As filed with the Securities and Exchange Commission on February 7, 1997
Registration No. 33-_________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
STACEY'S BUFFET, INC.
- --------------------------------------------------------------------------------
(Exact name of Registrant as specified in its Charter)
Florida 59-2736736
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
801 West Bay Drive, Suite 704
Largo, Florida 34640
(813) 581-4492
- --------------------------------------------------------------------------------
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive office)
Daniel J. Sullivan, Chief Financial Officer
Stacey's Buffet, Inc.
801 West Bay Drive, Suite 704
Largo, Florida 34640
(813) 581-4492
- --------------------------------------------------------------------------------
(Name, address, including zip code, and telephone number,
including area code, of Registrant's agent for service)
With copy to:
Jeffrey M. Stoler, Esq.
Partridge, Snow & Hahn
101 Federal Street
Boston, Massachusetts 02110
617-476-8901
Approximate date of commencement of the proposed sale to the public: As soon as
practicable after this Registration Statement is declared effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
-------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Class of Securities Amount to Offering Price Aggregate Offering Amount of
to be Registered be Registered Per Share(1) Price Registration Fee
- ----------------------------- ------------- ---------------- ------------------ ----------------
<S> <C> <C> <C> <C>
Common Shares, $.01 par value 323,700 $ .625 $202,312 $61.31
<FN>
- -------------------
<F1> (1) The price has been calculated in accordance with Rule 457(c) and is based
on the closing price of the Common Stock as reported on the Nasdaq
SmallCap System on January 31, 1997.
</FN>
</TABLE>
Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until Registrant shall file a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act, or until the Registration Statement shall become effective on
such date as the Commission acting pursuant to Section 8(a), may determine.
SUBJECT TO COMPLETION, DATED FEBRUARY 7, 1997
PROSPECTUS
STACEY'S BUFFET, INC.
323,700 Shares
Common Stock
This Prospectus relates to the registration for sale of 323,700 shares
(the "Shares") of common stock, par value $.01 per share (the "Common Stock"),
of Stacey's Buffet, Inc., a Florida corporation (the "Company"), by the
Stockholders Registering Shares (as hereinafter defined). The Company will bear
all expenses incident to the registration of the Shares under the Securities Act
of 1933, as amended (the "Securities Act"), and state securities laws, if any,
on behalf of the Stockholders Registering Shares. The Company will not receive
any proceeds from the sale of the Shares by the Stockholders Registering Shares.
The Common Stock is traded in the National Association of Securities
Dealers Automated Quotation System - SmallCap System (the "Nasdaq SmallCap")
under the symbol "SBUF." On January 31, 1997, the closing price per share of the
Common Stock as reported on the Nasdaq SmallCap Market was $.625.
-------------------
THE SECURITIES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK.
SEE "RISK FACTORS."
-------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
Proceeds to the
Price to Proceeds to Stockholders
Public (1) the Company Registering Shares (2)
---------- ----------- ----------------------
<S> <C> <C> <C>
Per Share............... $ .625 0 $ .625
Total................... $202,312 0 $202,312
<FN>
- -------------------
<F1> (1) This price is based on the closing price of the Common Stock as reported
on the Nasdaq SmallCap Market on January 31, 1997.
<F2> (2) The Stockholders Registering Shares shall pay all underwriting discounts
and commissions, if any, in connection with the sale of their respective
Shares. Expenses associated with the preparation of this Prospectus, and
the Registration Statement of which it is a part, are payable by the
Company and are estimated at $20,061.31. The Company will not receive any
of the proceeds from the sale of the Shares by the Stockholders
Registering Shares. See "Use of Proceeds."
</FN>
</TABLE>
The date of this Prospectus is February 7, 1997
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
AVAILABLE INFORMATION..................................................... 3
INCORPORATION OF DOCUMENTS BY REFERENCE................................... 3
THE COMPANY............................................................... 5
RISK FACTORS.............................................................. 5
USE OF PROCEEDS........................................................... 9
STOCKHOLDERS REGISTERING SHARES........................................... 9
PLAN OF DISTRIBUTION...................................................... 9
DESCRIPTION OF SECURITIES................................................. 10
LEGAL MATTERS............................................................. 10
EXPERTS................................................................... 10
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES
ACT LIABILITIES.......................................................... 10
</TABLE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). The reports, proxy
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's Regional Offices at Seven World Trade Center, New York, NY
10048 and Northwestern Atrium Center, 500 West Madison Street (Suite 1400),
Chicago, IL 60661. Copies of such material can also be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates. The Company's Common Stock is included for quotation
in the Nasdaq SmallCap under the symbol "SBUF" and such reports, proxy
statements and other information concerning the Company are available for
inspection and copying at the office of the National Association of Securities
Dealers, 1735 K Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission a Registration Statement on Form
S-3 (together with any amendments thereto, the "Registration Statement") under
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
the transactions described herein. As permitted by the rules and regulations of
the Commission, this Prospectus omits certain information, exhibits and
undertakings contained in the Registration Statement. Such additional
information, exhibits and undertakings can be inspected at and obtained from the
Commission's principal office in Washington, D.C. For further information with
respect to the transactions described herein and the Company, reference is made
to the Registration Statement and the financial schedules and exhibits filed as
part thereof. Statements contained in this Prospectus as to the terms of any
agreement or other document are not necessarily complete; with respect to each
such agreement or other document filed as an exhibit to the Registration
Statement, reference is hereby made to the exhibit for a more complete
description of the matter involved, and each such statement is qualified in all
respects by such reference.
