<PAGE> 1
As Filed With the Securities and Exchange Commission on April 23, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON. D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
STAR BUFFET, INC.
(Exact name of registrant as specified in its charter)
Delaware 84-1430786
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
440 Lawndale Drive, Salt Lake City, Utah 84115-2917
(Address of Principal Executive Offices) (Zip Code)
----------
1997 EMPLOYEE STOCK PURCHASE PLAN
(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
(Name and address of agent for service)
(801) 463-5500
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================
Title of Proposed Maximum
Securities Amount To Be Offering Proposed Maximum Amount of
To Be Registered Registered(1) Price Per Share(2) Aggregate Offering Price Registration Fee
======================================================================================================
<S> <C> <C> <C> <C>
Common Stock,
$0.001 par value 750,000 shares $16.156 $12,117,000(2) $3,574.52
======================================================================================================
</TABLE>
(1) Includes additional shares of Common Stock that may become issuable
pursuant to the anti-dilution adjustment provisions of the Registrant's
1997 Employee Stock Purchase Plan (the "1997 ESPP").
(2) In accordance with Rule 457(h), the aggregate offering price of shares of
Common Stock registered is estimated, solely for purposes of calculating
the registration fee, 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 April 16, 1998, which was $15.813 per share.
<PAGE> 2
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.
II-1
<PAGE> 3
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
Number Description
------ -----------
<C> <S>
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation, Counsel to the Registrant.
10.1 Star Buffet, Inc. 1997 Employee Stock Purchase Plan (the "1997
ESPP").
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).
</TABLE>
II-2
<PAGE> 4
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.
II-3
<PAGE> 5
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 25th day of
March, 1998.
STAR BUFFET, INC.
By: /s/ ROBERT E. WHEATON
-----------------------------------
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
--------- ----- ----
<S> <C> <C>
/s/ ROBERT E. WHEATON
- ------------------------------ Chief Executive Officer, March 25, 1998
Robert E. Wheaton President and Director
(Principal Executive
Officer)
/s/ THEODORE ABAJIAN
- ------------------------------ Chief Financial Officer
Theodore Abajian (Principal Financial and March 25, 1998
Principal Accounting
Officer)
/s/ WILLIAM P. FOLEY II
- ------------------------------ Chairman of the Board March 25, 1998
William P. Foley II of Directors
/s/ C. THOMAS THOMPSON
- ------------------------------ Director March 25, 1998
C. Thomas Thompson
/s/ STUART W. CLIFTON
- ------------------------------ Director March 25, 1998
Stuart W. Clifton
</TABLE>
<PAGE> 6
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ JACK M. LLOYD
- ------------------------------ Director March 25, 1998
Jack M. Lloyd
/s/ THOMAS G. SCHADT
- ------------------------------ Director March 25, 1998
Thomas G. Schadt
/s/ NORMAN N. HABERMANN
- ------------------------------ Director March 25, 1998
Norman N. Habermann
/s/ JOHN F. NORTH, JR.
- ------------------------------ Director March 25, 1998
John F. North, Jr.
</TABLE>
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<C> <S>
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation.
10.1 Star Buffet, Inc. 1997 Employee Stock Purchase Plan (the "1997
ESPP").
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).
</TABLE>
<PAGE> 1
EXHIBIT 5.1
STRADLING YOCCA CARLSON & RAUTH
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
660 NEWPORT CENTER DRIVE, SUITE 1600
NEWPORT BEACH, CALIFORNIA 92660-6441
TELEPHONE (714) 725-4000
FACSIMILE (714) 725-4100
SAN FRANCISCO OFFICE
44 MONTGOMERY STREET, SUITE 2950
SAN FRANCISCO, CALIFORNIA 94104
TELEPHONE (415) 765-9180
FACSIMILE (415) 765-9187
April 23, 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 Employee Stock
Purchase Plan (the "1997 ESPP").
