As filed with the Securities and Exchange Commission on
November 26, 1997.
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)
4441 West Airport Freeway
Irving, Texas
(Address of principal executive offices)
75062 (Zip Code)
SHOWBIZ PIZZA TIME, INC.
1997 NON-STATUTORY 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 and address 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
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to to be price per offering registration
be registered (1) registered share(2) price(2) fee
----------------- ----------- ------- ------- -----------
Common Stock,
par value $.10
per share 925,000 Shares $21.50 $19,887,500 $ 6027
(1) Shares of common stock of ShowBiz Pizza Time, Inc. (the
"Company"), par value $.10 per share (the "Common
Stock"), being registered hereby relate to the ShowBiz
Pizza Time, Inc. 1997 Non-Statutory 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 November , 1997, 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 (e) 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 27, 1996, including the
amendments on Forms 10-K/A filed March 18, 1997 and March
20, 1997;
(b) The Company's Quarterly Report on Form 10-Q for
the fiscal quarter ended March 28, 1997;
(c) The Company's Quarterly Report on Form 10-Q for
the fiscal quarter ended June 27, 1997;
(d) The Company's Quarterly Report on Form 10-Q for
the fiscal quarter ended September 26, 1997; and
(e) 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 (Commission File 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."
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."
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.
<PAGE>
Item 8. Exhibits.
The following are filed as exhibits to this
Registration Statement:
Exhibit No. Description
----------- -----------
4.1 ShowBiz Pizza Time, Inc. 1997 Non-Statutory Stock
Option Plan*
4.2 Specimen form of certificate representing Common Stock,
par value $.10 per share, incorporated by reference
from Exhibit 4(a) to the Company's Annual Report on
Form 10-K for the fiscal year ended December 28, 1990
(Commission File No. 0-15782).
4.3 Articles Fourth, Fifth, Ninth and Fourteenth of the
Restated Articles of Incorporation of the Company
incorporated by reference from the Restated Articles of
Incorporation of the Company, dated November 26, 1996,
and filed as Exhibit 3.1 to the Company's Registration
Statement on Form S-3, dated November 26, 1996
(Registration No. 333-22229).
4.4 Sections 13 and 14 of the Bylaws of the Company
incorporated by reference from the Bylaws of the
Company filed as Exhibit 3 to the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30,
1994.
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 of 1933, as amended (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
Securities and Exchange Commission (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
November 26, 1997.
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 Chairman of the Board November 26, 1997
-------------------- of Directors, Chief Executive
Richard M. Frank Officer and Director (Principal
Executive Officer)
/s/ Michael H. Magusiak President and Director November 26, 1997
-----------------------
Michael H. Magusiak
/s/ Larry G. Page Executive Vice President, November 26, 1997
------------------------ Chief Financial Officer and
Larry G. Page Treasurer (Principal Financial
and Accounting Officer)
/s/ Tim T. Morris Director November 26, 1997
------------------------
Tim T. Morris
/s/ Louis P. Neeb Director November 26, 1997
------------------------
Louis P. Neeb
/s/ Cynthia I. Pharr Director November 26, 1997
------------------------
Cynthia I. Pharr
/s/ Walter Tyree Director November 26, 1997
------------------------
Walter Tyree
/s/ Raymond E. Wooldridge Director November 26, 1997
------------------------
Raymond E. Wooldridge
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
4.1 ShowBiz Pizza Time, Inc. 1997 Non-Statutory Stock Option
Plan
4.2 Specimen form of certificate
representing Common Stock, par value
$.10 per share, incorporated by
reference from Exhibit 4(a) to the
Company's Annual Report on Form 10-K for
the fiscal year ended December 28, 1990
(Commission File No. 0-15782).
4.3 Articles Fourth, Fifth, Ninth and
Fourteenth of the Restated Articles of
Incorporation of the Company
incorporated by reference from the
Restated Articles of Incorporation of
the Company, dated November 26, 1996,
and filed as Exhibit 3.1 to the
Company's Registration Statement on Form
S-3, dated November 26, 1996
(Registration No. 333-22229).
4.4 Sections 13 and 14 of the Bylaws of the
Company incorporated by reference from
the Bylaws of the Company filed as
Exhibit 3 to the Company's Quarterly
Report on Form 10-Q for the quarter
ended September 30, 1994.
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)
EXHIBIT 4
SHOWBIZ PIZZA TIME, INC.
