As filed with the Securities and Exchange Commission on September 25, 1995
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BAYPORT RESTAURANT GROUP, INC.
(Exact name of registrant as specified in its charter)
FLORIDA
(State or other jurisdiction of incorporation or organization)
59-1827599
(I.R.S. employer identification no.)
4000 HOLLYWOOD BOULEVARD, HOLLYWOOD, FLORIDA 33021
(Address of principal executive offices) (Zip code)
(a) Shares of Common Stock Issued
Upon the Exercise of Employee
Stock Options; and
(b) Shares Underlying Options
Granted to Key Employees,
Officers and Directors
(Full title of the Plan)
David J. Connor
Chief Executive Officer
Bayport Restaurant Group, Inc.
4000 Hollywood Boulevard
Hollywood, Florida 33021
(Name and address of agent for service)
(305) 967-6700
(Telephone number, including area code, of agent for service)
Copy to:
Philip B. Schwartz, P.A.
Broad and Cassel
Miami Center
201 South Biscayne Boulevard, Suite 3000
Miami, Florida 33131
Telephone: (304) 373-9437
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, check the following box: [X]
(CALCULATION OF REGISTRATION FEE IS ON THE NEXT PAGE)
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED SHARE(1) PRICE REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,844,750 $4.625 $8,531,969 $2,942
$.001 par value shares
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), based upon the average of the high and low bid
prices of the Company's Common Stock on September 21, 1995.
<PAGE>
BAYPORT RESTAURANT GROUP, INC.
CROSS-REFERENCE SHEET
Pursuant to Item 501(b) of Regulation S-K
Showing Location in the Prospectus of
Information Required by Items of Form S-3
Pursuant to General Instruction C of Form S-8
<TABLE>
<CAPTION>
REGISTRATION STATEMENT CAPTION OR
ITEM NUMBER AND CAPTION LOCATION IN PROSPECTUS
- ----------------------- ----------------------
<S> <C>
1. Forepart of Registration Statement and Front Cover Page
Outside Front Cover Page of Prospectus
2. Inside Front and Outside Back Cover Pages Inside Front and Outside Back Cover
of Prospectus Pages of Prospectus
3. Summary Information, Risk Factors and Prospectus Summary; Risk Factors
Ratio of Earnings to Fixed Charges
4. Use of Proceeds Use of Proceeds
5. Determination of Offering Price Not applicable
6. Dilution Not Applicable
7. Selling Security Holders Selling Shareholders
8. Plan of Distribution Front Cover Page; Description of
Securities to be Registered; Selling
Shareholders and Plan of Distribution
9. Description of Securities to be Registered Description of Securities to be
Registered
10. Interests of Named Experts and Counsel Legal Matters; Experts
11. Material Changes Not Applicable
12. Incorporation of Certain Information by Information Incorporated by Reference
Reference
13. Disclosure of Commission Position on Not Applicable
Indemnification for Securities Act
Liabilities
</TABLE>
(i)
<PAGE>
PROSPECTUS 1,844,750 SHARES
BAYPORT RESTAURANT GROUP, INC.
Bayport Restaurant Group, Inc., a Florida corporation (the "Company"), is
hereby registering for the account of certain selling shareholders (the "Selling
Shareholders") up to 1,844,750 shares (the "Shares") of its common stock, $.001
par value per share (the "Common Stock") for sale in the public marketplace. Of
these shares, 1,654,375 are issuable upon the exercise of outstanding stock
options (the "Options") held by certain officers, directors and employees of the
Company; and 190,375 were previously issued upon the exercise of stock options.
The Shares may be offered from time to time and at any time by the Selling
Shareholders on the over-the-counter market or otherwise at prices then
prevailing or in private sales at fees to be negotiated. See "Selling
Shareholders" and "Plan of Distribution."
All proceeds from any sale of the Shares will inure to the benefit of the
Selling Shareholders. The Company will not receive any of the proceeds from
sales of the Shares. The Company will, however, receive the proceeds from the
exercise of the Options. All expenses of registration incurred in connection
herewith are being borne by the Company, but all selling and other expenses
incurred by the Selling Shareholders, including brokers' commissions,
concessions or discounts, will be borne by the Selling Shareholders. See "Plan
of Distribution."
The Common Stock is listed on the National Association of Securities
Dealers, Inc. National Market System ("NASDAQ-NMS") under the symbol "PORT." On
September 21, 1995, the last sales price of the Common Stock was $4.625 per
share.
AN INVESTMENT IN THE SECURITIES OFFERED HEREBY INVOLVES A DEGREE OF
RISK. PROSPECTIVE INVESTORS SHOULD CONSIDER CAREFULLY THE DISCUSSION
UNDER "RISK FACTORS."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR ANY STATE SECURITIES ADMINISTRATOR, NOR HAS THE
COMMISSION OR ANY STATE SECURITIES ADMINISTRATOR PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date of this Prospectus is September 25, 1995
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports and other information with the Securities
and Exchange Commission (the "Commission"). Such reports and other information
can be inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C., and at its following
regional offices: 500 West Madison Street, Chicago, Illinois 60661, and 7 World
Trade Center, New York, New York 10048. Also, copies of such material can be
obtained at prescribed rates from the Public Reference Section of the Commission
at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549.
