As filed with the Securities and Exchange Commission on
September 30, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SHOWBIZ PIZZA TIME, INC.
(Exact name of registrant as specified in its charter)
Kansas
(State or other jurisdiction
of
incorporation or
organization)
48-0905805
(I.R.S. Employer
Identification No.)
4441 West Airport Freeway
Irving, Texas
(Address of principal
executive offices)
75602
(Zip Code)
SHOWBIZ PIZZA TIME, INC.
NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
(Full title of the plan)
Richard M. Frank
Chairman of the Board and Chief Executive Officer
ShowBiz Pizza Time, Inc.
4441 West Airport Freeway
Irving, Texas 75602
(214) 258-8507
(Name, address, and telephone number,
including area code, of agent for service)
with a copy to:
Alan G. Harvey
Baker & McKenzie
2001 Ross Avenue, Suite 4500
Dallas, Texas 75201
CALCULATION OF REGISTRATION FEE
Title of securities to be registered (1) / Common Stock,
$.10 par value
Amount to be registered / 100,000 shares
Proposed maximum offering price per share / $18.0625
Proposed maximum aggregate offering price / $1,806,250.00
Amount of registration fee / $623.00
(1) Shares of common stock of ShowBiz Pizza Time, Inc. (the
"Company"), $.10 par value per share (the "Common
Stock"), being registered hereby relate to the ShowBiz
Pizza Time, Inc. Non-Employee Directors Stock Option
Plan (the "Plan"). Pursuant to Rule 416 promulgated
under the Securities Act of 1933, as amended (the
"Securities Act"), there are also being registered such
additional shares of Common Stock as may become
issuable pursuant to the anti-dilution provisions of
the Plan.
(2) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(c) and (h)
promulgated under the Securities Act on the basis of
the average of the high and low sale prices of the
Common Stock on September 27, 1996, as reported on the
Nasdaq Stock Market.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference
The documents listed in (a) through(c) below are hereby
incorporated by reference into this Registration Statement.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior
to the filing of a post-effective amendment to the
Registration Statement which indicates that all shares of
Common Stock offered hereunder have been sold or which
deregisters all shares then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a
part hereof from the date of filing of such documents.
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended December 29, 1995;
(b) The Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 1996; and
(c) The description of the Common Stock contained in the
Company's Form 10 filed on May 7, 1987 for registration of
the Common Stock pursuant to Section 12(g) under the
Exchange Act (Registration No. 0-15782), including any
amendment or report filed for the purpose of updating such
descriptions.
Item 4. Description of Securities
Not Applicable.
Item 5. Interest of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers.
Article TENTH of the Restated Articles of Incorporation of
the Company permits the Company to indemnify any director or
officer of the Company, as follows:
"The corporation may agree to the terms and conditions
upon which any director, officer, employee or agent
accepts his office or position and in its Bylaws, by
contract or in any other manner may agree to indemnify
and protect any director, officer, employee or agent of
the corporation, or any person who serves at the request
of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture,
trust or other enterprise, to the extent permitted by the
laws of the State of Kansas."
Article FIFTEENTH of the Restated Articles of Incorporation
of the Company limits the liability of directors to the
Company and its stockholders, as follows:
"No director shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary
duty as a director, provided that this Article shall not
eliminate or limit the liability of a director (i) for
any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under the
provisions of K.S.A. 17-6424 and amendments thereto or
(iv) for any transaction from which the director derived
an improper personal benefit."
Section 6305 of the General Corporation Code of the State of
Kansas provides as follows:
"(a) A corporation shall have power to indemnify any
person who was or is a party, or is threatened to be made
a party, to any threatened, pending or completed action,
suit or proceeding whether civil, criminal,
administrative or investigative, other than an action by
or in the right of the corporation, by reason of the fact
that such person is or was a director, officer, employee
or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer,
employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against
expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in
connection with such action, suit or proceeding,
including attorney fees, if such person acted in good
faith and in a manner such person reasonably believed to
be in or not opposed to the best interests of the
corporation; and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such
person's conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and
in a manner which such person reasonably believed to be
in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that such
person's conduct was unlawful.
"(b) A corporation shall have power to indemnify any
person who was or is a party, or is threatened to be made
a party, to any threatened, pending or completed action
or suit by or in the right of the corporation to procure
a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses actually and
reasonably incurred by such person in connection with the
defense or settlement of such action or suit, including
attorney fees, if such person acted in good faith and in
a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation and
except that no indemnification shall be made in respect
of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation
unless and only to the extent that the court in which
such action or suit was brought shall determine upon
application that, despite the adjudication of liability
but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for
such expenses which the court shall deem proper.