1997 NON-STATUTORY STOCK OPTION PLAN
SHOWBIZ PIZZA TIME, INC., a corporation organized and
existing under the laws of the state of Kansas (the
"Company"), hereby formulates and adopts, with respect to
the shares of common stock of the Company ("Common Stock"),
a non-statutory stock option plan for certain individuals
who are key employees of the Company or its subsidiaries, as
follows:
1. Purpose of Plan. The purpose of this 1997 Non-Statutory
Option Plan (the "Plan") is to encourage certain
individuals who are directors or key employees to
participate in the ownership of the Company, and to provide
additional incentive for such individuals to promote the
success of its business through sharing in the future growth
of such business.
2. Effective Date of the Plan. The provisions of
this Plan became effective on August 1, 1997.
3. Administration. This Plan shall be administered
by the Stock Option Committee of the Board of Directors of
the Company (the "Committee"), which shall be comprised of
two (2) or more directors, each of whom shall be "Non-Employee
Directors," as defined in Rule 16b-3(c),
promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and who are also "Outside
Directors," as defined in Section 162(m) of the Internal
Revenue Code of 1986, as amended from time to time (the
"Code"), and any Treasury Regulations that may be
promulgated thereunder. The Committee shall have full power
and authority to construe, interpret and administer this
Plan, and may from time to time adopt such rules and
regulations for carrying out this Plan as it may deem proper
and in the best interests of the Company. Subject to the
terms, provisions and conditions of this Plan, the Committee
shall have the authority to select the individuals to whom
options shall be granted, to determine the number of shares
subject to each option, to determine the time or times when
options will be granted, to determine the option price of
the shares subject to each option, to determine the time
when each option may be exercised, to fix such other
provisions of each option agreement as the Committee may
deem necessary or desirable, consistent with the terms of
this Plan, and to determine all other questions relating to
the administration of this Plan. The interpretation and
construction of this Plan by the Committee shall be final,
conclusive and binding upon all persons.
4. Eligibility. Options to purchase shares of Common
Stock shall be granted under this Plan only to those
individuals selected by the Committee from time to time who,
in the sole discretion of the Committee, are key employees
at the time of the grant and who have made material
contributions in the past, or who are expected to make
material contributions in the future, to the successful
performance of the Company.
5. Shares Subject to the Plan. Options granted under
this Plan shall be granted solely with respect to shares of
Common Stock. Subject to any adjustments made pursuant to
the provisions of Section 12, the aggregate number of shares
of Common Stock which may be issued upon exercise of all the
options which may be granted under this Plan shall not
exceed 925,000. If any option granted under this Plan shall
expire or terminate for any reason without having been
exercised in full, the unpurchased shares subject to such
options shall be added to the number of shares otherwise
available for options which may be granted in accordance
with the terms of this Plan. The shares to be delivered
upon exercise of the options granted under this Plan shall
be made available, at the discretion of the Committee, from
either the authorized but unissued shares of Common Stock or
any treasury shares of Common Stock held by the Company.
6. Option Contract. Each option granted under this
Plan shall be evidenced by a non-statutory stock option
contract which shall be signed by an officer of the Company
and by the individual to whom the option is granted (the
"Optionee"). The terms of said contract shall be in
accordance with the provisions of this Plan, but it may
include such other provisions as may be approved by the
Committee. The grant of an option under this Plan shall be
deemed to occur on the date on which the contract evidencing
such option is executed by the Company, and every Optionee,
upon the execution of a contract, shall be bound by the
terms and restrictions of this Plan and such contract;
provided, however, if an Optionee does not sign and return
to the Company one (1) duplicate original of their option
contract prior to the expiration of one hundred and twenty
(120) days after the grant date, then the grant shall be
withdrawn, and the option shall be void and of no further
force or effect.
7. Option Price. The price at which shares of Common
Stock may be purchased under an option granted pursuant to
this Plan shall be determined by the Committee, but in no
event shall the price be less than 100 percent of the fair
market value of such shares on the date that the option is
granted. The fair market value of shares of Common Stock
for purposes of this Plan shall be determined by the
Committee, in it sole discretion.
8. Period and Exercise of Option.
(a) Period -- Subject to the provisions of
Section 9 and 10 hereof with respect to the death or
termination of employment of an Optionee, the period during
which each option granted under this Plan may be exercised
shall be fixed by the Committee at the time such option is
granted, provided that such period shall expire no later
than seven (7) years from the date on which the option is
granted (the "Grant Date").