INCORPORATION OF DOCUMENTS BY REFERENCE
The Company hereby incorporates in this Prospectus by reference: (i) the
Company's Current Report on Form 8-K dated November 6, 1996; (ii) the Company's
Proxy Statement dated May 25, 1996; (iii) the Company's Annual Report on Form
10-K for the year ended January 3, 1996; (iv) the Company's Quarterly Reports on
Forms 10-Q for the fiscal quarters ended March 27, 1996, June 19, 1996 and
October 9, 1996; (v) the Company's Registration Statement on Form S-4 dated
September 3, 1993, registration number 33-68418, as amended; and (vi) the
Company's Registration Statement on Form S-2 dated November 19, 1993,
registration number 33-71898, as amended. All documents filed by the Company
with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date hereof and prior to the termination of the offering
of the Shares described in this Prospectus shall be deemed to be incorporated
herein by reference and to be a part hereof from the respective dates of the
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a
Prospectus is delivered, upon the oral or written request of any such person, a
copy of any or all of the documents incorporated by reference herein, other than
certain exhibits to such documents. Such requests should be addressed to Ms.
Maureen A. Jack, Secretary, Stacey's Buffet, Inc., 801 West Bay Drive, Suite
704, Largo, Florida 34640; telephone (813) 581-4492.
No persons have been authorized to give any information or to make any
representations other than those contained in this Prospectus in connection with
the offering of securities made hereby and, if given or made, such information
or representations must not be relied upon as having been authorized by the
Company, the Stockholders Registering Shares or any other person. This
Prospectus does not constitute an offer to sell, or a solicitation of an offer
to buy, any securities, or the solicitation of a proxy, by anyone, in any
jurisdiction to or from any person to whom it is not lawful to make such offer
or solicitation in such jurisdiction. Neither the delivery of this Prospectus
nor any distribution of securities made hereunder shall under any circumstances
create an implication that there has been no change in the affairs of the
Company since the date hereof or that the information herein is correct as of
any time subsequent to its date.
THE COMPANY
The Company owns and operates a chain of 24 buffet-style restaurants
located in Florida and the northeastern United States under the name "Stacey's
Buffet". The Company utilizes the self-service buffet format in which customers
select the items and portions of their choice for a low fixed-price meal, which
management believes is particularly appealing to families, retirees and
price-conscious customers, generally. The Company's restaurants feature a wide
variety of menu items presented in the modern scatter-bar format, providing
complete, high quality meals with no extra charge for additional helpings. There
are 20 stores in Florida and four stores located in the northeast corridor of
the United States. In addition, the Company has three restaurants that operate
under license agreements. The style and decor of Company-owned and licensee
restaurants are designed to create a casual atmosphere and are particularly
attractive to families and senior citizens.
The Company has established strict standards and quality controls focusing
on the principal aspects of restaurant operations and customer satisfaction,
including standards for ingredients in recipes, prepared food quality and
presentation, the appearance and maintenance of the premises, and employee
appearance and conduct.
The Company's business is affected by changes in eating habits of the
public, changes in local, regional and national economic conditions, demographic
trends and the level of competition provided by nearby restaurants. The
Company's restaurants compete not only with other buffet-style restaurants, but
with a variety of other types of restaurants, including conventional full
service restaurants, fast food restaurants and traditional cafeteria
restaurants. See "Risk Factors - Competition."
The Company was incorporated under the name Homestyle Buffet, Inc. and was
incorporated under the laws of the State of Florida in August 1986. In December,
1993, Homestyle Buffet, Inc. merged (the "Merger") with Stacey Lynn Corporation,
Casmo of Florida, Inc., DMY, Inc., and Stacey Lynn of Lakeland, Inc. (the "S-L
Group"), adopting the name Stacey's Buffet, Inc. The principal executive offices
of the Company are located at 801 West Bay Drive, Suite 704, Largo, Florida
34640. The Company's telephone number is (813) 581-4492.
RISK FACTORS
The securities offered hereby are speculative in nature and involve a high
degree of risk, including, but not limited to, the risk factors described below.
Each prospective investor should carefully consider the following risk factors
before making an investment decision. This Prospectus contains, in addition to
historical information, forward looking statements that involve risks and
uncertainties. Those statements appear in a number of places in this Prospectus
and include statements regarding the intent, belief or current expectations of
the Company, its directors or officers, with respect to: (i) future revenues,
(ii) the future of the buffet-style restaurant industry (iii) the adoption of
the Company's Shareholder Rights Plan, and (iv) other matters. The Company's
actual results could differ materially from those anticipated in the forward
looking statements as a result of certain factors, including those discussed
below and elsewhere in this Prospectus.