"(c) To the extent that a director, officer, employee
or agent of a corporation has been successful on the
merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b), or in
defense of any claim, issue or matter therein, such
director, officer, employee or agent shall be indemnified
against expenses actually and reasonably incurred by such
person in connection therewith, including attorney fees.
"(d) Any indemnification under subsections (a) and (b),
unless ordered by a court, shall be made by the
corporation only as authorized in the specific case upon
a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances
because such director, officer, employee or agent has met
the applicable standard of conduct set forth in
subsections (a) and (b). Such determination shall be
made (1) by the board of directors by a majority vote of
a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (2) if such a quorum
is not obtainable, or even if obtainable, a quorum of
disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the stockholders.
"(e) Expenses incurred by a director or officer in
defending a civil or criminal action, suit or proceeding
may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of the director
or officer to repay such amount if it is ultimately
determined that the director or officer is not entitled
to be indemnified by the corporation as authorized in
this section. Such expenses incurred by other employees
and agents may be so paid upon such terms and conditions,
if any, as the board of directors deems appropriate.
"(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other
subsections of this section shall not be deemed exclusive
of any other rights to which those seeking
indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, both as to
action in a person's official capacity and as to action
in another capacity while holding such office.
"(g) A corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was
a director, officer, employee or agent of the
corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against
such person and incurred by such person in any such
capacity, or arising out of such person's status as such,
whether or not the corporation would have the power to
indemnify such person against such liability under the
provisions of this section.
"(h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation
or merger which, if its separate existence had continued,
would have had power and authority to indemnify its
directors, officers, and employees or agents so that any
person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as
a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this
section with respect to the resulting or surviving
corporation as such person would have with respect to
such constituent corporation if its separate existence
had continued.
"(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes
assessed on a person with respect to an employee benefit
plan; and references to "serving at the request of the
corporation" shall include any service as a director,
officer, employee or agent of the corporation which
imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an
employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and
in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the
corporation" as referred to in this section.
"(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this section shall,
unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit
of the heirs, executors and administrators of such a
person."
Section 24 of the Bylaws of the Company provides for
indemnification of directors and officers under certain
circumstances, as follows:
"Each person who is or was a director or officer of the
corporation or is or was serving at the request of the
corporation as a director or officer of another
corporation (including the heirs, executors,
administrators and estate of such person) shall be
indemnified by the corporation as of right to the full
extent permitted or authorized by the laws of the State
of Kansas, as now in effect and as hereafter amended,
against any liability, judgment, fine, amount paid in
settlement, cost and expense (including attorneys' fees)
asserted or threatened against and incurred by such
person in his capacity as or arising out of his status as
a director or officer of the corporation or, if serving
at the request of the corporation, as a director or
officer of another corporation. The indemnification
provided by this bylaw provision shall not be exclusive
of any other rights to which those indemnified may be
entitled under any other bylaw or under any agreement,
vote of stockholders or disinterested directors or
otherwise, and shall not limit in any way any right which
the corporation may have to make different or further
indemnification with respect to the same or different
persons or classes of persons.
"No person shall be liable to the corporation for any
loss, damage, liability or expense suffered by it on
account of any action taken or omitted to be taken by him
as a director or officer of the corporation or of any
other corporation which he serves as a director or
officer at the request of the corporation, if such person
(i) exercised the same degree of care and skill as a
prudent man would have exercised under the circumstances
in the conduct of his own affairs, or (ii) took or
omitted to take such action in reliance upon advice of
counsel for the corporation, or for such other
corporation, or upon statements made or information
furnished by directors, officers, employees or agents of
the corporation or of such other corporation which he had
no reasonable grounds to disbelieve."
Subsection 6002(b)(8) of the General Corporation Code of the
State of Kansas provides as follows:
"(b) In addition to the matters required to be set
forth in the articles of incorporation by subsection (a),
the articles of incorporation may also contain any or all
of the following matters:
* * *
"(8) A provision eliminating or limiting the personal
liability of a director to the corporation or its
stockholders, policyholders or members for monetary
damages for breach of fiduciary duty as a director,
provided that such provision shall not eliminate or limit
the liability of a director (A) for any breach of the
director's duty of loyalty to the corporation or its
stockholders, policyholders or members (B) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of the law, (C) under
the provisions of K.S.A. 17-6424 and amendments thereto,
or (D) for any transaction from which the director
derived an improper personal benefit. No such provision
shall eliminate or limit the liability of a director for
any act or omission occurring prior to the date when such
provision becomes effective. All references in this
subsection to a director shall also be deemed to refer to
a member of the governing body of a corporation which is
not authorized to issue capital stock."