(b) Employment -- The option may not be exercised
to any extent until the Optionee has been continuously, for
a period of at least one (1) year after the Grant Date,
employed by the Company or a subsidiary of the Company.
(c) Exercise -- Any option granted under this
Plan may be exercised by the Optionee only by delivering to
the Company written notice of the number of shares with
respect to which he is exercising his option right, paying
in full the option price of the purchased shares, and
furnishing to the Company a representation in writing signed
by the Optionee that he is familiar with the business and
financial condition of the Company, is purchasing the shares
of stock in good faith for himself for investment purposes
and not with a view towards the sale or distribution
thereof, and will not effect any sale in violation of any
laws or regulations of the United States or any state.
Subject to the limitations of this Plan and the terms and
conditions of the respective stock option contract, each
option granted under this Plan shall be exercisable in whole
or in part at such time or times as the Committee may
specify in such stock option contract.
(d) Payment for Shares -- Payment for shares of
Common Stock purchased pursuant to an option granted under
this Plan may be made in either cash or in shares of Common
Stock.
(e) Delivery of Certificates -- As soon as
practicable after receipt by the Company of the notice and
representation described in Subsection (c), and of payment
in full of the option price for all of the shares being
purchased pursuant to an option granted under this Plan, a
certificate or certificates representing such shares of
stock shall be registered in the name of the Optionee and
shall be delivered to the Optionee. However, no certificate
for fractional shares of stock shall be issued by the
Company notwithstanding any request therefor. Neither any
Optionee, nor the legal representative, legatee or
distributee of any Optionee, shall be deemed to be a holder
of any shares of stock subject to an option granted under
this Plan unless and until the certificate or certificates
for such shares have been issued. All stock certificates
issued upon the exercise of any options granted pursuant to
this Plan may bear such legend as the Committee shall deem
appropriate regarding restrictions upon the transfer or sale
of the shares evidenced thereby.
(f) Withholding -- The Company shall have the
right to deduct any sums that the Committee reasonably
determines that Federal, state or local tax law requires to
be withheld with respect to the exercise of any option or as
otherwise may be required by those laws. The Company may
require as a condition to issuing shares of Common Stock
upon exercise of the option that the Optionee or other
person exercising the option pay any sums that Federal,
state or local tax law required to be withheld with respect
to the exercise. The Company shall not be obligated to
advise any Optionee of the existence of the tax or the
amount which the Company will be so required to withhold.
Upon exercise of an option, if tax withholding is required,
an Optionee may, with the consent of the Committee, have
shares of Common Stock withheld ("Share Withholding") by the
Company from the shares otherwise to be received; provided,
however, that if the Optionee is subject to the provisions
of Section 16 under the Exchange Act, no Share Withholding
shall be permitted unless such transaction complies with the
requirements of Rule 16b-3(e) promulgated under the Exchange
Act. The number of shares so withheld should have an
aggregate fair market value (as determined in accordance
with the terms of this Plan) on the date of exercise
sufficient to satisfy the applicable withholding taxes.
9. Termination of Employment. If an Optionee shall
cease to be an employee of the Company or subsidiary of the
Company for any reason other than death after he shall have
served in such capacity continuously for at lease one (1)
year from the Grant Date, he may, but only within ten (10)
business days next succeeding such cessation, exercise his
option to the extent that he was entitled to exercise it at
the date of such cessation. Nothing in this Plan or any
stock option contract shall be construed as an obligation on
the part of the Company or of any of its subsidiary
corporations to continue the Optionee as an employee.
10. Death of Optionee. In the event of the death of
an Optionee while serving as an employee of the Company or
its subsidiary, any option or unexercised portion thereof
granted to him under this Plan which is otherwise
exercisable may be exercised by the person or persons to
whom such Optionee's rights under the option pass by
operation of the Optionee's will or the laws of descent and
distribution, at any time within a period of three (3)
months following the death of the Optionee (even though such
period is later than the expiration date of the option as
specified in Section 8(a) and in the respective stock option
contract). Such option shall be exercisable even though the
Optionee's death occurs before he has continuously served as
an employee of the Company or its subsidiary for a period of
one (1) year after the date of grant.
11. Non-Transferability of Options. Each option
granted under this Plan shall not be transferable or
assignable by the Optionee other than by will or the laws of
descent and distribution, and during the lifetime of the
Optionee may otherwise be exercised only by him.