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 ESPP against full payment in
accordance with the respective terms and conditions of the 1997 ESPP 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,
STRADLING YOCCA CARLSON & RAUTH
<PAGE> 1
EXHIBIT 10.1
STAR BUFFET, INC.
1997
EMPLOYEE STOCK PURCHASE PLAN
<PAGE> 2
STAR BUFFET, INC.
(a Delaware corporation)
1997 EMPLOYEE STOCK PURCHASE PLAN
1. Purpose of Plan. The purpose of this 1997 Stock Purchase Plan (the
"Plan") is to encourage a sense of proprietorship on the part of employees of
Star Buffet, Inc., a Delaware corporation (the "Company"), and its subsidiary
corporations (as defined below) by assisting them in making regular purchases of
shares of the Company, and thus to benefit the Company by increasing such
employees' interest in the growth of the Company and subsidiary corporations and
in such entities' financial success. Participation the Plan is entirely
voluntary, and the Company makes no recommendations to its employees as to
whether they should participate.
2. Definitions.
2.1 "Base Earnings" shall mean the Employee's regular salary rate
before deductions required by law and deductions authorized by the Employee.
Base Earnings do not include: pay for overtime, extended workweek schedules, or
any other form of extra compensation; payments by the Company or subsidiary
corporations, as applicable, of social security, worker's compensation,
unemployment compensation, any disability payments or other payments required by
statute; or contributions by the Company or subsidiary corporations, as
applicable, for insurance, annuity, or other employee benefit plans.
2.2 "Board" shall mean the Board of Directors of the Company.
2.3 "Broker" shall mean the financial institution designated to
act as Broker under the Plan pursuant to Paragraph 17 hereof.
<PAGE> 3
2.4 "Brokerage Account" shall mean an account established on
behalf of each Participant pursuant to Paragraph 9.1 hereof.
2.5 "Committee" shall mean a Stock Purchase Committee appointed
by the Board.
2.6 "Common Stock" shall mean the Common Stock of the Company.
2.7 "Company" shall mean Star Buffet, Inc., a Delaware
corporation, or any successor.
2.8 "Company Account" shall mean the account established in the
name of the Company pursuant to Paragraph 7.2. hereof.
2.9 "Employee" shall mean any person who has reached the age of
21 and who is currently employed by the Company or one of its subsidiary
corporations (i) on an hourly basis as a restaurant employee for at least 30
hours per week and has been so employed continuously since September 30, 1997 or
during the preceding one (l) year (provided that the Board or the Committee may
in its discretion and in writing waive such one (l) year requirement), excluding
non-employees and persons on leave of absence; (ii) on an hourly basis as a
non-restaurant employee for at least 30 hours per week and has been so employed
continuously ding the preceding 90 days (provided that the Board or the
Committee may in its discretion and in writing waive such 90 day requirement),
excluding non-employees and persons on leave of absence or (iii) is exempt from
the overtime and minimum wage requirements under federal and state laws and has
been so employed continuously during the preceding 90 days (provided that the
Board or the Committee may in its and in writing discretion waive such 90-day
requirement), excluding non-employees and persons on leave of absence. An
Employee may also be referred to herein as a Participant.
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<PAGE> 4
2.10 "Enrollment Form" shall mean the Employee Stock Purchase
Plan Enrollment Form.
2.11 "Interested Party" shall mean the persons described in
Paragraph 16 hereof.
2.12 "Plan" shall mean this 1997 Employee Stock Purchase Plan.
2.13 "Subsidiary" shall mean a corporation, domestic or foreign,
of which not less than 50% of the voting shares are held by the Company or a
subsidiary corporation, whether or not such corporation now exists or is
hereafter organized or acquired by the Company or a subsidiary corporation.
3. Administration. The Plan shall be administered by the Board or, in
the discretion of the Board, by the Committee which shall consist of not less
than two persons to be appointed by, and to serve at the pleasure of, the Board.