The Company maintains policies of directors' and officers'
liability. In addition, it also has certain indemnification
contracts with some of its officers and employees that are
included in the licensing of Company stores to sell beer,
wine and/or liquor, providing for rights of indemnification
additional to those discussed above.
The preceding discussion of the Company's Restated Articles
of Incorporation and Bylaws and the Kansas General
Corporation Code is not intended to be exhaustive and is
qualified in its entirety by the Restated Articles of
Incorporation and Bylaws and the Kansas General Corporation
Code.
Item 7. Exemption from Registration Claimed.
None.
Item 8. Exhibits.
The following are filed as exhibits to this Registration
Statement:
Exhibit No. Description
----------- ------------
4 ShowBiz Pizza Time, Inc. Non-Employee
Directors Stock Option Plan*
5 Opinion of Baker & McKenzie*
23.1 Consent of Baker & McKenzie (See Exhibit 5)*
23.2 Consent of Deloitte & Touche LLP*
24 Power of Attorney (included on the signature
page of the Registration Statement)*
* filed herewith
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;
(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)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3 or Form
S-8, and the information required to be included in a post-effective
amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in 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.
(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the 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 Registrant of expenses incurred
or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Irving, State of Texas, on September 27, 1996.
SHOWBIZ PIZZA TIME, INC.
By:
Michael H. Magusiak
President
POWER OF ATTORNEY
Each person whose signature appears below hereby
authorizes Richard M. Frank or Michael H. Magusiak to file one
or more amendments (including post-effective amendments) to
this registration statement, which amendments may make such
changes in this registration statement as each of them deems
appropriate, and each such person hereby appoints Richard M.
Frank or Michael H. Magusiak as attorney-in-fact to execute in
the name and on behalf of the Company and any such person,
individually and in each capacity stated below, any such
amendments to this registration statement.
Pursuant to the requirements of the Securities Act, this
registration statement has been signed by the following
persons in the capacities and on the date indicated.
Signature Title Date
--------- ------ ----
Richard M. Frank
Chairman of the Board of Directors,
Chief Executive Officer and Director
(Principal Executive Officer)
September 27, 1996
Michael H. Magusiak
President and Director
September 27, 1996
Larry G. Page
Executive Vice President, Chief
Financial Officer and Treasurer
(Principal Financial and Accounting
Officer)
September 27, 1996
Anthony J. Gumbiner
Director
September 27, 1996
Brian M. Troup
Director
September 27, 1996
J. Thomas Talbot
Director
September 27, 1996
Charles A. Crocco, Jr.
Director
September 27, 1996
Robert L. Lynch
Director
September 27, 1996
Louis P. Neeb
Director
September 27, 1996
Cynthia I. Pharr
Director
September 27, 1996
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Irving, State of Texas, on September 27, 1996.
SHOWBIZ PIZZA TIME, INC.
By: /s/ MICHAEL H. MAGUSIAK
Michael H. Magusiak
President
POWER OF ATTORNEY
Each person whose signature appears below hereby
authorizes Richard M. Frank or Michael H. Magusiak to file one
or more amendments (including post-effective amendments) to
this registration statement, which amendments may make such
changes in this registration statement as each of them deems
appropriate, and each such person hereby appoints Richard M.
Frank or Michael H. Magusiak as attorney-in-fact to execute in
the name and on behalf of the Company and any such person,
individually and in each capacity stated below, any such
amendments to this registration statement.
Pursuant to the requirements of the Securities Act, this
registration statement has been signed by the following
persons in the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ RICHARD M. FRANK
Richard M. Frank
Chairman of the Board of Directors, Chief
Executive Officer and Director (Principal
Executive Officer)
September 27, 1996
/s/ MICHAEL H. MAGUSIAK
Michael H. Magusiak
President and Director
September 27, 1996
/s/ LARRY G. PAGE
Larry G. Page
Executive Vice President, Chief Financial
Officer and Treasurer (Principal Financial
and Accounting Officer)
September 27, 1996
/s/ ANTHONY J. GUMBINER
Anthony J. Gumbiner
Director
September 27,1996
/s/ BRIAN M. TROUP
Brian M. Troup
Director
September 27, 1996
/s/ J. THOMAS TALBOT
J. Thomas Talbot
Director
September 27, 1996
/s/ CHARLES A. CROCCO, JR.