The Company has filed with the Commission a Registration Statement on
Form S-8 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Act"), with respect to the securities offered hereby. This
Prospectus does not contain all of the information set forth in the Registration
Statement and the exhibits thereto. For further information about the Company
and the securities offered hereby, reference is made to the Registration
Statement and to the exhibits filed as a part thereof. The statements contained
in this Prospectus as to the contents of any contract or other document
identified as exhibits in this Prospectus are not necessarily complete and, in
each instance, reference is made to a copy of such contract or document filed as
an exhibit to the Registration Statement, each statement being qualified in any
and all respects by such reference. The Registration Statement, including
exhibits, may be inspected without charge at the principal reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549,
and copies of all or any part thereof may be obtained upon payment of fees
prescribed by the Commission from the Public Reference Section of the Commission
at its principal office in Washington, D.C. set forth above.
All of the reports required to be filed by the Company with NASDAQ or
other information concerning the Company can be inspected at the office of the
National Association of Securities Dealers, Inc., 1735 K Street, N.W.,
Washington, D.C. 20006.
INFORMATION INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated in this Prospectus by reference:
(a) The Company's Annual Reports on Form 10-KSB for the years ended
December 26, 1994, and December 25, 1993;
(b) The Company's Quarterly Report on Form 10-QSB for the quarter
ended March 27, 1995;
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 26, 1995;
(d) The Company's Proxy Statement dated April 17, 1995, for use at
the Company's 1995 Annual Meeting of Shareholders; and
(e) Each document filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, subsequent to the date
of this Prospectus but prior to the termination of the offering
to which this Prospectus relates.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy of
any or all of the documents described above (other than exhibits to such
documents, unless such exhibits are specifically incorporated by reference in
this Prospectus). Requests for such copies should be directed to Ruth Stack,
Corporate Secretary, at the principal executive offices of the Company at 4000
Hollywood Boulevard, Hollywood, Florida 33021, telephone (305) 967-6700.
2
<PAGE>
PROSPECTUS SUMMARY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY THE DETAILED
INFORMATION AND FINANCIAL STATEMENTS (INCLUDING NOTES) APPEARING ELSEWHERE IN
THIS PROSPECTUS. UNLESS THE CONTEXT INDICATES OTHERWISE, THE "COMPANY" REFERS TO
BAYPORT RESTAURANT GROUP, INC., A FLORIDA CORPORATION, AND ITS SUBSIDIARIES.
UNLESS OTHERWISE SPECIFICALLY INDICATED, THE INFORMATION CONTAINED IN THIS
PROSPECTUS DOES NOT GIVE EFFECT TO THE EXERCISE OF ANY OUTSTANDING WARRANTS OR
OPTIONS TO PURCHASE SHARES OF COMMON STOCK. UNLESS OTHERWISE SPECIFICALLY
INDICATED, ALL REFERENCES HEREIN TO THE COMMON STOCK REFLECT A ONE-FOR-FOUR
REVERSE STOCK SPLIT EFFECTED BY THE COMPANY IN RESPECT OF ITS COMMON STOCK ON
AUGUST 18, 1993. INVESTORS SHOULD CAREFULLY CONSIDER THE INFORMATION SET FORTH
UNDER THE HEADING "RISK FACTORS."
THE COMPANY
The Company operates full service "Crab House" seafood restaurants and
"Capt. Crab's Take-Away" seafood restaurants. The Company also operates a
seafood processing facility that provides the Company's restaurants with crab
products and sells crab products on a wholesale basis.
At present, the Company operates 13 "Crab House" full service seafood
restaurants. The Company has leased sites and/or commenced construction on an
additional three "Crab House" restaurants, all of which are expected to be
opened by the end of 1995. The Company's current expansion plan also calls for
the opening of between seven and nine additional "Crab House" restaurants during
1996.
Of the Company's presently opened "Crab House" restaurants, seven are
located in Florida (Miami, Ft. Lauderdale, Boca Raton, Key West, Plantation and
Orlando), two are located in the Atlanta, Georgia area, two are located in
Myrtle Beach, South Carolina, one is located in Biloxi, Mississippi and one is
located in Chicago, Illinois. Of the three "Crab House" restaurants presently
under construction, one is located in Aventura, Florida, one is located in
Gulfport, Mississippi and one is located in New York (Manhattan). Three of the
Company's restaurants are or will be located in hotels (Key West, Biloxi, and
Gulfport). In these restaurants, in addition to operating the restaurant, the
Company also provides hotel food service and banquet operations.
The Company's "Crab House" restaurants serve a broad selection of crab,
shrimp and seafood-entrees. Each restaurant also features a distinctive seafood
salad bar. The restaurants range in size from approximately 4,000 square feet to
14,000 square feet and operate in both tourist and convention markets and
densely populated areas with upper middle income demographics.
At present the Company operates five "Capt. Crab's Take-Away"
restaurants, three in Florida and two (recently opened) in Maryland.
The Company's "Capt. Crab's Take-Away" restaurants feature garlic crabs,
steamed crabs and other seafood entrees served with a selection of side dishes.
The facilities each have a drive-thru pick up window. The Florida restaurants
are each approximately 1,500 to 2,000 square feet with little or no interior
seating. The two Maryland restaurants are approximately 3,000 square feet with
interior seating.
