June 29, 1998
Securities and Exchange Commission
450 Fifth Street N.W.
Washington, D.C. 20549
Re: Buffets, Inc.
Ladies and Gentlemen:
On behalf of Buffets, Inc., a Minnesota corporation (the "Company"), we
hereby transmit for filing, pursuant to the Electronic Data Gathering, Analysis
and Retrieval System, a copy of the Company's Amendment No.1 to its Registration
Statement on Form S-8 relating to its 1995 Stock Option Plan and Non-Employee
Director Stock Option Plan.
Very truly yours,
/s/ Michael A. Stanchfield
Michael A. Stanchfield
<PAGE>
As filed with the Securities and Exchange Commission on June 29, 1998
Registration No. 333-57007______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO.1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
- --------------------------------------------------------------------------------
BUFFETS, INC.
(Exact name of registrant as specified in its charter)
Minnesota 41-1462294
(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10260 Viking Drive 55344
Eden Prairie, Minnesota (Zip Code)
(Address of Principal Executive Offices)
Buffets, Inc.
1995 Stock Option Plan and
Non-Employee Director Stock Option Plan
- --------------------------------------------------------------------------------
(Full title of the plans)
Roe H. Hatlen, Chairman Copy to:
Buffets, Inc. Douglas P. Long
10260 Viking Drive Faegre & Benson LLP
Eden Prairie, MN 55344 2200 Norwest Center
(Name and address of 90 South Seventh Street
agent for service) Minneapolis, MN 55402
(612) 942-9760
(Telephone number, including area code, of agent for service)
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are incorporated by reference in this Registration Statement
the contents of the registrant's Registration Statement No. 333-01191.
The following documents previously filed with the Securities and
Exchange Commission (the "Commission") under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), are, as of their respective dates,
incorporated by reference in this Registration Statement:
(a) The Annual Report on Form 10-K of Buffets, Inc. (the "Company") for
the fiscal year ended December 31, 1997 (which incorporates by reference certain
portions of the Company's 1997 Annual Report to Shareholders, including
financial statements and accompanying information, and certain portions of the
Company's definitive proxy statement for its 1998 Annual Meeting of
Shareholders);
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Annual Report on
Form 10-K referred to in (a) above; and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A dated March 27, 1986 and Amendment
No. 1 thereto dated May 11, 1992, and the Company's Registration Statement on
Form 8-A dated October 30, 1995, which contains a description of the related
Rights to Purchase Preferred Shares, together with any amendments or reports
filed for the purpose of updating those descriptions.
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and before the filing of a post-effective amendment that
indicates that all shares of Common Stock offered have been sold or which
deregisters all shares of Common Stock then remaining unsold, shall be deemed to
be incorporated by reference in, and to be a part of, this Registration
Statement from the date of filing of those documents.
Any statement contained in a document incorporated, or deemed to be
incorporated, by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or incorporated herein by reference or in any other
subsequently filed document that is or is deemed to be incorporated by reference
herein modifies or supersedes that statement. Any 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.
Section 4.01 of the Company's Restated By-Laws provides that the
Company shall indemnify its directors and officers to the full extent required
or permitted by Minnesota Statutes or by other provisions of law. Section
302A.521 of the Minnesota Statutes provides in substance that, unless prohibited
or limited by its articles of incorporation or by-laws, a corporation must
indemnify an officer or director who is made or threatened to be made a party to
a proceeding by reason of his or her capacity as an officer or director against
judgments, penalties, fines,
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settlements and reasonable expenses, including attorneys' fees and
disbursements, incurred by such person in connection with the proceeding, if
certain criteria are met. These criteria, all of which must be met by the person
seeking indemnification, are: (a) that such person has not been indemnified by
another organization for the same judgments, penalties, fines, settlements and
expenses; (b) that such person must have acted in good faith; (c) that no
improper personal benefit was obtained by such person and that, if applicable,
certain statutory conflict of interest provisions have been satisfied; (d) that,
in the case of a criminal proceeding, such person had no reasonable cause to
believe that the conduct was unlawful; and (e) that such person acted in a
manner he or she reasonably believed was in the best interests of the
corporation or, in certain limited circumstances, not opposed to the best
interests of the corporation. The determination as to eligibility for
indemnification is made by the members of the corporation's board of directors,
or a committee thereof, who are at the time not parties to the proceedings under
consideration, by special legal counsel, by the shareholders who are not parties
to the proceedings or by a court.