No number of the Board or Committee who is not an Employee shall be eligible to
participate in the Plan. An aggregate of 750,000 shares of Common Stock shall be
subject to the Plan, provided that such number shall be automatically adjusted
to reflect any stock split, reverse stock split, stock dividend,
recapitalization, merger, consolidation, combination, reclassification or
similar corporate change. The Board or the Committee shall have full authority
and discretion to construe, interpret, apply and administer the Plan, and to
establish and amend such rules and procedures as it deems necessary or
appropriate from time to time for the proper administration of the Plan. In
addition, the Board or the Committee may engage or hire such persons, including
without limitation, the Broker, to provide administrative, record keeping and
other similar services in correction with its administration of the Plan, as it
may deem necessary or
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<PAGE> 5
appropriate from time to time. The members of the Board and the Committee and
the officers of the Company shall be entitled to rely upon all certificates and
reports made by such persons, including the Broker, and upon all opinions given
by any legal counsel or investment adviser selected or approved by the Board or
the Committee. The members of the Board and the Committee and the officers of
the Company shall be fully protected in respect of any action taken or suffered
to be taken by them in good faith in reliance upon any such certificates,
reports, opinions or other advice of any such person, and all action so taken or
suffered shall be conclusive upon each of them and upon all Participants. The
Company shall indemnify each member of the Board and the Committee and any other
officer or employee of the Company who is designated to carry out any
responsibilities under the Plan for any liability arising out of or connected
with his or her duties hereunder, except such liability as may arise from such
person's gross negligence or willful misconduct.
4. Eligibility. Any Employee as defined in Paragraph 2.9 shall be
eligible to participate in the Plan. Any Employee participating in the Plan who,
after the commencement of a particular Offering Period, as defined in Paragraph
5, shall for any reason fail to meet the standards of eligibility shall be
considered to have withdrawn from the Plan, effective as of the date upon which
the Participant shall have become ineligible. Any reference in this Plan to
withdrawal by a Participant from the Plan shall include ineligibility as
described in this Paragraph 4.
5. Offering Periods. Shares shall be offered pursuant to this Plan in
periods which coincide with the Company's fiscal quarters ("Offering Periods"),
commencing on the effective date of the Plan pursuant to Paragraph 21 and
continuing thereafter until terminated in accordance with Paragraph 15. The
Board shall have the power to change the duration of Offering Periods if such
change is announced at least 10 days prior to the scheduled beginning of the
first Offering Period to be affected.
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<PAGE> 6
6. Participation. Participation in the Plan is voluntary. An eligible
Employee may apply to participate in the Plan by submitting to the Company's
Benefits Department an Enrollment Form authorizing a payroll deduction and
purchase of shares. The Enrollment Form shall be on a form provided by the
Company and may be submitted to the Company at any time. Participation shall not
be effective until the Enrollment Form is reviewed and accepted by the Company
by written notice to the Employee. Once the Enrolment Form has been reviewed and
accepted by the Company, participation in the Plan shall commence immediately.
7. Payroll Deductions.
7.1 Election. At the time a Participant submits an Enrollment
Form, the Participant shall elect to have payroll deductions made on each payday
during the Offering Period at a whole percentage from 3% to 10% of the Base
Earnings which the Participant is to receive on such payday.
7.2 Holding of Funds. All payroll deductions authorized by each
Participant shall be held in a non-interest account in the name of the Star
Buffet, Inc. Employee Stock Purchase Plan (the "Company Account") until used to
purchase Common Stock and shall not be used for any other purpose. The Company
shall maintain records reflecting the amount in the Company Account of each
Participant. All withholding taxes in connection with a Participant's payroll
deduction shall be deducted from the remainder of the Base Earnings paid to the
Participant and not from the amount to be placed in the Company Account. A
Participant may not make any additional payments into the Company Account. All
amounts in the Company Account derived from payroll deductions shall be referred
to as the "Participant Contribution."