Absence of Profitable Operations; Negative Working Capital
As reflected in the Company's financial statements, the Company has
experienced aggregate losses in excess of $22,000,000 during the three year
period ended January 3, 1996. Although approximately $10,000,000 of the losses
was attributable to the Company's reserve (the "Reserve") for restaurant
closings and renovations and $4,475,000 was attributable to the implementation
of the new accounting standard, and the decrease in value of the Company's
assets, the Company has sustained operating losses in each of the past [5]
years, including an operating loss of $8,109,179 during the 1995 fiscal year.
The Company's losses have been accompanied by reductions in the Company's
working capital. The Company had negative working capital of $7,987,733 at
December 29, 1993, negative working capital of $13,574,721 at December 28, 1994,
and negative working capital of $6,059,799 at January 3, 1996. The Company's
continuing losses and negative working capital have substantially impaired its
financial condition generally.
If the Company is unable to generate a positive cash flow in the near
future, the risk that the Company's financial resources will be insufficient to
finance the Company's working capital needs will continue to increase. Under
such circumstances, the Company would need to raise additional capital, reduce
operations or take other steps to achieve positive cash flow, which could
include filing for protection from creditors while the Company reorganizes it
operations, a merger, or the sale of all or substantially all of the Company's
assets. There can be no assurance that such steps would be successful or that
such steps, if taken, would be on terms that are advantageous to the Company or
its equity holders.
Declining Restaurant Sales, Year to Year
For the fiscal years 1992 compared to 1993, and 1994 compared to 1995,
comparable sales per restaurant declined approximately 18% and 3%, respectively.
For fiscal years 1993 compared to 1994, comparable sales per restaurant
increased approximately 3%. The phrase "comparable sales per restaurant" refers
to sales for the same restaurants which were open for the full time periods
being compared. Management believes that the decline resulted from several
factors, including: (i) substantially increased competition; (ii) a legacy of
poor restaurant operations, particularly among the restaurants operated under
the Homestyle Buffet name; and (iii) the severe snowstorms affecting the
Company's Northeastern stores during February 1993, March 1994, and November and
December of 1995. Management notes that the restaurant conversion strategy,
which was pursued after the Company merged with the S-L Group, did not halt the
sales decline, although sales increases were temporarily realized in the
converted and/or renovated stores. If this sales decline continues, there can be
no assurance that the Company's operations will be profitable, or that the
Company will have sufficient funds available to continue its operations.
Risks of Restaurant Industry; Seasonality
The restaurant industry is characterized by certain risks, such as
inflation (including changes in food and labor costs), fluctuating interest and
insurance rates, and state and local regulations and licensing requirements. The
success of restaurants is further dependent upon such factors as the local
competitive environment (as described more fully, below), the popularity of the
type of food served, the demand for restaurant meals, generally, and the ability
of a restaurant chain to attract both repeat and new customers. Various factors
beyond the Company's control could materially affect its ability to offer meals
at competitive prices, including increases in food costs, increases in wage
rates, or significant changes in worker's compensation and health care costs.
The restaurant industry is subject to numerous federal, state and local
regulations, including those relating to the preparation and sale of food, and
building and zoning requirements. The Company will be subject to laws governing
relationships with employees including increased minimum wage requirements,
overtime, working conditions and citizenship requirements.
The Company has historically experienced seasonal fluctuations in sales
volume, liquidity and profitability, with the winter months reflecting increases
over the summer months. This shift is due, primarily, to the preponderance of
the Company's best-performing restaurants being located in Florida, which has
historically enjoyed a substantial increase in population and tourist-related
business during the winter months.
Competition
The Company's restaurants compete with numerous other restaurants,
including many that are part of larger restaurant chains having longer operating
histories and greater financial resources than the Company. The competition
includes various restaurants offering meals at low prices, including cafeterias
and other buffets. While it is not possible to separate the actual effect of
competition from other variables influencing restaurant sales and profits,
management believes that competition, particularly from cafeterias and buffets,
may increase over time and that such competition could reduce the Company's
revenues and profits, if any. The number of buffet restaurants with operations
generally similar to the Company's has grown considerably in the last several
years, and the Company believes competition among buffet-style restaurants with
similar concepts can be expected to intensify.
Utilization of Net Operating Loss
The net operating loss carry forward of the Company for regular federal
income tax purposes was approximately $30,629,000 at January 3, 1996. Depending
upon the interpretation of the Internal Revenue Code and the regulations
promulgated thereunder, regarding whether significant shifts in ownership of the
Company's securities occurred, the Company's merger with the S-L Group in
December 1993 could be interpreted as an ownership change pursuant to Section
382(g)(1) of the Code. Such ownership change could adversely affect the ability
of the Company to fully utilize the S-L Group's net operating losses to offset
future income. If such an ownership change were deemed to have occurred, the
Company would be limited in the amount of income that could be offset by its net
operating loss carry-forward and the operating cash flow of the Company would be
reduced for all affected periods after the Merger. This limitation is calculated
by multiplying the price of the S-L Group's Common Stock as of the date of the
ownership change by the applicable adjusted federal long-term tax-exempt
interest rate (which as of October 1993 was 5.27%).