Article VIII of the Company's Amended and Restated Articles of
Incorporation provides that a director shall not be liable to the Company or its
shareholders for monetary damages for breach of fiduciary duty as director,
except: (i) for any breach of the director's duty of loyalty to the Company or
its shareholders; (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) for dividends, stock
repurchases and other distributions made in violation of Minnesota law or for
violations of the Minnesota securities laws; (iv) for any transaction from which
the director derived an improper personal benefit; or (v) for any act or
omission occurring prior to the effective date of the provision in the Company's
Amended and Restated Articles of Incorporation limiting such liability. Article
VIII does not affect the availability of equitable remedies, such as an action
to enjoin or rescind a transaction involving a breach of fiduciary duty,
although, as a practical matter, equitable relief may not be available. Article
VIII also does not limit the liability of directors for violations of, or
relieve them from the necessity of complying with, the federal securities laws.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit
4.1 Composite Amended and Restated Articles of Incorporation
of the Company (incorporated by reference to Exhibit 4.1
to the Company's Registration Statement on Form S-3,
Registration No. 33-63694).
4.2 By-Laws of the Company (incorporated by reference to
Exhibit 3(b) to the Company's Annual Report on Form 10-K
for the fiscal year ended December 29, 1993).
4.3 Form of Rights Agreement, dated as of October 24, 1995,
by and between the Company and American Stock Transfer
and Trust Company (incorporated by reference to Exhibit 1
to the Company's Current Report on Form 8-K dated October
24, 1995).
4.4 Indenture dated as of November 27, 1995 related to 7%
Convertible Subordinated Notes of HomeTown Buffet, Inc.
due December 1, 2002 (incorporated by reference to
Exhibit 4.6 to the Company's Registration Statement on
Form 8-A, dated November 8, 1996).
4.5 First Supplemental Indenture dated as of September 20,
1996 among the Company, HomeTown and Wells Fargo Bank,
N.A. (incorporated by reference to Exhibit 4.7 to the
Company's Registration Statement on Form 8-A, dated
November 8, 1996).
5 Opinion of Faegre & Benson LLP.*
23.1 Consent of Faegre & Benson LLP (included in Exhibit 5).
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23.2 Independent Auditors' Consent of Deloitte & Touche LLP.**
23.3 Independent Auditors' Consent of KPMG Peat Marwick LLP.**
24 Powers of Attorney *
99.1 Buffets, Inc. 1995 Stock Option Plan, as amended.*
99.2 Buffets, Inc. Non-Employee Director Stock Option Plan,
as amended.*
* Previously Filed
** Filed herewith
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Item 9. Undertakings.
A. 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:
(a) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended (the "Securities Act");
(b) To reflect in the prospectus any facts or
events arising after the effective date of this Registration Statement (or the
most recent post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
Registration Statement; and
(c) To include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (A)(1)(a) and (A)(1)(b) shall not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Sections 13 or 15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered herein, 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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Sections 13(a) or 15(d) of the Exchange Act that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the 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 of whether such indemnification by it is against public policy as
expressed in the Securities Act, and will be governed by the final adjudication
of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Company 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 Minneapolis, State of Minnesota, on June 24,
1998.
BUFFETS, INC.
By: /s/ Roe H. Hatlen
------------------------------------
Roe H. Hatlen
Chairman and Chief Executive Officer
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<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Capacity Date
/s/ Roe H. Hatlen Chairman, Chief Executive Officer June 24, 1998
- ---------------------------- and Director (Principal Executive
Roe H. Hatlen Officer)
/s/ Clark C. Grant* Senior Vice President of Finance June 24, 1998
- ---------------------------- and Treasurer (Principal Financial
Clark C. Grant Officer)
/s/ Marguerite C. Nesset* Vice President of Accounting and June 24, 1998
- ---------------------------- Controller (Principal Accounting
Marguerite C. Nesset Officer)
/s/ Walter R. Barry, Jr.* Director June 24, 1998
- ----------------------------
Walter R. Barry, Jr.