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<PAGE> 7
7.3 Changes in Election. Participation in the Plan will continue
until the Participant withdraws from the Plan, is no longer eligible to
participate or the Plan is terminated. Such participation shall be on the basis
of the payroll deduction election submitted by such Employee to the Company and
then currently in effect. Each such election shall remain in effect until the
effective date of any change in the amount of payroll deduction as requested by
the Participant and accepted by the Company. To be effective in any Offering
Period, a change in the amount of payroll deduction must be requested in writing
and submitted to the Company. A Participant may change his withholding
percentage at any time during an Offering Period, but only one time during any
Offering Period. If a Participant's Base Earnings change during an Offering
Period, the amount of the payroll deduction will be changed to the figure
reflecting the Participant's previously elected deduction percentage applied to
his or her new Base Earnings (but will not in any event be in excess of 10% of
the Participant's Base Earnings).
8. Contribution by the Company or a Subsidiary. The Company or a
Subsidiary shall make matching contributions (the "Matching Contribution") as
follows:
8.1 Officers and Directors as Participants. For each officer or
director of the Company or a Subsidiary who participates in the Plan and remains
an Employee of the Company or a Subsidiary for at least one year after the
termination of a particular Offering Period, the Company or Subsidiary shall
make upon the one year anniversary date after such Offering Period a Matching
Contribution equal to either one-half of the number of shares purchased on
behalf of such Participant or equal to one-half of the dollar amount contributed
by such Participant during such one year earlier Offering Period subject to
Paragraph 8.3, at the sole discretion of the Company, less all withholding
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<PAGE> 8
taxes in connection with such Matching Contribution. "Officer" shall mean those
individuals elected as Officers by the Board of Directors of the Company and its
Subsidiaries, and shall be determined as of the end of an Offering Period. ,
"Director" shall mean all employee and a member of the Board of Directors of the
Company and its subsidiaries. Withholding taxes as and when required in
connection with such Matching Contribution shall be withheld based upon the
person's existing withholding percentages or as otherwise required by law from
the Participant's base earnings.
8.2 Other Participants. For each Participant in the Plan (other
than an officer or director) who remains an Employee of the Company or a
Subsidiary for at least one year after the termination of a particular Offering
Period, the Company or Subsidiary shall make upon the one year anniversary date
after such Offering Period a Matching Contribution equal to either one-third of
the number of shares purchased on behalf of such Participant or equal to
one-third of the dollar amount contributed by such Participant during such one
year earlier Offering Period subject to Paragraph 8.3, at the sole discretion of
the Company. Withholding taxes as and when required in connection with such
Matching Contribution shall be withheld based upon the person's existing
withholding percentages or as otherwise required by law from the Participant's
base earnings.
8.3 Timing of Withholding. The Company shall withhold taxes in
two subsequent pay periods or as otherwise required by law.
9. Purchase of Shares Regarding Participant's Contribution.
9.1 Brokerage Account. Following the acceptance by the Company of
a Participant's Enrollment Form, the Company shall direct the Broker to open and
maintain an account (the "Brokerage Account") in the name of such Participant
and to purchase shares of Common Stock on behalf of such Participant as
permitted under this Plan.
-8-
<PAGE> 9
9.2 Delivery of Funds to Broker from Company. The Company, from
time to time during an Offering Period, shall delivery to the Broker an amount
equal to the total of all Participant Contributions together with a list of the
amount of such Contributions from each Participant.
9.3 Broker's Purchase of Shares. From time to time, the Broker,
as agent for the Participants, shall purchase as many full shares or fractional
shares of Common Stock as such Contributions will permit. The shares to be
purchased shall be purchased at the then current fair market value and may, at
the election of the Company, be either treasury shares, shares authorized but
unissued, or shares purchased on the open market. The amount of Common Stock
purchased by the Broker pursuant to this Paragraph 9.3 shall be allocated to the
respective Brokerage Account of each Participant on the basis of the average
cost of the Common Stock so purchased, in proportion to the amount allocable to
each Participant. At the end of each Offering Period under the Plan, each
Participant shall acquire full ownership of all full shares and fractional
shares of Common Stock purchased for his Brokerage Account. Unless otherwise
requested by the Participant, all such full shares and fractional shares so
purchased shall be registered in the name of the Broker and will remain so
registered until delivery is requested in accordance with Paragraph 9.5.