Dependence on Key Executive Officers
The Company is highly dependent upon the business expertise and judgment
of its senior management team, particularly that of Stephen J. Marrier, Chief
Executive Officer. The loss of the services of Mr. Marrier could have a material
adverse effect on the success and viability of the Company and its business. The
Company does not have a long term employment Agreement with Mr. Marrier, nor
does it maintain a key person life insurance policy on him.
Shares Eligible for Future Sale
Up to an additional 592,700 options and warrants to purchase 592,700
shares of the Common Stock of the Company will be exercisable and available for
sale into the public market at various times in the future. An additional
400,000 shares held by Mr. Duff, former Chairman of the Board of the Company,
will become eligible for sale into the public market on February 12, 1999. Sales
of substantial amounts of such shares in the public market could exert downward
pressure on the trading price of the Common Stock.
Current Prospectus and State Securities Law Restrictions
The purchaser of securities offered pursuant to this Prospectus, and the
Registration Statement of which it is a part, will have the right to sell such
securities only if the Company maintains the currency of its filings with the
Securities and Exchange Commission, and only if such securities are qualified
for sale under the securities laws of the state in which the purchaser resides,
or is exempt from such qualification. There can be no assurance that the Company
will keep this Prospectus, or any other prospectus covering such securities,
current, and the Company can give no assurance that it will be able to cause the
securities to be qualified for sale under the securities laws of any state in
which a subsequent purchaser resides. As a result, a purchaser of such
securities may be deprived of any value if a current prospectus covering the
securities is not effective or if such securities are not qualified (or exempt
from such qualification requirements) in the state in which a subsequent
purchaser resides.
Adoption of Shareholder Rights Plan
On May 6, 1996, the Board of Directors of the Company adopted a
Shareholder Rights Plan (the "Rights Plan"). Management believes that the Rights
Plan will protect the interests of the shareholders by discouraging unfair or
inadequate takeover proposals and practices by encouraging a potential acquiror
to negotiate with the Board of Directors. The Rights Plan may, however, have a
material adverse effect on any potential takeover of the Company.
Possible Delisting of Securities from Nasdaq System; Risks Related to Low-Priced
Stocks.
The Company's Shares will be listed on the Nasdaq SmallCap on the date of
this Prospectus. However, in order to continue to be listed on the Nasdaq
SmallCap, a company must maintain $2,000,000 in total assets, a $2,000,000
market value of the public float and $1,000,000 in total capital and surplus. In
addition, continued inclusion requires two market makers and a minimum bid price
of $1.00 per share; provided, however, that if a company falls below such
minimum bid price, it will remain eligible for continued inclusion on the Nasdaq
SmallCap if the market value of the public float is at least $1,000,000 and the
company has $2,000,000 in capital and surplus. The failure to meet these
maintenance criteria in the future may result in the delisting of the Company's
securities from the Nasdaq SmallCap and trading, if any, in the Company's
securities would thereafter be conducted in the non-Nasdaq over-the-counter
market. In addition, new Nasdaq regulations have been proposed which would
require automatic delisting if the Company's share price falls below $1.00 and
which abolish the alternative public float and capital and surplus tests. If the
Company's share price remains at current levels and such regulations are
adopted, the Company will be required to implement a reverse stock split or be
delisted. It should be noted, however, that there can be no assurance that the
implementation of a reverse stock split will result in an increase in the share
price of the Company's stock. As a result of such delisting, an investor may
find it more difficult to dispose of, or to obtain accurate quotations as to the
market value of, the Company's securities. In addition, if the Shares were to
become delisted from trading on the Nasdaq SmallCap and the trading price of the
Shares were to fall below $5.00 per share, trading in the Shares would also be
subject to the requirements of certain rules promulgated under the Exchange Act,
which require additional disclosure by broker-dealers in connection with any
trades involving a stock defined as a penny stock (generally, any non-Nasdaq
equity security that has a market price of less than $5.00 per share, subject to
certain exceptions). Such rules require the delivery, prior to any penny stock
transaction, of a disclosure schedule explaining the penny stock market and the
risks associated therewith, and impose various sales practice requirements on
broker-dealers who sell penny stocks to persons other than established customers
and accredited investors (generally institutions). For these types of
transactions, the broker-dealer must make a suitability determination for the
purchaser and have received the purchaser's written consent to the transaction
prior to sale. The additional burdens imposed upon broker-dealers by such
requirements may discourage them from effecting transactions in the Shares,
which could severely limit the liquidity of the Shares and the ability of
purchasers in this offering to sell the Shares in the secondary market.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Shares by
the Stockholders Registering Shares. The Company is not paying any underwriting,
brokerage or other commissions in any form whatsoever in connection with the
offer and sale of the Shares.
STOCKHOLDERS REGISTERING SHARES
The following table sets forth certain information as of January 6, 1997,
and as adjusted to reflect the sale of the Shares offered hereby, with respect
to the beneficial ownership of each Selling Stockholder.