Charles A. Crocco, Jr.
Director
September 27, 1996
/s/ ROBERT L. LYNCH
Robert L. Lynch
Director
September 27, 1996
/s/ LOUIS P. NEEB
Louis P. Neeb
Director
September 27, 1996
/s/ CYNTHIA I. PHARR
Cynthia I. Pharr
Director
September 27, 1996
EXHIBIT INDEX
Exhibit No. Description Page
---------- ------------ ----
4 ShowBiz Pizza Time, Inc. Non-Employee
Directors Stock Option Plan
5 Opinion of Baker & McKenzie
23.2 Consent of Deloitte & Touche LLP
SHOWBIZ PIZZA TIME, INC.
NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
ARTICLE I
PURPOSE AND ADMINISTRATION
1.1 Purpose. The purpose of the ShowBiz Pizza Time,
Inc. Non-Employee Directors Stock Option Plan (the "Plan") is
to strengthen ShowBiz Pizza Time, Inc. (the "Company") by
providing a means of retaining and attracting competent non-employee
personnel to serve on its board of directors by
extending such individuals added long-term incentives for high
levels of performance and for unusual efforts designed to
improve the financial performance of the Company. In order to
effectuate this intent, the Company will, pursuant to this
Plan, grant to each non-employee director the herein specified
options to acquire shares of common stock of the Company
("Common Stock"), which options shall vest over a specified
period of time.
1.2 Administration. The Plan shall be administered by a
committee (the "Committee") which shall be comprised of the
President of the Company and the Chief Financial Officer of
the Company.
Subject to the express provisions of the Plan, the
Committee shall have powers and authorities which are
exclusively ministerial in nature, including the authority to
construe and interpret the Plan, to define the terms used in
the Plan, to prescribe, amend and rescind rules and
regulations relating to the administration of the Plan, and to
make all other determinations necessary or advisable for the
administration of the Plan. The determinations of the
Committee on all such matters referred to in this Plan shall
be conclusive. No member of the Committee shall be liable for
any action, failure to act, determination or interpretation
made in good faith with respect to the Plan or any transaction
under the Plan.
1.3 Participation. Each member of the Board of
Directors of the Company (the "Board") who is not employed by
the Company or any Affiliate (collectively, the "Non-Employee
Directors") shall be eligible and shall participate in the
Plan. For purposes of the Plan, the term "Affiliate" shall
mean any entity in which the Company directly or through
intervening subsidiaries owns twenty-five percent (25%) or
more of the total combined vetoing power or value of all
classes of stock or, in the case of an unincorporated entity,
a twenty-five percent (25%) or more interest in the capital
and profits.
1.4 Stock Subject to the Plan. Subject to adjustment as
provided in Section 3.1 hereof, the stock to be offered under
the Plan shall be treasury shares or shares of the Company's
authorized but unissued Common Stock (hereinafter collectively
called "Stock"). The aggregate number of shares of Stock to
be issued upon exercise of all options granted under the Plan
shall not exceed 100,000 shares, subject to adjustments as set
forth in Section 3.1 hereof. If any option granted hereunder
shall lapse or terminate for any reason without having been
fully exercised, the shares subject thereto shall again be
available for purposes of the Plan.
1.5 Restrictions on Exercise. No option granted
hereunder may be exercised until a registration statement
under the Securities Act of 1933, as amended (the "Act"),
relating to the Stock issuable upon exercise of such option
has been filed with, and declared effective by, the Securities
and Exchange Commission (the "Commission"), and there is
available for delivery a prospectus meeting the requirements
of Section 10 of the Act, or until the Committee has
determined that the issuance of Stock upon such exercise is
exempt from the registration and prospectus requirements of
the Act.
ARTICLE II
STOCK OPTIONS
2.1 Grant and Option Price. (a) On the effective date
of this Plan, Anthony J. Gumbiner and Brian M. Troup shall
each be granted an option to purchase 7,500 shares of Stock.
Thereafter, on the day a Non-Employee Director is first
elected or appointed to the Board, such Non-Employee Director
shall be granted an option to purchase 7,500 shares of Stock.
(b) On the fifth Business Day in January of the year
following the effective date of the Plan, each Non-Employee
Director who was previously elected to the Board and who
continues to serve in such capacity at such time shall be
granted an option to purchase 2,500 shares of Stock. For
purposes of the Plan, the term "Business Day" shall mean a day
on which the Nasdaq National Market is open for business and
is conducting normal trading activity.
