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As Filed With the Securities and Exchange Commission on February 26, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON. D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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STAR BUFFET, INC.
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(Exact name of registrant as specified in its charter)
Delaware 84-1430786
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
440 Lawndale Drive, Salt Lake City, Utah 84115-2917
(Address of Principal Executive Offices) (Zip Code)
1997 STOCK INCENTIVE PLAN
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(Full title of the plan)
Robert E. Wheaton
Chief Executive Officer and President
Star Buffet, Inc.
440 Lawndale Drive, Salt Lake City, Utah 84115-2917
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(Name and address of agent for service)
(801) 463-5500
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Proposed Maximum
Securities Amount To Be Offering Proposed Maximum Amount of
To Be Registered Registered(1) Price Per Share Aggregate Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock,
$0.001 par value 750,000 shares (2) $9,371,941.50 (2) $2,764.72
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</TABLE>
(1) Includes additional shares of Common Stock that may become issuable pursuant
to the anti-dilution adjustment provisions of the Registrant's 1997 Stock
Incentive Plan (the "1997 Plan").
(2) In accordance with Rule 457(h), the aggregate offering price of shares of
Common Stock registered hereby which would be issued upon exercise of the
options to purchase 608,308 shares of Common Stock, which options are
currently outstanding, is based upon the $12.00 per share exercise price of
such options. With respect to the remaining shares of Common Stock
registered hereby which would be issued upon exercise of the remaining
options which Registrant is authorized to grant under the 1997 Plan, the
aggregate offering price is estimated solely for purposes of calculating the
registration fee, in accordance with Rule 457(h), on the basis of the price
of securities of the same class, as determined in accordance with Rule
457(c), using the average of the high and low prices reported by the Nasdaq
National Market for the Common Stock on February 20, 1998, which was $14.625
per share.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated by reference in this registration
statement:
(a) The Registrant's Prospectus dated September 24, 1997 filed pursuant
to Rule 424(b) of the Securities Act of 1933, as amended (the "Securities Act").
(b) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of the fiscal year covered by the document referred to in
(a) above.
(c) The description of the Registrant's Common Stock which is contained
in the Registrant's Registration Statement on Form 8-A filed under the Exchange
Act, including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be a part
hereof from the date of filing such documents, except as to any portion of any
future annual or quarterly report to stockholders or document which is not
deemed filed under such provisions. For the purposes of this registration
statement, any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded to
the extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) As permitted by the Delaware General Corporation Law, the
Registrant's Certificate of Incorporation eliminates the liability of directors
to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director, except to the extent otherwise required by the
Delaware General Corporation Law.
(b) The Registrant's Bylaws provide that the Registrant will indemnify
each person who was or is made a party to any proceeding by reason of the fact
that such person is or was a director or officer of the Registrant against all
expense, liability and loss reasonably incurred or suffered by such person in
connection therewith to the fullest extent authorized by the Delaware General
Corporation Law.
(c) The Registrant has entered into indemnification agreements with
each of its directors and executive officers, which provide for the
indemnification of such directors and executive officers against any and all
expenses, judgments, fines, penalties and amounts paid in settlement, to the
fullest extent permitted by law.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration
Statement:
Number Description
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5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation, Counsel to the Registrant.
10.1 Star Buffet, Inc. 1997 Stock Incentive Plan (the "1997
Plan").*
10.2 Forms of Stock Option Agreement pertaining to the 1997
Plan.*
23.1 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in Exhibit 5.1).
23.2 Consents of KPMG Peat Marwick LLP.
24.1 Power of Attorney (included on signature page).
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* Incorporated by reference to the same number exhibit to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-32249)
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ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Salt Lake City, State of Utah, on the 23rd day of
February, 1998.
STAR BUFFET, INC.