9.4 Fees and Commissions. The Company shall pay the Broker's
administrative charges for opening and maintains the Brokerage Accounts for
active Participants and the brokerage commissions on purchases made for such
Brokerage Accounts which are attributable to Participant Contributions and
Matching Contributions under the Plan. Such Brokerage Accounts may be utilized
for other transactions as described in Paragraph 9.5 below, but any fees,
commissions or
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<PAGE> 10
other charges by the Broker in connection with such other transactions shall, in
certain circumstances described in Paragraph 9.5, be payable directly to the
Broker by the Participant
9.5 Participant Accounts with Broker. Each Participant's
Brokerage Account shall be credited with all cash dividends paid with respect to
full shares and fractional shares of Common Stock purchased pursuant to
Paragraphs 9.3 and 10 unless such shares are registered in the Participant's
name. Unless otherwise instructed by the Participant, dividends on such Common
Stock shall automatically be reinvested in Common Stock as soon as practicable
following receipt of such dividends by the Broker. Applicable fees and brokerage
commissions on the reinvestment of such dividends will be payable by the
Participant. Any stock dividends or stock splits which are made with respect to
shares of Common Stock purchased pursuant to Paragraphs 9.3 and 10 shall be
credited to the Participant's Brokerage Account without charge. Any Participant
may request that a certificate for any or all of the full shares of Common Stock
credited to his or her Brokerage Account be delivered to him at any time;
provided, however, the Participant shall be charged by the Broker for any fees
applicable to such requests. A Participant may request the Broker at any time to
sell any or all of the full shares or fractional shares of Common Stock credited
to his Brokerage Account. Unless otherwise instructed by the Participant, upon
such sale, the Broker will mail to the Participant a check for the proceeds,
less any applicable fees and brokerage commissions and any transfer taxes,
registration fees or other normal charges which shall be payable by the
Participant. Except as provided in Paragraph 13, a request by the Participant to
the Broker to sell shares of Common Stock or for delivery of certificates shall
not affect an Employee's status as a Participant. A Participant who has a
Brokerage Account with the Broker may purchase additional shares of Common Stock
of the Company for his Brokerage Account at any time by separate purchases
arranged through the Broker. When any such purchases are made, the Participant
will be charged by
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<PAGE> 11
the Broker for any and all fees and brokerage commissions applicable to such
transactions. In addition, any subsequent transactions with respect to such
shares acquired including, but not limited to, purchases, sales, reinvestment of
dividends, requests for certificates, and crediting of stock dividends or stock
splits, shall be at the expense of the Participant and the Broker shall charge
the Participant directly for any and all fees and brokerage commissions
applicable to such transactions.
10. Issuance of Shares Regarding Matching Contribution. Subject to
Paragraph 19, on the 10th day after the first anniversary of an Offering Period,
each Participant's direct employer shall make the Matching Contribution for each
qualified Participant in an amount described in Paragraph 8 by delivering to the
Broker an amount equal to total funds necessary to make the Matching
Contributions described in Paragraph 8 together with a list of the number of
shares allocable to the Brokerage Account of each Participant. As soon as
practicable thereafter, the Broker shall purchase the number of shares of Common
Stock required in order to make the Matching Contributions. The shares to be
purchased shall be purchased at the then current fair market value and allocated
to participant accounts on the settlement date. The shares may, at the election
of the Company, be either treasury shares, shares authorized by unissued, or
shoes purchased on the open market. At the time of such allocation, each
Participant shall immediately acquire full ownership of all full and factional
shares of Common Stock purchased. Unless otherwise requested by the Participant,
all such shares so purchased shall be registered in the name of the Broker and
will remain so registered until delivery is requested in accordance with
Paragraph 9.5.