(c) The purchase of the Stock covered by each option
granted under the Plan shall be equal to the Fair Market Value
of such Stock on the grant date. For purposes of the Plan,
the term "Fair Market Value" shall mean the average of the
closing prices of the Common Stock as reported by the Nasdaq
National Market for the five trading-day period ending on and
including the date of grant.
(d) The total grant under both paragraphs (a) and (b)
above shall be limited accordingly to the greatest number of
whole shares of Stock which may thus be granted thereunder.
2.2 Stock Option Agreement. Each option granted
pursuant to the Plan shall be evidenced by a Stock Option
Agreement ("Option Agreement"), in such form as the Committee
shall require, between the Company and the Non-Employee
Director to whom the option has been granted (the "Optionee").
2.3 Option Period. Except as otherwise provided herein,
each option and all rights or obligations thereunder shall
expire on the fifth anniversary of the grant date (the
"Expiration Date"), and shall be subject to earlier
termination as hereinafter provided.
2.4 Vesting and Exercise of Options. (a) Subject to
Section 3.2 hereof, an option granted pursuant to Sections
2.1(a) or (b) hereof shall be exercisable only to the extent
of shares that have vested in accordance with the following
schedule:
Portion of Shares that are Vested
Annual Anniversary On or After Such Anniversary
of Date of Grant and Before Next Anniversary
------------------ --------------------------------
First 0%
Second 50%
Third 100%
(b) The purchase price of the stock purchased upon
exercise of an option shall be paid in full in cash or by
check at the time of each exercise of an option; provided,
however, that if the Option Agreement so provides and upon
receipt of all regulatory approvals, the person exercising the
option may deliver in payment of a portion or all of the
purchase price certificates for Common Stock of the Company,
which shall be valued at the Fair Market Value of such Stock
on the date of exercise of the option.
2.5 Non-Transferability of Options. An option granted
under the Plan shall, by its terms, be non-transferable by the
Optionee other than by will or by the laws of descent and
distribution or pursuant to a qualified domestics relations
order. During the Optionee's lifetime, the option shall be
exercisable only by the Optionee or by the Optionee's duly
appointed guardian or personal representative.
2.6 Termination of Directorship. (a) If the
directorship of the Optionee is terminated for any reason
other than (i) death of the Optionee, or (ii) on account of
any act of fraud or intentional misrepresentation or
embezzlement, misappropriation or conversion of assets or
opportunities of the Company or any Affiliate, an option (to
the extent otherwise exercisable on the date of such
termination) shall be exercisable by the Optionee at any time
prior to the Expiration Date of the option or within thirty
(30) days after the date of such termination of the
directorship, whichever is the shorter period.
(b) If an Optionee dies while serving as a member of
the Board, the option shall be exercisable (whether or not
exercisable on the date of the death of such Optionee) by the
person or persons entitled to do so under the Optionee's will,
or, if the Optionee shall fail to make testamentary
disposition of said option or shall die intestate, by the
Optionee's legal representative or representatives, at any
time prior to the Expiration Date of the option or within
ninety (90) days after the date of such death, whichever is
the shorter period. If an Optionee dies during the thirty
(30) day period described in subsection (a) above, the option
shall be exercisable (but only to the extent exercisable on
the date of death of such Optionee) by the person or persons
described above at any time within the thirty (30) day period
described in subsection (a) above or within ninety (90) days
after the date of such death, whichever is the longer period,
but in no event after the Expiration Date of the option.
(c) The option of a Non-Employee Director shall
automatically terminate as of the date his or her directorship
is terminated, if the directorship is terminated on account of
any act of (a) fraud or intentional misrepresentation, or (b)
embezzlement, misappropriation or conversion of assets or
opportunities of the Company or any Affiliate.
2.7 Issuance of Stock Certificates. Upon exercise of an
option, but subject to the provisions of Section 3.5 of the
Plan, the person exercising the option shall be entitled to
one stock certificate evidencing the shares acquired upon such
exercise; provided, however, that any person who tenders
Common Stock in payment of a portion or all of the purchase
price of Stock purchased upon exercise of the option shall be
entitled to receive a separate certificate representing the
number of shares purchased in consideration of the tender of
such Common Stock.
