offering prepared by
or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;
(C) The portion of any
other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(D) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(b)
Filings Incorporating Subsequent Exchange Act Documents by Reference
. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of 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)
Request for Acceleration of
Effective Date or Filing of Registration Statement Becoming Effective Upon Filing
. 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 SEC 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
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 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 November 16,
2016.
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BOJANGLES’, INC.
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By:
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/s/ Clifton Rutledge
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Clifton Rutledge
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Director, President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Clifton Rutledge and M. John Jordan
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 any and all additional registration statements pursuant to rule 462(b) of the Securities Act of 1933, 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 and on the dates indicated.
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Signature
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Title
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Date
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/s/ Clifton Rutledge
Clifton Rutledge
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Director, President and Chief Executive Officer (Principal Executive Officer)
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November 16, 2016
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/s/ M. John Jordan
M. John Jordan
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Senior Vice President of Finance, Chief Financial Officer and Treasurer
(Principal Financial and Accounting Officer)
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November 16, 2016
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/s/ William A. Kussell
William A. Kussell
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Non-Executive Chairman and Director
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November 16, 2016
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/s/ Steven J. Collins
Steven J. Collins
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Director
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November 16, 2016
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/s/ Tommy L. Haddock
Tommy L. Haddock
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Director
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November 16, 2016
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/s/ James R. Kibler
James R. Kibler
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Director
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November 16, 2016
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II-5
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Signature
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Title
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Date
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/s/ Steven M. Tadler
Steven M. Tadler
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Director
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November 16, 2016
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/s/ Christopher J. Doubrava
Christopher J. Doubrava
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Director
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November 16, 2016
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/s/ Robert E. Alderson
Robert E. Alderson
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Director
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November 16, 2016
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/s/ John E. Currie
John E. Currie
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Director
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November 16, 2016
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/s/ Starlette B. Johnson
Starlette B. Johnson
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Director
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November 16, 2016
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II-6
EXHIBIT INDEX
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Exhibit
No.
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Description
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5.1
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Opinion of Pepper Hamilton LLP.
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23.1
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Consent of KPMG LLP, an independent registered public accounting firm.
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23.2
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Consent of Pepper Hamilton LLP (contained in Exhibit 5.1).
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24.1
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Powers of Attorney (included on signature page to this registration statement).
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