<TABLE>
<CAPTION>
Shares Beneficially Owned Shares Beneficially Owned
Prior to Registration (1) Shares After Registration
------------------------- Being -------------------------
Name Number (2) Percent Registered (3) Number (2) Percent
---- ---------- ------- -------------- ---------- -------
<S> <C> <C> <C> <C> <C>
Thomas Frank 8,400 * 8,400 8,400 *
Edward P. Grace 40,000 1.6% 40,000 40,000 1.6%
Stephen J. Marrier (4) 99,977 3.9% 171,000 99,977 3.9%
Sonya Money (5) 26,000 1.0% 20,000 26,000 1.0%
Peoples Service Drugstore, Inc. (6) 10,000 * 10,000 10,000 *
PRN Investments 5,700 * 5,700 5,700 *
Leslie A. Spang (7) 21,400 * 14,000 21,400 *
Robert J. Stetson 22,600 * 22,600 22,600 *
Unlimited Workspace, Inc. (6) 15,000 * 15,000 15,000 *
Upper New York Realty (6) 12,000 * 12,000 12,000 *
Westview Mall Associates 5,000 * 5,000 5,000 *
Total 266,077 10.7% 323,700 266,077 10.7%
=================================================================
<FN>
- ----------------------------
<F1> * Less than one percent (1%).
<F2> (1) Unless otherwise stated, assumes no exercise of options or warrants
outstanding or to be outstanding.
<F3> (2) Includes shares subject to warrants and stock options exercisable within
sixty (60) days of the date hereof.
<F4> (3) Includes shares issuable upon the exercise of unvested or currently
unexercisable options and warrants.
<F5> (4) Stephen J. Marrier served as a director of the Company from December 1992
through November 1994. In February 1995, Mr. Marrier was named chief
executive officer of the Company. In July 1995, Mr. Marrier became the
chairman of the board of the Company.
<F6> (5) Ms. Money retired as Executive Vice President and corporate Secretary in
December 1995.
<F7> (6) Shares issued in connection with the settlement of claims or potential
claims arising from the Company's closure of 12 restaurants during 1995.
<F8> (7) Mr. Spang became chief financial officer of the Company in January 1994
and a director of the Company in May 1994. Mr. Spang resigned as an
officer and director of the Company in December 1995.
</FN>
</TABLE>
PLAN OF DISTRIBUTION
The Company has not entered into any Agreement, arrangement or
understanding with any broker or dealer in connection with the offer and sale of
the Shares. The Stockholders Registering Shares may, however, enter into
individual agreements, arrangements or understandings with any broker or dealer
prior to the effective date of the Registration Statement with respect to the
Shares. As of the effective date of the Registration Statement, the Company is
not aware of any such agreement, arrangement or understanding with any broker or
dealer.
DESCRIPTION OF SECURITIES
The Company is authorized to issue 25,000,000 shares of Common Stock, par
value $0.01 per share. As of the date of this Prospectus, there were 2,493,217
shares of Common Stock outstanding, owned of record by approximately 718
stockholders. The Company believes that there are approximately 3,500 beneficial
holders of the Company's Common Stock.
Holders of shares of Common Stock are entitled to one vote for each share
held of record on all matters voted upon by stockholders. All shares have equal
rights to participate in dividends when declared, and, in the event of
liquidation, in the net assets of the Company available for distribution to
stockholders. The holders of the Common Stock have no preemptive, conversion or
redemption rights. The shares of Common Stock offered hereby, when duly issued
and sold as contemplated by this Prospectus will be fully paid and
non-assessable. The voting rights of the holders of the Common Stock are
non-cumulative, which means that more than fifty percent of the shares of Common
Stock voting for the election of directors, can elect all of the directors if
they choose to do so.
LEGAL MATTERS
Certain legal matters relating to the Common Stock will be passed upon for
the Company by Partridge, Snow & Hahn, Boston, Massachusetts.
EXPERTS
The financial statements of the Company as of January 3, 1996 and December
28, 1994, and for each of the years in the three-year period ended January 3,
1996, have been incorporated by reference herein and in the registration
statement in reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
The report of KPMG Peat Marwick LLP covering the January 3, 1996 financial
statements contains an explanatory paragraph that states that the Company
adopted in 1995 the provisions of the Financial Accounting Standards Board's
Statement of Financial Accounting Standard No. 121, Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of.
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Indemnification may be permitted to directors, officers, employees and
agents of a corporation under certain circumstances and subject to certain
limitations pursuant to Section 607.0850, Florida Statutes, the Company's Bylaws
and certain indemnity agreements.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company,
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The Company will bear all expenses in connection with the issuance and
distribution of the Shares, including those set forth below. None of such
expenses will be borne by the Stockholders Registering Shares.
<TABLE>
<CAPTION>
Items Amounts
----- ------------
<S> <C>
Securities and Exchange Commission Registration Fee $ 61.31
"Blue Sky" Fees and Expenses 3,000.00*
Legal Fees and Expenses 11,000.00*
Accounting Fees and Expenses 5,000.00*
Miscellaneous Expenses 1,000.00*
------------
Total $ 20,061.31*
<FN>
- -------------------
<F1> * - Estimated
</FN>
</TABLE>
Item 15. Indemnification of Directors and Officers.
(a) Section 607.0850, Florida Statutes, permits, and in some cases
requires, indemnification of directors, officers, employees and agents of a
corporation under certain circumstances and subject to certain limitations.