ARTICLE III
OTHER PROVISIONS
3.1 Adjustments Upon Changes in Capitalization. (a) If
a dividend or stock split shall be hereinafter declared upon
the Common Stock of the Company payable in shares of Common
Stock of the Company, the number of shares of Common Stock
then subject to any such option and the number of shares
reserved for issuance pursuant to the Plan but not yet covered
by an option shall be adjusted by adding to each such share
the numbers of shares which would be distributable thereon if
such share had been outstanding on the date fixed for
determining the stockholders entitled to receive such stock
dividend or stock split.
(b) If the outstanding shares of the Common Stock of the
Company shall be changed into or exchanged for a different
number or kind of shares of stock or other securities of the
Company or of another corporation, whether through
reorganization, recapitalization, stock split, combination of
shares, merger or consolidation, and the Company continues
thereafter as the surviving entity, then there shall be
substituted for each share of Stock subject to any such option
and for each share of Stock reserved for issuance pursuant to
the Plan but not yet covered by an option, the number and kind
of shares of stock or other securities into which each
outstanding share of Common Stock shall be changed or for
which each such share shall be exchanged.
(c) If there shall be any change, other than as
specified above in subsection (a) and (b), in the number or
kind or outstanding shares of Common Stock of the Company or
of any stock or other securities into which Common Stock shall
have been changed or for which it shall have been exchanged,
then if the Committee shall in its sole discretion determine
that such change equitably requires an adjustment in the
number or kind of shares theretofore reserved for issuance
pursuant to the Plan but not yet covered by an option and of
the shares then subject to an option or options, such
adjustment shall be made by the Committee and shall be
effective and binding for all purposes of the Plan and of each
Option Agreement.
(d) In the case of any such substitution or adjustment
as provided for in this Section 3.1, the option price in each
Option Agreement for each share covered thereby prior to such
substitution or adjustment will be the option price for all
shares of stock or other securities which shall have been
substituted for such share or to which such adjustment
provided for in this Section 3.1 shall be made. No adjustment
or substitution provided for in this Section 3.1 shall require
the Company pursuant to any Option Agreement to sell a
fractional share, and the total substitution or adjustment
with respect to each Option Agreement shall be limited
accordingly.
3.2 Continuation of Directorship. Nothing contained in
this Plan (nor in any option granted pursuant to this Plan)
shall confer upon any Non-Employee Director any right to
continue as a member of the Board or constitute any contract
or agreement or interfere in any way with the right of the
Company to remove such Non-Employee Director from the Board.
Nothing contained herein or in any Option Agreement shall
affect any other contractual rights of a Non-Employee
Director.
3.25 Change of Control. If while any unexercised
options remain outstanding under the Plan, a Change of Control
(as hereinafter defined) shall have occurred, then all such
options shall be exercisable in full, notwithstanding Section
2.4 hereof or any other provision in the Plan or Option
Agreement to the contrary. For purposes of the Plan, a
"Change of Control" shall be deemed to have occurred with
respect to the Company: (A) on the date in which the Company
executes an agreement or an agreement in principle (i) with
respect to any merger, consolidation or other business
combination by the Company with or into another entity and the
Company is not the surviving entity, or (ii) to sell or
otherwise dispose of all or substantially all of its assets,
or (iii) to adopt a plan of liquidation; or (B) on the date in
which public announcement is made that the "beneficial
ownership" [as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")], of
securities representing more than 50% of the combined voting
power of the Company is being acquired by a "person" within
the meaning of sections 13(d) and 14(d) of the Exchange Act;
or (C) if, during any period of eighteen (18) consecutive
months, individuals who at the beginning of such period were
members of the Board of Directors cease for any reason to
constitute at least a majority thereof (unless the appointment
or election, or the nomination for election by the Company's
stockholders, of each new director was approved by a vote of
at least a majority of the directors then still in office who
were directors at the beginning of such period); provided,
however, that in no event shall a change in the composition of
the Company's Board of Directors pursuant to an election of
Board members pursuant to Section 4.6 of the Company's
Articles of Incorporation, as amended, constitute or result in
a Change of Control for purposes of this Section 3.25.
3.3 Amendment and Termination. The Board may at any
time suspend or terminate the Plan. No option may be granted
during any suspension of the Plan or after such termination.
The amendment, suspension or termination of the Plan shall
not, without the consent of the Optionee, alter or impair any
rights or obligations under any option theretofore granted
under the Plan.