The Company's executive offices are located at 4000 Hollywood Boulevard,
Hollywood, Florida 33021. Its telephone number is (305) 967-6700.
3
<PAGE>
THE OFFERING
This Prospectus relates to the offering of up to 1,844,750 shares of
Common Stock. These shares of Common Stock consist of 1,654,375 shares issuable
upon the exercise of the Options and 190,375 shares previously issued upon the
exercise of stock options.
USE OF PROCEEDS
The Company will receive none of the proceeds from sales of the Shares
by the Selling Shareholders. Any proceeds received by the Company upon the
exercise of options will be used for working capital. See "Use of Proceeds."
COMMON STOCK OUTSTANDING
As of March 30, 1995, the Company has outstanding 9,474,667 shares of
Common Stock and 2,446,249 shares of Series B Convertible Preferred Stock. Each
share of Series B Convertible Preferred Stock is convertible into 1/4 of one
share of Common Stock (or into 611,562 shares of Common Stock in the aggregate).
Additionally, at that date, there were outstanding options and warrants to
purchase 2,799,836 shares of Common Stock (including the Options).
PLAN OF DISTRIBUTION
The distribution of the Shares by the Selling Shareholders may be
effected from time to time in one or more transactions (which may involve block
transactions) in the over-the-counter market, on the NASDAQ-NMS, or any exchange
on which the Common Stock may then be listed, in negotiated transactions,
through the writing of options on shares (whether such options are listed on an
options exchange or otherwise), or a combination of such methods of sale, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Selling Shareholders may
effect such transactions by selling shares to or through broker-dealers, and
such broker-dealers may receive compensation in the form of underwriting
discounts, concessions or commissions from the Selling Shareholders and/or
purchasers of shares for whom they may act as agent (which compensation may be
in excess of customary commissions).
The Selling Shareholders may also sell such shares pursuant to Rule 144
promulgated under the Act, or may pledge shares as collateral for margin
accounts and such shares could be resold pursuant to the terms of such accounts.
The Selling Shareholders and any broker-dealers that act in connection with the
sale of Common Stock might be deemed to be "underwriters" within the meaning of
Section 2(11) of the Act and any commissions received by them and any profit on
the resale of the shares might be deemed to be underwriting discounts or
commissions under the Act. The Selling Shareholders may agree to indemnify any
agent, dealer or broker-dealer that participates in transactions involving sales
of the Common Stock against certain liabilities, including liabilities arising
under the Act.
4
<PAGE>
SUMMARY FINANCIAL DATA
THE SUMMARY FINANCIAL DATA SET FORTH BELOW IS DERIVED FROM THE AUDITED
FINANCIAL STATEMENTS FOR EACH OF THE TWO YEARS ENDED DECEMBER 1994 AND 1993,
THE UNAUDITED FINANCIAL STATEMENTS FOR THE YEAR ENDED DECEMBER 31, 1992 AND
UNAUDITED STATEMENTS FOR EACH OF THE SIX MONTHS ENDED JUNE 1995 AND 1994,
INCORPORATED BY REFERENCE INTO THIS PROSPECTUS. SUCH INFORMATION SHOULD BE
READ IN CONJUNCTION WITH THE COMPANY'S FINANCIAL STATEMENTS INCLUDING THE NOTES
THERETO.
<TABLE>
<CAPTION>
STATEMENT OF INCOME DATA
SIX MONTHS
ENDED JUNE, YEARS ENDED DECEMBER,
---------------- ---------------------
1995 1994 1994 1993 1992
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
REVENUES
Restaurant sales $22,306,414 $17,165,918 $33,735,307 $23,799,997 $18,240,992
Processing plant sales 3,401,041 1,684,972 4,511,097 2,625,961 1,859,063
Interest and other 55,790 190,741 243,740 568,457 732,843
----------- ---------- ----------- ----------- -----------
Total Revenues 25,763,245 19,041,631 38,490,144 26,994,415 20,832,898
COSTS AND EXPENSES
Cost of sales 7,817,352 6,012,497 12,150,640 8,299,384 6,354,837
Payroll and related expenses 5,272,595 4,136,720 8,269,479 5,997,628 4,619,087
Other operating expenses 3,392,422 2,730,298 5,596,002 4,122,028 3,177,090
Occupancy and related expenses 1,805,006 1,419,177 2,739,770 2,096,768 1,589,848
Processing plant cost of sales and
operating expenses 3,633,109 1,690,291 4,444,153 2,625,038 1,820,063
Restaurant opening expenses 215,710 90,102 286,635 80,794 25,000
General and administrative 2,109,211 1,737,700 3,381,316 2,295,134 1,930,398
Interest expense - 68,035 39,861 212,512 266,795
Net loss on investment securities - - 248,768 - -
----------- ---------- ----------- ----------- -----------
Total costs and expenses 24,245,405 17,884,820 37,156,624 25,729,286 19,783,118
Income from operations 1,517,840 1,156,811 1,333,520 1,265,129 1,049,780
Provision for income taxes (516,066) (323,907) (393,695) - -
Minority interest in net
earnings of subsidiary - - - (121,765) (175,921)
Cumulative effect of accounting
change - - - 223,295 -
----------- ---------- ----------- ----------- -----------
Net earnings $ 1,001,774 $ 832,904 $ 939,825 $ 1,366,659 $ 873,859
=========== =========== =========== =========== ===========