11. Voting and Shares. All voting rights with respect to the full and
fractional shares of Common Stock held in the Brokerage Account of each
Participant may be exercised by each Participant and the Broker shall exercise
such voting rights in accordance with the Participant's signed proxy instruction
duly delivered to the Broker.
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<PAGE> 12
12. Statement of Account. As soon as practicable after the end of each
Offering Period, the Broker shall deliver to each Participant statement
regarding all activity in his or her Brokerage Account, including his or her
participant in the Plan for such Offering Period. Such statement will show the
number of shares acquired or sold, the price per share, the transaction date,
stock splits, dividends paid, dividends reinvested and the total number of
shares held in the Brokerage Account. The Broker shall also deliver to each
Participant as promptly as practicable, by mail or otherwise, all notices of
meetings, proxy statements and other material distributed by the Company to its
stockholders, including the Company's annual report to its stockholders
containing audited financial statements.
13. Withdrawal from the Plan. A Participant may withdraw frown the Plan,
effective as of the end of any Offering Period, by giving written notice to the
Company not later than the 15th day prior to the end of such Offering Period.
Upon any such withdrawal, the Participant shall be entitled to receive as
promptly as possible from the Company all of the Participant's payroll
deductions credited to the Company Account in his or her name during the
applicable Offering Period, but shall not be entitled to the benefit of any
Matching Contributions. In the event a Participant withdraws from the Plan
pursuant to this Paragraph 13, the Company shall notify the Broker as soon as
practicable and the broker shall maintain or close the Participant's Brokerage
Account in accordance with the procedures set forth in Paragraph 16. A
Participant who withdraws from the Plan may not reenter the Plan except by
execution and delivery of a new Enrollment Form and payroll deduction election,
and his or her participation shall be effective upon acceptance of the
Enrollment Form by the Company by written notice to the Employee not sooner than
30 days after
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<PAGE> 13
receipt of the Enrollment Form, provided that the Company may in its discretion
accept an Enrollment Form prior to the expiration of such 30 days.
14. Termination of Employment. In the event of the termination of a
Participant's employment with the Company or a Subsidiary, for any reason during
an Offering Period, including, but not limited to, the death of a Participant,
participation in the Plan shall terminate as well as any rights to future
Matching Contributions. The Participant or the personal representative of the
Participant shall be entitled to receive an amount of cash determined in the
same manner and payable at the same time as if the Participant had withdrawn
from the Plan by giving notice of withdrawal effective as of the date such
termination occurs. Notwithstanding the foregoing, termination of employment by
one employer for the purpose of being re-employed immediately by the Company or
one of its Subsidiaries shall not be considered termination under this Paragraph
14. Any reference in this Plan to withdrawal by a Participant from the Plan
shall include termination as described in this Paragraph 14. In the event of the
termination of a Participant's employment pursuant to this Paragraph 14, the
Company shall notify the broker as soon as practicable and the Broker shall
maintain or close the Participant's Brokerage Account in accordance with the
procedures set forth in Paragraph 16.
15. Amendment, Suspension and Termination of the Plan. Plan may be
amended or terminated by the Board at any time and such amendment or termination
shall be communicated in writing to all Participants as soon as practicable
after the date of such Board action. If the Plan is terminated, each Participant
shall be entitled to receive as promptly as possible from the Company all
payroll deductions attributable to him or her which have not been used for
purchase of Common Stock pursuant to Paragraph 9 ("'Account Balance"), but he or
she shall not be entitled to the benefit
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<PAGE> 14
of any future Matching Contributions with respect to such deductions or interest
or otherwise for any past Offering Periods. In any event, this Plan shall
terminate 20 years from the date the Plan is adopted or the date the Plan is
approved by the stockholders, whichever is earlier. In the event that the
Company terminates the Plan pursuant to this Paragraph 15, the Broker shall
maintain or close the Participant's Brokerage Accounts in accordance with the
procedures set forth in Paragraph 16. Notwithstanding any other provision to the
contrary, any provision of this Plan may be amended by the Board or the
Committee as required to obtain necessary approvals of governmental agencies if
such cleanse does not materially alter the rights and interests of stockholders
of the Company. If there are any changes in the capitalization of the Company,
such as through mergers, consolidations, reorganizations, recapitalizations,
stock splits or stock dividends, appropriate adjustments will be made by the
Company in the number of shares of its Common Stock subject to purchase under
the Plan.