(b) Under certain circumstances, the bylaws of the Company require
indemnification beyond the minimum statutory requirement of any person who was
or is a party to any proceeding by reason of the fact that he is or was a
director or officer of the Company, or is or was serving at the request of the
Company as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise.
(c) The Company has entered into Indemnity Agreements with the following
officers and directors of the Company: Stephen J. Marrier, Amos Money, Daniel J.
Sullivan, Garrett B. Hunter, Peter J. Hurley, John F. Robenalt, Scott W. Ryan,
Maureen A. Jack and Douglas Money. The Indemnity Agreements create certain
indemnification obligations of the Company in favor of such officers and
directors in connection with their service as directors and/or officers, and, as
permitted by applicable law, clarifies and expands the circumstances under which
they will be indemnified.
Item 16. Exhibits and Financial Statement Schedules.
See attached list of Exhibits
Item 17. 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 a
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 twenty
percent 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) above do not apply
if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
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.
(4) If the Registrant is a foreign private issuer, to file a
post-effective amendment to the Registration Statement to include any financial
statements required by Rule 3-19 of Regulation S-K at the start of any delayed
offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Securities Act need
not be furnished, provided, that the Registrant includes in the Prospectus, by
means of a post-effective amendment, financial statements required pursuant to
this paragraph (a)(4) and other information necessary to ensure that all other
information in the Prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Securities Act or Rule 3-19 of Regulation S-K if such financial
statements and information are contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the Form F-3.
(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 15(b) 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) The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the Prospectus, to each person to whom the Prospectus is sent or
given, the latest annual report, to security holders that are incorporated by
reference in the Prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X is not set forth in the Prospectus, to deliver, or cause to be
delivered to each person to whom the Prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
Prospectus to provide such interim financial information.
(d) 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
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tampa, State of Florida, on February 7, 1997.
STACEY'S BUFFET, INC.
By: /s/ Stephen J. Marrier
----------------------------------------
Stephen J. Marrier, CEO
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature * Title Date
----------- ----- ----
<S> <C> <C>
/s/ Stephen J. Marrier Director, Chief Executive Officer February 7, 1997
- -------------------------
Stephen J. Marrier
/s/ Daniel J. Sullivan Chief Financial Officer February 7, 1997
- -------------------------
Daniel J. Sullivan
/s/ Garrett B. Hunter Director February 7, 1997
- -------------------------
Garrett B. Hunter
Director
- -------------------------
Peter J. Hurley
/s/ John F. Robenalt Director February 7, 1997
- -------------------------
John F. Robenalt
Director
- -------------------------
Scott W. Ryan
<FN>
- -------------------
<F1> * - Grant of Power of Attorney to Facilitate Amendment of this Registration
Statement: Each person whose signature appears above hereby authorizes and
constitutes and appoints as his true and lawful attorney-in-fact, Daniel
J. Sullivan, with full power of substitution, for him in any and all
capacities, to sign and file pursuant to the requirements of the
Securities Act, any amendments to this Registration Statement, together
with exhibits thereto and other documents in connection therewith, and
incorporating such changes as the said attorney-in-fact deems appropriate.
</FN>
</TABLE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
No. Description Page No.
------- ----------- ----------
<C> <C> <C>
4.1 Common Stock Warrant of Stacey's Buffet, Inc.,
dated March 1, 1995 entitling The Marrier Group,
Inc. to purchase 200,000 shares of the Company's
Common stock. Filed herewith.
4.2 Common Stock Warrant of Stacey's Buffet, Inc.,
dated January 3, 1996 entitling Stephen J. Marrier
to purchase 600,000 shares of the Company's Common
Stock. Filed herewith.
5 Opinion of Partridge, Snow & Hahn. Filed herewith.
10 Form of Indemnity Agreement dated June 21, 1996
between the Company and the following officers and
directors: Stephen J. Marrier, Chairman and Chief
Executive Officer, Director Amos Money, President
and Chief Operating Officer Daniel J. Sullivan,
Chief Financial Officer Douglas Money, Vice
President of Operations/Purchasing Maureen A. Jack,
Secretary Scott W. Ryan, Director John F. Robenalt,
Director Peter J. Hurley, Director Garrett B.
Hunter, Director
23.1 Consent of KPMG Peat Marwick, L.L.P., independent
accountants to Stacey's Buffet, Inc. Filed
herewith.
23.2 Consent of Partridge, Snow & Hahn (contained in
Exhibit 5)
24 Power of Attorney (included in the signature pages
hereto).
</TABLE>
Exhibit 4.1
-----------
STACEY'S BUFFET, INC.
COMMON STOCK WARRANT
200,000 Shares of Common Stock March 1, 1995
THIS CERTIFIES THAT, for value received, THE MARRIER GROUP, INC., a
Florida corporation, or registered assigns (the "Holder"), is entitled to
subscribe for and purchase from STACEY'S BUFFET, INC., a Florida corporation
(the "Company"), at a price of $0.47 per share (the "Warrant Purchase Price") in
accordance with the vesting provisions of paragraph 2 hereof until the
expiration date of March 1, 2005, up to 200,000 fully paid and non-assessable
shares (the "Shares") of the Company's common stock, par value $0.01 per share
(the "Common Stock"), subject, however, to the provisions and upon the terms and
conditions hereinafter set forth.