Net income per Common Share $ .10 $ .08 $ .09 $ .18 $ .17
=========== =========== =========== =========== ===========
Weighted Average Shares
Outstanding 10,387,899 10,440,448 10,434,240 7,427,614 5,159,516
========== ========== ========== ========== ===========
</TABLE>
<TABLE>
<CAPTION>
BALANCE SHEET DATA
JUNE 26, 1995 DECEMBER 26, 1994
------------- -----------------
<S> <C> <C>
Working capital $5,473,798 $8,080,942
Current Assets 9,986,770 10,715,075
Total assets 35,625,278 28,526,198
Current liabilities 4,512,972 2,634,133
Long Term Liabilities 8,454,732 4,778,228
Stockholders' equity 22,069,458 21,006,587
</TABLE>
5
<PAGE>
RISK FACTORS
INVESTMENT IN THE SECURITIES OFFERED HEREBY INVOLVES A DEGREE OF RISK
AND SHOULD BE REGARDED AS SPECULATIVE. IT IS IMPOSSIBLE TO FORESEE AND DESCRIBE
ALL THE RISKS AND BUSINESS, ECONOMIC AND FINANCIAL FACTORS WHICH MAY AFFECT THE
COMPANY. PROSPECTIVE INVESTORS SHOULD CAREFULLY CONSIDER, IN ADDITION TO MATTERS
SET FORTH ELSEWHERE IN THIS PROSPECTUS, THE FOLLOWING FACTORS BEFORE INVESTING
IN THE SECURITIES.
EXPANSION PLANS. The Company is pursuing an aggressive growth strategy
and its success is dependent upon its ability to open and operate new
restaurants on a profitable basis, particularly in new markets, and to manage
effectively the resulting larger business. In order to meet its expansion goals,
the Company must be able to locate and acquire attractive restaurant sites,
attract and retain competent personnel and open new restaurants on a timely and
cost-efficient basis. There can be no assurance that the Company's expansion
program will be successful.
DEPENDENCE ON SITE SELECTION. The Company believes that site selection
is critical to the success of its restaurant expansion plans. There can be no
assurance that the Company will be able to locate and acquire attractive sites
to meet its expansion goals.
CAPITAL REQUIREMENTS FOR EXPANSION PROGRAM. To date, the Company's
expansion program has been funded from the proceeds of a private placement
completed in 1993 and from existing bank lines of credit. The Company believes
that it can open all of the restaurants scheduled to be opened during 1995 and
several of the restaurants scheduled to be opened during 1996 without additional
financing. However, in order to complete its 1996 expansion program, and
continue expansion of the Company's restaurant chain during periods beyond 1996,
the Company will require additional capital. The Company intends to seek to
raise additional capital during the first half of 1996. While the Company
anticipates that it will be able to raise the capital required to continue its
expansion program during future periods, there can be no assurance of this fact.
To date, no commitments for funding have been received by the Company.
LIMITED NUMBER OF RESTAURANTS IN OPERATION; GEOGRAPHIC CONCENTRATION.
There are currently 13 full-service "Crab House" restaurants and five "Capt.
Crab's Take-Away" restaurants in operation. Of the existing restaurants, ten are
located in Florida. Consequently, the results achieved to date by the Company's
restaurants may not be indicative of the prospects or market acceptance of a
larger number of restaurants, particularly in wider and more geographically
dispersed areas with varied demographic characteristics. In addition, because of
the Company's relatively small restaurant base, an unsuccessful new restaurant
could have a more significant effect on the Company's results of operations than
would be the case in a larger restaurant chain.
SEAFOOD MENU; UNCERTAINTY OF MARKET ACCEPTANCE. The Company's
restaurants have an extensive menu comprised primarily of seafood items. There
can be no assurance that the Company's concept will achieve significant market
acceptance in new markets. Moreover, a decline in the sale of seafood products
due to industry trends, change in consumer preferences, increased prices or
other reasons, could adversely impact the Company.
6
<PAGE>
COMPETITION IN THE RESTAURANT INDUSTRY. The restaurant industry is
highly competitive and the Company competes with numerous other restaurants and
food service operations, many of which have greater financial resources and more
experienced personnel than the Company and many of which are better established
in the markets where the Company's restaurants are to be located. In addition,
the restaurant industry can be significantly affected by many factors, including
changes in local, regional or national economic conditions, changes in consumer
tastes, consumer concerns about the nutritional quality of food and increases in
the number of, and particular locations of, competing restaurants. Factors such
as inflation, increases in food, labor and energy costs and the availability of
an adequate number of hourly-paid employees also affect the restaurant industry
generally and the Company's restaurants in particular. There can be no assurance
that the Company can compete successfully in any given market or overall with
its competitors.
DEPENDENCE UPON KEY AND OTHER PERSONNEL. The success of the Company
will be highly dependent on the efforts of its key personnel, including David J.