By: /s/ ROBERT E. WHEATON
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Robert E. Wheaton
Chief Executive Officer and
President
POWER OF ATTORNEY
We, the undersigned officers and directors of Star Buffet, Inc., do
hereby constitute and appoint Robert E. Wheaton, Theodore Abajian and Charlotte
Miller, or any of them, our true and lawful attorneys-in-fact and agents, each
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments to
this Registration Statement, and to file the same, with exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each of said attorneys-in-fact and agents, 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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ ROBERT E. WHEATON Chief Executive Officer, February 23, 1998
- --------------------------- President and Director
Robert E. Wheaton (Principal Executive
Officer)
/s/ THEODORE ABAJIAN Chief Financial Officer February 23, 1998
- --------------------------- (Principal Financial and
Theodore Abajian Principal Accounting
Officer)
/s/ WILLIAM P. FOLEY II Chairman of the Board February 23, 1998
- --------------------------- of Directors
William P. Foley II
/s/ C. THOMAS THOMPSON Director February 23, 1998
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C. Thomas Thompson
/s/ STUART W. CLIFTON Director February 23, 1998
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Stuart W. Clifton
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ JACK M. LLOYD Director February 23, 1998
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Jack M. Lloyd
/s/ THOMAS G. SCHADT Director February 23, 1998
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Thomas G. Schadt
/s/ NORMAN N. HABERMANN Director February 23, 1998
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Norman N. Habermann
/s/ JOHN F. NORTH, JR. Director February 23, 1998
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John F. North, Jr.
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Description
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5.1 Opinion of Stradling, Yocca, Carlson & Rauth, a Professional
Corporation.
10.1 Star Buffet, Inc. 1997 Stock Incentive Plan (the "1997 Plan").*
10.2 Forms of Stock Option Agreement pertaining to the 1997 Plan.*
23.1 Consent of Stradling, Yocca, Carlson & Rauth, a Professional
Corporation (included in Exhibit 5.1).
23.2 Consents of KPMG Peat Marwick LLP.
24.1 Power of Attorney (included on the signature page).
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* Incorporated by reference to the same number exhibit to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-32249)
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EXHIBIT 5.1
[LETTERHEAD OF STRADLING, YOCCA, CARLSON & RAUTH]
February 25, 1998
Star Buffet, Inc.
440 Lawndale Drive
Salt Lake City, Utah 84115-2917
Re: Registration Statement on Form S-8
Gentlemen:
At your request, we have examined the form of Registration Statement on
Form S-8 (the "Registration Statement") being filed by Star Buffet, Inc., a
Delaware corporation (the "Company"), with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended, of a total of 750,000 shares of the Company's common stock, $.001
par value ("Common Stock"), issuable under the Company's 1997 Stock Incentive
Plan (the "1997 Plan").
We have examined the proceedings heretofore taken and are familiar with
the additional proceedings proposed to be taken by the Company in connection
with the authorization, issuance and sale of the securities referred to above.
Based on the foregoing, it is our opinion that the 750,000 shares of
Common Stock to be issued under the 1997 Plan against full payment in accordance
with the respective terms and conditions of the 1997 Plan will be legally and
validly issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ STRADLING, YOCCA, CARLSON & RAUTH
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Stradling, Yocca, Carlson & Rauth
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EXHIBIT 23.2
The Board of Directors
Star Buffet, Inc.:
We consent to the incorporation by reference in this Registration Statement of
Star Buffet, Inc. on Form S-8 of our report dated February 14, 1997 for Casa
Bonita Restaurants.
/s/ KPMG PEAT MARWICK LLP
Orange County, California
December 11, 1997
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EXHIBIT 23.2
The Board of Directors
Star Buffet, Inc.:
We consent to the incorporation by reference in this Registration Statement of
Star Buffet, Inc. on Form S-8 of our report dated July 22, 1997 (except as to
note 9, which is as of July 28, 1997) for HTB Restaurants, Inc.
/s/ KPMG PEAT MARWICK LLP
Orange County, California
December 11, 1997
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EXHIBIT 23.2
The Board of Directors
Star Buffet, Inc.:
We consent to the incorporation by reference in this Registration Statement of
Star Buffet, Inc. on Form S-8 of our report dated July 28, 1997 for Star Buffet,
Inc.
/s/ KPMG PEAT MARWICK LLP
Orange County, California
December 11, 1997
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EXHIBIT 23.2
The Board of Directors
Star Buffet, Inc.:
We consent to the incorporation by reference in this Registration Statement of
Star Buffet, Inc. on Form S-8 of our report dated September 9, 1997 for North's
Restaurants.
/s/ KPMG PEAT MARWICK LLP
Portland, Oregon
December 11, 1997