The Board may at any time amend the Plan as it shall deem
advisable without further action on the part of the
stockholders of the Company, provided, that the Board may not
amend any provision of the Plan relating to the amount and
price of Stock subject to the options granted hereunder or the
timing of grants hereunder more than once every six months,
other than to comport with changes in the Internal Revenue
Code of 1986, as amended, the Employee Retirement Income
Security Act, or the rules thereunder, and provided further,
that any amendment to the Plan must be approved by the
stockholders of the Company if the amendment would (a)
materially increase the aggregate number of shares of Stock
which may be issued pursuant to options granted under the
Plan, (b) materially modify the requirements as to eligibility
for participation in the Plan, or (c) materially increase the
benefits accruing to holders of options under the Plan.
3.4 Time of Exercise. An option shall be deemed to be
exercised when the Secretary of the Company receives written
notice of such exercise from the person entitled to exercise
the option together with payment of the purchase price made in
accordance with Section 2.4 of the Plan.
3.5 Privileges of Stock Ownership and Non-Distributive
Intent. The holder of an option shall not be entitled to the
privilege of stock ownership as to any shares of Stock not
actually issued and delivered to the holder. Subject to the
provisions of Section 1.5 above, upon exercise of an option
for Stock at a time when there is not in effect under the Act
a registration statement relating to the Stock issuable upon
exercise thereof or not available for delivery a prospectus
meeting the requirements of Section 10 of the Act, the holder
of the option shall execute a stock purchase agreement in
which he shall represent and warrant in writing to the Company
that, inter alia, the shares of Stock purchased are being
acquired for investment and not with a view to the resale or
distribution thereof. No shares of Stock shall be issued upon
the exercise of any option unless and until there shall have
been compliance with any then applicable requirements of the
Commission, other regulatory agencies having jurisdiction and
any exchanges upon which securities subject to the option may
be listed.
3.6 Effective Date of the Plan. The Plan shall be
effective upon approval by the affirmative vote of the holders
of a majority of the outstanding shares of Common Stock and
the Company's outstanding shares of preferred stock, voting as
one class, present and entitled to vote at a meeting duly held
or by the written consent of the holders of a majority of the
Common Stock and the Company's outstanding shares of preferred
stock, voting as one class, entitled to vote.
3.7 Expiration. Unless previously terminated or
extended by the Board, the Plan shall expire at the close of
business on the date which is the last day of the five (5)
year period beginning on the date on which the stockholders
approve the Plan, and no option shall be granted under it
thereafter, but such expiration shall not affect any option
theretofore granted.
3.8 Governing Law. The Plan and the options issued
hereunder shall be governed by, and construed and enforced in
accordance with, the laws of the State of Texas applicable to
contracts made and performed within that State.
3.9 Applications of Funds. The proceeds received by the
Company from the sale of shares pursuant to options shall be
used for general corporate purposes.
3.10 No Liability for Good Faith Determinations.
Neither the members of the Board not any member of the
Committee shall be liable for any act, omission or
determination taken or made in good faith with respect to the
Plan or any option granted under it.
3.11 Information Confidential. As partial consideration
for the granting of each option hereunder, the Optionee shall
agree with the Company that he will keep confidential all
information and knowledge which he has relating to the manner
and amount of his participation in the Plan; provided,
however, that such information may be given in confidence to
the Optionee's spouse or to a financial institution to the
extent that such information is necessary.
3.12 Execution of Receipts and Releases. Any payment or
any issuance or transfer of shares of Stock to the Optionee,
or to his legal representative, heir, legatee or distributee,
in accordance with the provisions hereof, shall, to the extent
thereof, be in full satisfaction of all claims of such persons
hereunder. The Board may required any Optionee, legal
representative, heir, legatee or distributee, as a condition
precedent to such payment, to execute a release and receipt
therefor in such form as it shall determine.
3.13 No Guarantee of Interests. Neither the Board nor
the Company guarantees the Stock from loss or depreciation.
3.14 Payment of Expenses. All expenses incident to the
administration, termination or protection of the Plan,
including, but not limited to, legal and accounting fees,
shall be paid by the Company.
3.15 Company Records. Records of the Company and any
Affiliate regarding the Optionee's period of service,
termination of service and the reason therefor, leaves of
absence, and other matters shall be conclusive for all
purposes hereunder, unless determined by the Board to be
incorrect.
3.16 Information. The Company and any Affiliate shall,
upon request or as may be specifically required hereunder,
furnish or cause to be furnished all of the information or
documentation which is necessary or required by the Committee
to perform its duties and functions under the Plan.
3.17 No Liability of Company. The Company assumes no
obligation or responsibility to the Optionee or his or her
personal representatives, heirs, legatees or distributees for
any act of, or failure to act on the part of , the Board or
the Committee.