Connor, its Vice Chairman and Chief Executive Officer, and William D. Korenbaum,
its President and Chief Operating Officer. In order to implement successfully
its proposed expansion and manage anticipated growth, the Company will be
dependent upon its ability to retain existing and hire additional qualified
personnel. Competition for such personnel is intense and, accordingly, there can
be no assurance that the Company will be able to retain or hire necessary
personnel. The Company will also be dependent on its ability to hire and train a
significant number of hourly employees. While the Company has never experienced
a problem in hiring hourly restaurant personnel, there can be no assurance that
such a problem will not arise in the future and, in such event, a shortage of
hourly restaurant personnel could have an adverse effect on the Company.
GOVERNMENT REGULATION. The restaurant business is subject to extensive
federal, state and local regulation relating to the development and operation of
restaurants, including regulations relating to building and zoning requirements,
preparation and sale of food, and laws governing the Company's relationship with
its employees, including minimum wage requirements, unemployment taxes and sales
taxes, overtime and working conditions and citizenship requirements. The failure
to obtain or retain required licenses, or a substantial increase in the minimum
wage rate, could adversely affect the operations of the Company's restaurants.
NO DIVIDENDS ANTICIPATED. The Company has not paid any cash dividends
on its Common Stock and does not anticipate paying dividends on its shares in
the foreseeable future, inasmuch as it expects to employ all available cash in
the growth of its business.
CERTAIN PROVISIONS IN THE ARTICLES OF INCORPORATION. The Company's
Articles of Incorporation include provisions designed to discourage attempts by
others to acquire control of the Company without negotiation with the Board, and
to attempt to insure that such transactions are on terms favorable to all of the
Company's shareholders. For various reasons, however, these provisions may not
always be in the best interest of the Company or its shareholders. Further, the
Company's By-laws include provisions which are intended to provide for
limitation of liabilities of officers and directors in certain circumstances and
for indemnification of officers and directors against certain liabilities.
POTENTIAL FUTURE RULE 144 SALES. There are approximately 1,400,000
shares of "restricted" Common Stock outstanding. Significantly all of these
shares may be sold under Rule 144 under the Act.
7
<PAGE>
Under Rule 144, a person who has held "restricted securities" for a period of
two years may sell a limited number of such shares in the public market. Sales
made pursuant to Rule 144 by the Company's existing shareholders may have a
depressive effect on the price of the shares of Common Stock in the public
market. Such sales could also adversely affect the Company's ability to raise
capital at that time through the sale of its equity securities.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Shares offered by the Selling Shareholders. Any net proceeds received by the
Company upon the exercise of the Options will be used for working capital.
See "Description of Securities."
DESCRIPTION OF SECURITIES TO BE REGISTERED
The securities being registered for sale in the public market are: (i)
shares of Common Stock which were previously issued to certain of the Selling
Shareholders upon the exercise of outstanding stock options; and (ii) shares of
Common Stock issuable to certain of the Selling Shareholders upon the exercise
of the Options. The Options were granted under the Company's: (i) 1985 Stock
Option Plan; (ii) 1993 Stock Option Plan; (iii) 1995 Stock Option Plan; and (iv)
outside of any stock option plan.
8
<PAGE>
SELLING SHAREHOLDERS
Resales and reoffers of the Shares registered hereby must be
accompanied by a copy of this Prospectus, in the case of persons who may be
deemed to be "affiliates" within the meaning of Rule 405 promulgated under the
Act, or must be effected through an exemption from registration, such as
pursuant to Rule 144. Rule 405 effectively defines affiliates as persons who
"directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with" the Company. This includes
directors, officers, and significant (5% or greater) shareholders.
Non-affiliates may freely resell and reoffer their shares of the Common Stock to
the public.
The shares of Common Stock being registered for sale by the Selling
Shareholders who are "affiliates" of the Company are set forth below. This
Prospectus will be supplemented to reflect additional options granted to
"affiliates" in the future, the shares issuable upon exercise thereof of which
are registered hereunder.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY SHARES BENEFICIALLY
OWNED BEFORE OFFERING OWNED AFTER OFFERING
------------------------ ---------------------
NAME NUMBER PERCENT(1) SHARES OFFERED NUMBER PERCENT(1)
- ---- ------ ---------- -------------- ------ ----------
<S> <C> <C> <C> <C> <C>
Arthur H. Kaplan(2) 552,361 5.4 71,500 480,861 4.7
David J. Connor(3) 812,311 7.5 668,750(4) 143,561 1.3
William D. Korenbaum(5) 825,000 7.7 706,250(6) 118,750 1.1
Aloysius D. Rossi(7) 154,066 1.5 20,000 134,066 1.3
Martin Rudolph(8) 99,783 * 21,500 78,283 *
Albert A. Clapps(9) 147,033 1.4 20,000 127,033 1.3
Robert Stetson(10) 30,625 * 15,000 15,625 *
Thomas R. Hitchner(11) 25,480 * 12,500 12,980 *
Dennis Snuszka(12) 149,250 1.0 149,250(13) 0 *
Anne Catz(14) 27,563 * 26,250(15) 1,313 *
Ruth Stack(16) 26,312 * 25,000(17) 1,312 *
Paul Seidman(18) 40,840 * 38,750 2,100 *
Mike Flanagan(19) 7,500 * 7,500 0 *
Vance Roper(19) 7,500 * 7,500 0 *
Dave Kirincic(19) 7,500 * 7,500 0 *
Robert Stryker(20) 47,500 * 47,500 0 *
----------
1,844,750
==========
</TABLE>
- -------------------------
* Less than one percent.