1. Exercise of Warrant. The rights represented by this Warrant may be
exercised by the Holder in accordance with the vesting and purchase price
provisions of paragraph 2 hereof, in whole or in part (but not as to a
fractional share of Common Stock), by the surrender of this Warrant (properly
endorsed if required) at the office of any duly appointed transfer agent for the
Common Stock or at the office of the Company at 801 West Bay Drive, Suite 704,
Largo, Florida 34640 and upon payment to the Company, or for the account of the
Company, by cash or by certified check or bank draft, of the Warrant Purchase
Price (as hereinafter defined) for such shares. The Company agrees that the
shares so purchased shall be and be deemed to be issued to the Holder as the
record owner of such shares as of the close of business on the date on which
this Warrant shall have been surrendered and payment made for such shares as
aforesaid. Certificates for the shares so purchased shall be delivered to the
Holder within a reasonable time, not exceeding 10 days, after the rights
represented by this Warrant shall have been so exercised, and, unless this
Warrant has expired, a new Warrant representing the number of shares, if any,
with respect to which this Warrant shall not then have been exercised shall also
be issued to the Holder within such time.
In the event that the Company does not deliver the shares within the 10
day period specified, above, the Holder shall have the right to immediately
petition a court of competent jurisdiction for an order mandating the immediate
issuance of such shares, and the Company agrees not to contest the issuance of
such an order, it being agreed that any claims by the Company may not be
asserted against, or in any manner to impede, the Company's obligations
hereunder.
2. Vesting. The vesting of this Warrant to purchase the Shares shall be in
accordance with the following schedule:
(a) Provided that the Consulting Agreement by and between the
Company and The Marrier Group, Inc. dated March 1, 1995 (the "Consulting
Agreement") has not been previously terminated, 100,000 Shares shall be vested
on and after June 1, 1995; and
(b) Provided that the Consulting Agreement has not been previously
terminated, 100,000 Shares shall be vested on and after September 1, 1995.
3. Shares to be Issued; Reservation of Shares. The Company covenants and
agrees that all shares which may be issued upon the exercise of the rights
represented by this Warrant will, upon issuance, be validly authorized, duly
issued and outstanding, fully paid and non-assessable, and free from all taxes,
liens and charges with respect to the issue thereof. The Company further
covenants and warrants that it will from time to time take all action required
to assure that the par value per share of the Common Stock is at all times equal
to or less than the effective Warrant Purchase Price. The Company further
covenants and agrees that, during the period within which the rights represented
by this Warrant may be exercised, the Company will at times have authorized and
reserved a sufficient number of shares of its Common Stock to provide for the
exercise of the rights represented by this Warrant and will at its expense
expeditiously upon each such reservation of shares procure the listing thereof
(subject to issuance or notice of issuance) on all stock exchanges, if any, on
which the Common Stock may then be listed.
4. Adjustment of Warrant Purchase Price. The Warrant Purchase Price in
effect from time to time shall be subject to adjustment as follows:
(a) Issues of Stock. If and whenever the Company shall issue any
shares of its Common Stock for a consideration per share which is less than the
Warrant Purchase Price in effect immediately prior to such issue (except upon
exercise of employee stock options granted pursuant to a plan qualified under
the Internal Revenue Code, as amended, as an incentive stock option, provided
that the total number of shares issued or issuable under options granted
pursuant to the plan shall not exceed 5% of the outstanding Common Stock of the
Company), the Warrant Purchase Price shall be reduced to a price determined by
dividing (i) the sum of (A) the number of shares of Common Stock outstanding
immediately prior to such issue multiplied by the Warrant Purchase Price in
effect immediately prior to such issue, plus (B) the consideration, if any,
received by the Company upon such issue, by (ii) the number of shares of Common
Stock outstanding immediately after such issue. No such adjustment shall be made
in an amount less than $.10, but any such amount shall be carried forward and
shall be given effect in connection with the next subsequent adjustment. For the
purposes of this subparagraph (a), the following clauses shall also be
applicable:
(1) Convertible Securities, Options and Rights. If the Company
shall issue any stock, security, obligation, option, or other right which
directly or indirectly may be converted into, exchanged for, or satisfied in
shares of Common Stock (except employee stock options issued within the
limitations of the exception described in subparagraph (a) of this paragraph 4),
the Common Stock issuable upon exercise of such rights shall thereupon be deemed
to have been issued and to be outstanding, and the consideration received by the
Company therefor shall be deemed to include the sum of the consideration
received for the issue of such rights and the minimum additional consideration
payable upon the exercise of such rights. No further adjustment shall be made
for the actual issuance of Common Stock upon the exercise of any such right. If
the provisions of any such rights with respect to purchase price or shares
purchasable shall change or expire, any adjustment previously made hereunder for
such rights shall be readjusted to such as would have obtained on the basis of
the rights as modified by such change or expiration.
(2) Stock Dividends and Splits. In case the Company shall
declare a dividend or other distribution payable in Common Stock or shall
subdivide its Common Stock into a greater number of shares of Common Stock, such
issue of Common Stock shall be deemed to have been made without consideration.