3.18 Company Action. Any action required of the Company
shall be by resolution of the Board or by a person authorized
to act by Board resolution.
3.19 Severability. If any provision of this Plan shall
be held to be illegal or invalid for any reason, the
illegality or invalidity shall not affect the remaining
provisions hereof, but shall be fully severable and the Plan
shall be construed and enforced as if the illegal or invalid
provision had never been included herein.
3.20 Notice. Whenever any notice is required or
permitted hereunder, such notice must be in writing and
personally delivered or sent by mail. Except as otherwise
provided in Section 3.4 of this Plan, any notice required or
permitted to be delivered hereunder shall be deemed to be
delivered on the date on which it is personally delivered or,
whether actually received or not, on the third (3rd) business
day after it is deposited in the United States mail, certified
or registered, postage prepaid, addressed to the person who is
to receive it at the address which such person has theretofore
specified by written notice delivered in accordance herewith.
The Company or an Optionee may change, at any time and from
time to time, by written notice to the other, the address
which it or he had theretofore specified for receiving notice.
Until it is changed in accordance herewith, the Company and
each Optionee shall specify as its and his address for
receiving notice the address set forth in the Option Agreement
pertaining to the shares to which such notice relates.
3.21 Waiver of Notices. Any person entitled to notice
hereunder may waive such notice.
3.22 Successors. The Plan shall be binding upon the
Optionee, his or her heirs, legatees and legal
representatives, upon the Company, its successors and assigns
and upon the Board and its successors.
3.23 Headings. The titles and headings of sections and
paragraphs are included for convenience of reference only and
are not to be considered in construction of the provisions
hereof.
3.24 Word Usage. Words used in the masculine shall
apply to the feminine where applicable and, wherever the
context of this Plan dictates, the plural shall be read as the
singular and the singular as the plural.
EXHIBIT 5
September 27, 1996
ShowBiz Pizza Time, Inc.
4441 West Airport Freeway
Irving, Texas 75602
Gentlemen:
ShowBiz Pizza Time, Inc., a Kansas corporation (the
"Company"), intends to file with the Securities and Exchange
Commission (the "Commission") a registration statement (the
"Registration Statement") on Form S-8 under the Securities Act
of 1933, as amended (the "Act"). The Registration Statement
covers 100,000 shares of common stock, $.01 par value per
share ("Common Stock"), of the Company, and such additional
shares of Common Stock as may become issuable pursuant to the
anti-dilution provisions of the Plan (such shares collectively
referred to as the "Securities"). Such Securities are to be
issued pursuant to the Company's Non-Employee Directors Stock
Option Plan (the "Plan").
We have acted as counsel to the Company in connection
with the preparation and filing of the Registration Statement.
In rendering this opinion we have examined such corporate
records, documents and instruments of the Company and such
certificates of public officials, have received such
representations from officers of the Company, and have
reviewed such questions of law as in our judgment are
necessary, relevant or appropriate to enable us to render the
opinion expressed below. In such examination, we have assumed
the genuineness of all signatures, the authenticity of all
corporate records, documents and instruments submitted to us
as originals, the conformity to original documents of all
documents submitted to us as conformed, certified or
photostatic copies thereof, and the authenticity of the
originals of such photostatic, certified or conformed copies.
Based upon such examination and review and upon
representations made to us by officers of the Company, we are
of the opinion that upon issuance and delivery of the
Securities in accordance with the terms and conditions of the
Plan, and upon receipt by the Company of the full
consideration for the Securities as determined pursuant to the
Plan, the Common Stock will be legally issued, fully paid and
nonassessable shares of Common Stock.
This firm consents to the filing of this opinion as an
exhibit to the Registration Statement. In giving such
consent, we do not admit that we come within the category of
persons whose consent is required by Section 7 of the Act or
the rules and regulations of the Commission thereunder.
Respectfully submitted,
/s/ BAKER & MCKENZIE
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
INDEPENDENT AUDITOR'S CONSENT
Board of Directors and Stockholders
ShowBiz Pizza Time, Inc.
Irving, Texas
We consent to the incorporation by reference in the Registration Statement on
Form S-8, ShowBiz Pizza Time, Inc. Non-Employee Directors Stock Option Plan,
of ShowBiz Pizza Time, Inc. of our report dated Februrary 23, 1996, appearing
in the Annual Report on Form 10-K of ShowBiz Pizza Time, Inc. for the year
ended December 29, 1995.