9
<PAGE>
(1) Based upon 10,086,229 shares outstanding, plus as to each person, the
exercise of other options, whether or not presently vested.
(2) Includes: (i) 295,236 shares beneficially owned by the Hirsh Family
Trust (Mr. Kaplan serves as one of three trustees of the Trust and, as
such, under federal securities laws shares the power to vote and dispose
of the securities held by the Trust. Mr. Kaplan otherwise disclaims
beneficial ownership over securities owned by the Trust); (ii) 71,500
shares which may be acquired on the exercise of outstanding options, of
which 49,000 are presently exercisable or to become exercisable within
60 days after the date hereof; (iii) 16,875 shares owned by Astor Weiss,
Kaplan & Rosenblum (Mr. Kaplan is a partner in Astor, Weiss, Kaplan &
Rosenblum); (iv) 39,375 shares owned by Arthur Kaplan, as Trustee for
Alexander Kaplan; and (v) 39,375 shares owned by Arthur Kaplan, as
Trustee for Max Kaplan. Mr. Kaplan may be deemed to be the beneficial
owner of the securities described in (iii), (iv) and (v) above by virtue
of his power to vote and dispose of these securities. Otherwise, except
to the extent of his interest in Astor, Weiss, Kaplan & Rosenblum, Mr.
Kaplan disclaims beneficial ownership of all of these securities. Mr.
Kaplan is a director of the Company.
(3) Includes 653,750 shares underlying presently outstanding options,
253,750 of which may be acquired upon the exercise of currently
exercisable options or upon the exercise of options which will become
exercisable within the next 60 days. Mr. Connor is Chairman and Chief
Executive Officer of the Company.
(4) Includes 15,000 shares which were previously issued upon the exercise
of stock options and 653,750 shares underlying presently outstanding
stock options.
(5) Includes 581,250 shares underlying presently outstanding options,
221,250 shares of which may be acquired upon the exercise of currently
exercisable options or upon the exercise of options which will become
exercisable within the next 60 days. Mr. Korenbaum is President and the
Chief Operating and Financial Officer of the Company, and a member of
the Company's Board of Directors.
(6) Includes 125,000 shares which were previously issued upon the exercise
of options and 581,250 shares underlying presently outstanding options.
(7) Includes 20,000 shares underlying outstanding stock options, 15,500 of
which may be acquired upon the exercise of currently exercisable options
or options which will become exercisable within the next 60 days.
Mr. Rossi is a director of the Company.
(8) Includes: (i) 78,283 shares owned by Hickory Road Investment Corporation
("Hickory Road"). Hickory Road is 50% owned by Mr. Rudolph. Mr. Rudolph
is also an officer and director of Hickory Road; and (ii) 21,500 shares
underlying outstanding stock options, 17,000 of which may be acquired
upon the exercise of currently exercisable options or upon the exercise
of options which will become exercisable within 60 days of the date
hereof. Mr. Rudolph is a director of the Company.
(9) Includes 20,000 shares underlying outstanding stock options, 15,500 of
which may be acquired upon the exercise of currently exercisable options
or upon the exercise of options which will become exercisable within the
next 60 days. Mr. Clapps is a director of the Company.
(10) Includes 15,000 shares underlying outstanding stock options, 9,000 of
which may be acquired upon the exercise of currently exercisable options
or upon the exercise of options which will become exercisable within the
next 60 days. Mr. Stetson is a director of the Company.
(11) Includes 12,500 shares underlying outstanding stock options, 6,500 of
which may be acquired upon the exercise of currently exercisable options
or upon the exercise of options which will become exercisable within the
next 60 days. Mr. Hitchner is a director of the Company.
10
<PAGE>
(12) Includes 87,500 shares underlying presently outstanding options, 37,500
shares of which may be acquired upon the exercise of currently
exercisable options or upon the exercise of options which will become
exercisable within the next 60 days. Mr. Snuszka is Executive Vice
President - Operations of the Company.
(13) Includes 61,750 shares which were previously issued upon the exercise
of stock options and 87,500 shares underlying presently outstanding
stock options.
(14) Includes 22,500 shares underlying presently outstanding options, 2,500
of which may be acquired upon the exercise of currently exercisable
options or upon the exercise of options which will become exercisable
within the next 60 days. Ms. Katz is Vice President - Marketing of the
Company.
(15) Includes 3,750 shares which were previously issued upon the exercise
of stock options and 22,500 shares underlying presently outstanding
stock options.
(16) Includes 17,500 shares underlying presently outstanding options, 5,000
of which may be acquired upon the exercise of currently exercisable
options or upon the exercise of options which become exercisable within
the next 60 days. Ms. Stack is the Secretary of the Company.
(17) Includes 7,500 shares which were previously issued upon the exercise
of stock options and 7,500 shares underlying presently outstanding stock
options.
(18) Includes 38,750 shares issuable upon the exercise of outstanding stock
options. Mr. Seidman is a Vice President of the Company.
(19) Shares were previously issued upon the exercise of stock options.
(20) Includes 47,500 shares underlying presently outstanding stock options,
8,000 of which may be acquired upon the exercise of currently
exercisable options or upon the exercise of options which will become
exercisable within the next 60 days.