16. Disposition of Brokerage Account Following Withdrawal, Death,
Termination of Employment or Termination of Plan. As soon as practicable
following the notification of the withdrawal of a Participant front the Plan,
the notification of the termination of a Participant's employment with the
Company or a Subsidiary (which includes the death of the Participant) or of the
notification that the Plan is terminated pursuant to Paragraph 15 hereof, the
Broker shall notify the former Participant, or in the event of his death, his
designated beneficiary, if any, or if no designated beneficiary the estate of
the deceased Participant (collectively, an "Interested Party"), regarding the
disposition of the former Participant's or deceased Participant's Brokerage
Account. As soon as practicable following receipt of the notification set form
in the preceding sentence, the interested Party may request the Broker to
dispose of the other Participant's or deceased Participant's Brokerage Account,
at the Interested Party's expense, by any one of the following means:
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<PAGE> 15
(a) The Interested Party may request the Broker to
maintain the former Participant's or deceased Participant's Brokerage Account
for the benefit of the Interested Party or any other person. The Interested
Person shall be charged by the Broker for all maintenance fees and any and all
other fees in connection with the Brokerage Account.
(b) The Interested Party may request the Broker to sell
all of the full shares and fractional shares of Common Stock, if any, held in
the former Participant's or deceased Participant's Brokerage Account. Upon such
sale, the Broker will mail to the Interested Park a check for the proceeds, less
any applicable fees and brokerage commissions and any transfer taxes,
registration fees or other charges which shall be payable by the Interested
Party.
(c) The Interested Party may request the Broker to provide
a certificate for all of the full shares of Common Stock, if any, together with
a check in an amount equal to the proceeds of the sale any fractional shares of
Common Stock held in the former Participant's or deceased Participant's
Brokerage Account, less any applicable fees and brokerage commissions and any
transfer taxes, registration fees or other charges which are payable by the
Participant.
17. Broker. The Broker shall be Equitable Securities Corporation which
has agreed to act as Broker for such period as is determined by the Company.
Either the Company or the Broker may terminate such designation at any time upon
30 days' written notice. In the event of such termination of the Broker, the
Company may administer the Plan without the use of a Broker or may appoint a
successor Broker. Any successor Broker shall be vested with all the powers,
rights, duties and immunities of the Broker hereunder to the same extent as if
originally named as the Broker hereunder. The relationship between the Broker
and the Participant will be the normal relationship of a broker and its client,
and the Company assumes no responsibility in this respect.
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<PAGE> 16
18. Conditions to Issuance of Shares. Shares shall not be issued under
the Plan unless issuance and delivery of such shares pursuant to the Plan shall
comply with all applicable provisions of law, domestic or foreign, including,
without limitation, the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the rules and regulations promulgated
thereunder, the securities laws of the state in which any Employee resides, NASD
requirements and the requirements of any stock exchange upon which the Common
Stock may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance. By execution of the
Enrollment Form, the Participant covenants and agrees that all shares are being
purchased only for investment slid without any present intention to sell or
distribute such shares.
19. Notices.
19.1 To Company or Subsidiaries. Any notice hereunder to the
Company or to its Subsidiaries shall be in writing and such notice shall be
deemed made only when delivered or three days after being mailed by certified
mail, return receipt requested, to the Company's principal office at 1200 North
Harbor Boulevard, Anaheim, California 92801 or to such other address as the
Company may designate by notice to the Participants.