/s/ Marvin W. Goldstein* Director June 24, 1998
- ----------------------------
Marvin W. Goldstein
/s/ Alan S. McDowell* Director June 24, 1998
- ----------------------------
Alan S. McDowell
/s/ C. Dennis Scott* Director June 24, 1998
- ----------------------------
C. Dennis Scott
/s/ Michael T. Sweeney* Director June 24, 1998
- ----------------------------
Michael T. Sweeney
*Roe H. Hatlen, by signing his name hereto, hereby signs this document on behalf
of each of the other above-named officers or directors of the Registrant
pursuant to powers of attorney duly executed by those persons.
By: /s/ Roe H. Hatlen
---------------------
Roe H. Hatlen, Attorney-in-Fact
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INDEX TO EXHIBITS
Exhibit
<TABLE>
<S> <C> <C>
4.1 Composite Amended and Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit 4.1 to the Company's Registration
Statement on Form S-3, Registration
No. 33-63694)....................................................................Incorporated by reference
4.2 By-Laws of the Company (incorporated by reference to Exhibit 3(b) to
the Company's Annual Report on Form 10-K for the fiscal year ended
December 29, 1993)...............................................................Incorporated by reference
4.3 Form of Rights Agreement, dated as of October 24, 1995, by and between
the Company and American Stock Transfer and Trust Company (incorporated
by reference to Exhibit 1 to the Company's Current Report on Form 8-K
dated October 24, 1995)..........................................................Incorporated by reference
4.4 Indenture dated as of November 27, 1995 related to 7% Convertible
Subordinated Notes of HomeTown Buffet, Inc. due December 1, 2002
(incorporated by reference to Exhibit 4.6 to the Company's Registration
Statement on Form 8-A, dated November 8, 1996)...................................Incorporated by reference
4.5 First Supplemental Indenture dated as of September 20, 1996
among the Company, HomeTown and Wells Fargo Bank, N.A.
(incorporated by reference to Exhibit 4.7 to the Company's
Registration Statement on Form 8-A, dated November 8, 1996)......................Incorporated by reference
5 Opinion of Faegre & Benson LLP........................................................Filed Electronically
23.1 Consent of Faegre & Benson LLP (included in Exhibit 5)
23.2 Independent Auditors' Consent of Deloitte & Touche LLP................................Filed Electronically
23.3 Independent Auditor's Consent of KPMG Peat Marwick LLP................................Filed Electronically
24 Powers of Attorney (included with signatures to this Registration
Statement)
99.1 Buffets, Inc. Stock Option Plan, as amended...........................................Filed Electronically
99.2 Buffets, Inc. Non-Employee Director Stock Option Plan, as
amended...............................................................................Filed Electronically
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No. 1 to
Registration Statement No. 333-57007 of Buffets, Inc. on Form S-8 of our report
dated February 11, 1998, incorporated by reference in the Annual Report on Form
10-K of Buffets, Inc. for the fiscal year ended December 31, 1997.
Deloitte & Touche LLP
Minneapolis, Minnesota
June 25, 1998
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
HomeTown Buffet, Inc.:
We consent to the incorporation by reference in Amendment No. 1 to the
Registration Statement (No. 333-57007) on Form S-8 of Buffets, Inc. of our
report dated February 16, 1996, except as to Note 6 to the consolidated
financial statements, which is as of March 8, 1996, relating to the consolidated
statements of income, stockholders' equity (deficit), and cash flows for the
year ended January 3, 1996, which report appears in the December 31, 1997 Annual
Report on Form 10-K of Buffets, Inc.
KPMG Peat Marwick LLP
San Diego, California
June 25, 1998