11
<PAGE>
PLAN OF DISTRIBUTION
The distribution of the shares of Common Stock by the Selling
Shareholders may be effected from time to time in one or more transactions
(which may involve block transactions) in the over-the-counter market or on the
NASDAQ system (or any exchange on which the Common Stock may then be listed) in
negotiated transactions, through the writing of options (whether such options
are listed on an Options exchange or otherwise), or a combination of such
methods of sale, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. The Selling
Shareholders may effect such transactions by selling shares to or through
broker-dealers, and such broker-dealer may receive compensation in the form of
underwriting discounts, concessions or commissions from the Selling Shareholders
and/or purchasers of shares for whom they may act as agent. The Selling
Shareholders may also sell such shares pursuant to Rule 144 promulgated under
the Act, or may pledge the shares as collateral for margin accounts and such
shares could be resold pursuant to the terms of such accounts. The Selling
Shareholders and any broker-dealers that act in connection with the sale of the
Common Stock might be deemed to be "underwriters" within the meaning of Section
2(11) of the Act and any commission received by them and any profit on the
resale of the shares of Common Stock as principal might be deemed to be
underwriting discounts and commissions under the Act. The Selling Shareholders
may agree to indemnify any agent, dealer or broker-dealer that participates in
transactions involving sales of the Common Stock against certain liabilities,
including liabilities arising under the Act.
Because the Selling Shareholders may be deemed to be "underwriters"
within the meaning of Section 2(11) of the Act, the Selling Shareholders will be
subject to prospectus delivery requirements under the Act. Furthermore, in the
event of a "distribution" of the shares, such Selling Shareholders, any selling
broker or dealer and any "affiliated purchasers" may be subject to Rule 10b-6
under the Exchange Act, which Rule would prohibit, with certain exceptions, any
such person from bidding for or purchasing any security which is the subject of
such distribution until his participation in that distribution is completed. In
addition, Rule 10b-7 under the Exchange Act prohibits any "stabilizing bid" or
"stabilizing purchase" for the purpose of pegging, fixing or stabilizing the
price of Common Stock in connection with this offering.
In order to comply with certain state securities laws, if applicable,
the Common Stock will not be sold in a particular state unless such securities
have been registered or qualified for sale in such state or any exemption from
registration or qualification is available and complied with.
The Company will not receive any of the proceeds from the sale of
shares of Common Stock by the Selling Shareholders. The proceeds, if any, from
the exercise of the Options will be received by the Company; no brokerage
commissions or discounts will be paid in connection therewith.
LEGAL MATTERS
Broad and Cassel, a partnership including professional associations,
Miami, Florida, has acted as counsel to the Company in connection with this
offering, and has rendered an opinion as to the legality of the securities being
offered hereby.
12
<PAGE>
EXPERTS
The financial statements for the fiscal years ended December 1994 and
1993 and for each of the three years in the period ended December 26, 1994
included in this Prospectus have been so included in reliance on the report of
Grant Thornton LLP, independent certified public accountants, given the
authority of said firm as experts in auditing and accounting.
13
<PAGE>
No person has been authorized in connection with this offering to give
any information or to make any representation not contained in this Prospectus
and, if given or made, such information or representation must not be relied
upon as having been authorized by the Company. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create
any implication that the information herein is correct as of any time subsequent
to the date of or that there has been no change in the affairs of the Company
since such date. This Prospectus does not constitute an offer or solicitation in
any state or other jurisdiction to any person to whom it is unlawful to make
such offer or solicitation in such state or jurisdiction.
TABLE OF CONTENTS
PAGE
Available Information....................................................... 2
Information Incorporated by Reference....................................... 2
Prospectus Summary.......................................................... 3
Risk Factors................................................................ 6
Use of Proceeds............................................................. 8
Description of Securities
to be Registered......................................................... 8
Selling Shareholders........................................................ 9
Plan of Distribution........................................................12
Legal Matters...............................................................12
Experts.....................................................................13
1,844,750 SHARES
BAYPORT
RESTAURANT GROUP, INC.
Common Stock
----------
PROSPECTUS
----------
SEPTEMBER 25, 1995
<PAGE>
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
See "Information Incorporated by Reference" in the Prospectus.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's By-laws, as amended, contain a provision that would
limit the scope of personal liability of directors for monetary damages for
breach of certain duties. The provision is consistent with Section 607.0831 of
the Florida Business Corporations Act which, among other reasons, is designed to
encourage qualified individuals to serve as directors of Florida corporations by
permitting a Florida corporation to limit director's liability for monetary
damages for breach of duty of care.
The indemnification provision in the Company's By-laws, as amended,
is intended to protect the Company's directors against personal liability for
breaches of their duty of care in certain circumstances. The provisions of the
By-laws would absolve directors of liability for negligence in the performance
of their duties, excluding gross negligence, breach of duty of loyalty to the
corporation and shareholders and violations of Section 607.0831 of the Florida
Business Corporations Act. Section 607.0831 provides that directors are
personally liable for unlawful dividends or unlawful stock repurchases or
redemptions. Further, the provision in the Company's By-laws would not limit or
eliminate liability of directors arising in connection with causes of action
brought under federal securities laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
5 Opinion of Broad and Cassel.
23.1 Consent of Grant Thornton LLP.
23.2 Consent of Broad and Cassel (included in Exhibit 5).
II-1
<PAGE>
ITEM 9. UNDERTAKINGS.