19.2 To Participant. Any notice to a Participant hereunder shall
be in writing and any such communication and any delivery to a Participant sill
be deemed made if mailed or delivered to the Participant at such address as the
Participant may have on file with the Company and with the Broker.
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<PAGE> 17
20. Miscellaneous.
20.1 No Limitation on Termination of Employment. Nothing in the
Plan shall in any manner be construed to limit in any way the right of the
Company or any of its Subsidiaries to terminate, in their discretion and at any
time, an Employee's employment, without regard to the effect of such termination
on any benefit or right such Employee might otherwise have or obtain under the
Plan, or give any right to an Employee to remain employed by the Company in any
particular position or at any particular rate of remuneration.
20.2 Liability. The Company, its Subsidiaries, any member of the
Board or Committee and any other person participating in any determination of
any question under the Plan, or in the interpretation, administration or
application of the Plan, shall have no liability to any party for any action
taken or not taken in good faith under the Plan, or based on or arising out of a
determination of any question under the Plan or an interpretation,
administration or application of the Plan made in good faith.
20.3 Captions. The captions of the paragraphs of this Plan are
for convenience only and shall not control or affect the meaning or construction
of any of its provisions.
20.4 Assignment. Any rights of Employees hereunder shall be
nonforfietable, and no Account Balance or contribution made by any employer may
revert or inure to the benefit of the Company or any Subsidiary, provided that
no Participant shall be entitled to sell, assign, pledge or hypothecate any
right or interest in his or her Account Balance.
20.5 Governing Law. Delaware law governs this Plan.
20.6 Severability. In case any provision of this Plan shall be
held illegal or invalid for any reason, said illegality or invalidity shall not
affect the remaining parts hereof, but this Plan shall be construed and enforced
as if such illegal and invalid provision had never been inserted herein.
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<PAGE> 18
20.7 Successors. The provisions of this plan shall bind and
insure to the benefit of the Company and its successors and assigns. The term
"successors" as used herein shall include any corporate or other business entity
which shall by merger, consolidation, purchase or otherwise acquire all or
substantially all of the business and assets of the Company, and successors of
any such corporation or other business entity.
20.8 Rights Not Qualified Under Internal Revenue Code. The rights
to purchase stock ("Options") that are granted under this Plan shall constitute
non-qualified stock options that are not intended to qualify under Section 423
of the Internal Revenue Code of 1986.
21. Effective Date of Plan. The Plan shall become effective upon the
first day of the next fiscal quarter after which the Board approves the subject
to ratification by the stockholders of the Company, and all necessary approvals
of governmental agencies have been received.
Chief Executive Officer
ATTEST:
__________, Secretary
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<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
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. appearing in Registration Statement No. 333-32249 on Form S-1 (the
"Initial Registration Statement") and the Prospectus, which is part of the
Initial Registration Statement, and to the reference to our firm under the
heading "Experts" in the Prospectus.
/s/ KPMG PEAT MARWICK LLP
Orange County, California
March 30, 1998
<PAGE> 2
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
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 appearing in Registration Statement No. 333-32249 on Form
S-1 (the "Initial Registration Statement") and the Prospectus, which is part of
the Initial Registration Statement, and to the reference to our firm under the
heading "Experts" in the Prospectus.
/s/ KPMG PEAT MARWICK LLP
Orange County, California
March 30, 1998
<PAGE> 3
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 appearing in Registration Statement No. 333-32249 on Form S-1 (the
"Initial Registration Statement") and the Prospectus, which is part of the
Initial Registration Statement, and to the reference to our firm under the
heading "Experts" in the Prospectus.
/s/ KPMG PEAT MARWICK LLP
Portland, Oregon
March 30, 1998
<PAGE> 4
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
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.
appearing in Registration Statement No. 333-32249 on Form S-1 (the "Initial
Registration Statement) and the Prospectus, which is part of the Initial
Registration Statement, and to the reference to our firm under the heading
"Experts" in the Prospectus.
/s/ KPMG PEAT MARWICK LLP
Orange County, California
March 30, 1998