12. Adjustments upon Changes in Capitalization. In
the event of any change in the capital structure of the
Company, including but not limited to a change resulting
from a stock dividend, stock split, reorganization, merger,
consolidation, liquidation or any combination or exchange of
shares, and the Company continues thereafter as the
surviving entity, then the number of shares of Common Stock
subject to this Plan and the number of such shares subject
to each option granted hereunder shall be correspondingly
adjusted by the Committee. The option price for which
shares of Common Stock may be purchased pursuant to an
option granted under this Plan shall be adjusted so that
there will be no change in the aggregate purchase price
payable upon the exercise of any option.
13. Amendment and Termination of Plan. No option
shall be granted pursuant to this Plan after July 31, 2007,
on which date this Plan shall expire except as to options
then outstanding under this Plan, which options shall remain
in effect until they have been exercised or have expired.
The Committee may at any time before such date, amend,
modify or terminate this Plan. No amendment, modification
or termination of this Plan may adversely affect the rights
of any Optionee under any then outstanding option granted
hereunder without the consent of such Optionee.
14. Termination of Old Option Contract and Grant of
New Option Contract. An option may be granted under this
Plan which may be conditioned upon the termination of a non-statutory
stock option contract previously granted to the
Optionee which has not yet been terminated or been
exercised; provided, however, that the price for which
shares of Common Stock may be purchased under the new option
may not be less than the price of shares of Common Stock
that were subject to purchase under the terminated option
unless the shareholders of the Company approve the issuance
at a lower price.
15. Change of Control. If while unexercised options
remain outstanding under this Plan, a Change of Control (as
hereinafter defined) shall have occurred, then all such
options shall be exercisable in full, notwithstanding
Section 8(b) hereof or any other provision in this Plan or
option contract to the contrary. For purposes of this 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 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 shareholders, 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 15.
The Committee shall have the right, at the time of
grant or subsequently, in its sole discretion, to establish
conditions under which a specific employee may cease to be a
full-time employee of the Company or any of its Subsidiaries
but not be deemed to have terminated his employment with the
Company or any of its Subsidiaries for purposes of this
Plan, including but not limited to conditions involving
part-time employment or consulting services. Unless
otherwise specifically provided for in an employee's stock
option contract or in an amendment or supplement thereto, an
employee's employment with the Company or any of its
Subsidiaries shall be deemed to terminate when he ceases to
be a full-time employee of the Company or any of its
Subsidiaries.
In the event of a merger, consolidation,
reorganization or recapitalization of the Company, the
Committee shall have the right to accelerate the vesting
schedule with respect to all or any portion of the shares of
Common Stock granted to any or all of the employees under
this Plan, if and to the extent it deems appropriate in its
sole discretion.
16. Restrictions Applicable to Executive Officers.
The provisions of this Section 16 shall apply only to those
executive officers whose compensation is required to be
reported in the Company's proxy statement pursuant to Item
402(a)(3)(i) (or any successor thereto) and of Regulation S-K (or
any successor thereto) under the general rules and
regulations under the Exchange Act ("Executive Officers").
In the event of any inconsistencies between this Section 16
and the other provisions of this Plan, as they pertain
Executive Officers, the provisions of this Section shall
control.
No amendment of this Plan with respect to any Executive
Officer may be made which would (i) increase the maximum
amount that can be paid to any one Executive Officer
pursuant to this Plan or (ii) modify the requirements as to
the Executive Officer's eligibility for participation in
this Plan, unless the Company's shareholders have first
approved such amendment in a manner which would permit the
deduction under Section 162(m) (or any successor thereto) of
the Code of such payment in the fiscal year it is paid. The
Committee shall amend this Section 16 and such other
provisions as it deems appropriate, to cause amounts payable
to certain Executive Officers to satisfy the requirements of
Section 162(m) (or any successor thereto) and the Treasury
Regulations that may be promulgated thereunder.
The maximum number of shares of Common Stock with
respect to which options may be granted hereunder to any
Executive Officer during any calendar year may not exceed
two hundred and fifty thousand (250,000) shares, subject to
any adjustments made pursuant to the provisions of Section
12.
EXHIBIT 5
November 26, 1997
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 925,000 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 1997
Non-Statutory 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 Securities 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,
BAKER & MCKENZIE
EXHIBIT 23.2
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
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