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed or any material change to such information in the registration
statement.
(2) That for the purpose of determining liability under the
Securities Act of 1933, to treat each such post-effective amendment as a new
registration statement relating to the securities offered, and to treat the
offering of the securities at that time as the initial BONA FIDE offering
thereof.
(3) To file a post-effective amendment to remove from registration
any of the securities which remain unsold at the termination of the offering.
(4) That, for the purposes of determining any liability under the
Securities Act of 1933, each filing of the Company's annual report pursuant to
section 13(a) or 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. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-2
<PAGE>
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 Hollywood, State of Florida, on this 31st day of
August, 1995.
BAYPORT RESTAURANT GROUP, INC.
By: /S/ DAVID J. CONNOR
-----------------------------------
David J. Connor, Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/S/DAVID J. CONNOR Chairman and August 31, 1995
- ---------------------------------------- Chief Executive Officer
David J. Connor
/S/WILLIAM D. KORENBAUM President and Chief Operating and August 31, 1995
- ---------------------------------------- Financial Officer and Director
William D. Korenbaum
/S/DAVID KIRINCIC Controller and Chief Accounting Officer August 31, 1995
- ----------------------------------------
David Kirincic
/S/ALBERT A. CLAPPS Director August 31, 1995
- ----------------------------------------
Albert A. Clapps
/S/ARTHUR H. KAPLAN Director August 31, 1995
- ----------------------------------------
Arthur H. Kaplan
/S/ALOYSIUS D. ROSSI Director August 31, 1995
- ----------------------------------------
Aloysius D. Rossi
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/S/MARTIN RUDOLPH Director August 31, 1995
- ----------------------------------------
Martin Rudolph
THOMAS HITCHNER Director August 31, 1995
- ----------------------------------------
Thomas Hitchner
/S/ROBERT STETSON Director August 31, 1995
- ----------------------------------------
Robert Stetson
</TABLE>
II-4
BROAD AND CASSEL
ATTORNEYS AT LAW
SUITE 3000
MIAMI CENTER
201 South Biscayne Boulevard
MIAMI, FLORIDA 33131
(305) 373-9400
FAX (305) 373-9443
-------
Writer's Direct Line: 373-9400
September 13, 1995
Bayport Restaurant Group, Inc.
4000 Hollywood Boulevard
Hollywood, Florida 33021
RE: BAYPORT RESTAURANT GROUP, INC. (THE "COMPANY")
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
You have requested our opinion with respect to (i) shares of the
Company's common stock, $.001 par value per share ("Common Stock") issuable upon
the exercise of outstanding stock options held by certain officers, directors
and employees of the Company (the "Shares"); and (ii) shares of Common Stock
issued upon the exercise of previously outstanding options included, in the
Company's registration statement on Form S-8 (the "Registration Statement"),
which is being filed with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended (the "Act").
As counsel to the Company, we have examined the original or certified
copies of such records of the Company and such agreements, certificates of
public officials, certificates of officers or representatives of the Company and
others, and such other documents as we deem relevant and necessary for the
opinion expressed in this letter. In such examination, we have assumed the
genuineness of all signatures on original documents and the conformity to
original documents of all copies submitted to us as conformed or photostatic
copies. As to various questions of fact material to such opinion, we have relied
upon statements or certificates of officials and representatives of the Company
and others.
Based upon and subject to the foregoing, we are of the opinion that:
<PAGE>
The shares of the Company's Common Stock that have been
previously issued upon exercise of outstanding options in
accordance with the terms thereof and against delivery of
adequate consideration therefor were duly authorized, fully
paid and non-assessable. When the Registration Statement
becomes effective under the Act, and when the Shares are
issued against delivery of adequate consideration therefor,
the Shares will be validly issued, fully paid and
non-assessable.
In rendering this opinion, we advise you that members of this Firm are
members of the Bar of the State of Florida, and we express no opinion herein
concerning the applicability or effect of any laws of any other jurisdiction,
except the securities laws of the United States of America referred to herein.
This opinion has been prepared and is to be construed in accordance
with the Report on Standards for Florida Opinions, dated April 8, 1991, issued
by the Business Law Section of the Florida Bar (the "Report"). The Report is
incorporated by reference into this opinion.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. We also consent to the use of our name under "Legal
Matters" in the Prospectus constituting part of the Registration Statement. In
giving such consent, we do not thereby admit that we are included within the
category of persons whose consent is required under Section 7 of the Act or the
rules and regulations promulgated thereunder.
Very truly yours,
/s/ BROAD AND CASSEL
BROAD AND CASSEL
BROAD AND CASSEL
We have issued our report dated March 10, 1995, accompanying the consolidated
financial statements of Bayport Restaurant Group, Inc. and Subsidiaries included
in the Annual Report on Form 10-KSB for the years ended December 26, 1994 and
December 27, 1993 which are incorporated by reference in this Registration
Statement. We consent to the incorporation by reference in the Registration
Statement of the aforementioned report and to the use of our name as it appears
under the caption "Experts."
Grant Thornton LLP
Miami, Florida
September 20, 1995