(3) Consideration. In case the Company shall issue shares of
its Common Stock for a consideration wholly or partly other than cash, the
amount of the consideration other than cash received by the Company shall be
deemed to be the lesser of: (i) the fair market value on the issue date of the
Common Stock so issued by the Company, or (ii) the fair value of such
consideration as determined by the Board of Directors of the Company. In case
Common Stock shall be deemed to have been issued upon the issuance by the
Company of any right to acquire such Common Stock in connection with the issue
or sale of other securities of the Company, together comprising one integral
transaction in which no specific consideration is allocated to rights, such
rights shall be deemed to have been issued without consideration. Consideration
received by the Company for issuance of its Common Stock shall be determined in
all cases without deduction therefrom of any expenses, underwriting commissions
or concessions incurred in connection therewith.
(4) Record Dates. In case the Company shall take a record of
the holders of its Common Stock for the purpose of determining holders entitled
to: (i) receive a dividend or other distribution payable in Common Stock, or
(ii) subscribe for or purchase Common Stock, then such record date shall be
deemed to be the date of the issue or sale of the shares of Common Stock issued
upon the declaration of such dividend or the making of such distribution or
deemed to have been issued upon the granting of such right of subscription or
purchase, as the case may be.
(5) Treasury Stock. The number of shares of Common Stock
outstanding at any given time shall include shares owned or held by or for the
account of the Company in its treasury, and the disposition of any such shares
so owned or held shall not be considered an issue of Common Stock.
(b) Stock Rights. In case the Company shall sell shares of its
Common Stock upon the exercise of subscription rights granted to holders of its
Common Stock (including shares sold to underwriters after failure of
subscriptions therefor pursuant to such rights) then, in addition to any
adjustment pursuant to subparagraph (a) of this paragraph 4, forthwith upon such
sale the Warrant Purchase Price shall be reduced to a price determined as
follows (calculated to the nearest cent), but only if the price so determined is
lower than the Warrant Purchase Price existing at the time of such sale after
making said adjustment pursuant to subparagraph (a):
The Warrant Purchase Price in effect immediately prior to the time of such
sale shall be multiplied by a fraction, the numerator of which shall be (i) the
sum of (A) the number of shares of Common Stock outstanding immediately prior to
such sale multiplied by the fair market value (as hereafter defined) per share
immediately prior to the grant of such subscription rights and (B) the
consideration received by the Company upon such sale, divided by (ii) the total
number of shares of Common Stock outstanding immediately after such sale, and
the denominator of which shall be the fair market value (as hereafter defined)
per share immediately prior to the grant of such subscription rights.
(c) Distributions. In case the Company shall declare a dividend on
its Common Stock otherwise than in shares of its Common Stock or securities
convertible into its Common Stock, the Warrant Purchase Price then in effect
shall be reduced by an amount equal to, in the case of a cash dividend, the
amount thereof payable per share of Common Stock or, in the case of any other
dividend, the fair value thereof per share of Common Stock as determined by the
Board of Directors of the Company. Such reductions shall take effect as of the
record date for determining stockholders entitled to such dividend.
(d) Stock Combinations. In case the Company shall combine or
consolidate all of the outstanding Common Stock of the Company, by
reclassification, reverse split or otherwise, proportionately into a smaller
number of shares, the number of shares purchaseable hereunder immediately prior
to such combination or consolidation shall be proportionately decreased and the
Warrant Purchase Price in effect immediately prior to such combination or
consolidation shall be proportionately increased.
(e) Reorganizations. If any capital reorganization or
reclassification of the capital stock of the Company, or consolidation or merger
of the Company with another corporation, or the sale of all or substantially all
of its assets to another corporation shall be effected, then, as a condition of
such reorganization, reclassification, consolidation, merger or sale, lawful and
adequate provision shall be made whereby the Holder shall thereafter have the
right to purchase and receive upon the basis and upon the terms and conditions
specified herein and in lieu of the shares of the Common Stock of the Company
immediately theretofore issuable upon exercise of the rights represented hereby,
such shares of stock, securities or assets as may be issued or payable with
respect to or in exchange for a number of outstanding shares of such Common
Stock equal to the number of shares of such Common stock immediately theretofore
issuable upon exercise of the rights represented hereby had such reorganization,
reclassification, consolidation, merger or sale not taken place; and in any such
case appropriate provisions shall be made with respect to the rights and
interests of each Holder to the end that the provisions hereof (including
without limitation provisions for adjustment of the Warrant Purchase Price and
of the number of shares issuable upon the exercise of this warrant) shall
thereafter be applicable, as nearly as may be, in relation to any shares of
stock, securities or assets thereafter deliverable upon the exercise hereof. The
Company shall not effect any such consolidation, merger or sale unless prior to
or simultaneously with the consummation thereof the corporation (if other than
the Company) resulting from such consolidation or merger or the corporation
purchasing such assets shall assume (by a written instrument executed and mailed
by registered mail or delivered to each registered Holder at the last address of
such holder appearing on the books of the Company) the obligation of the Company
to deliver to such holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, such holder may be entitled to
purchase.
(f) Notice of Adjustment. Upon each adjustment of the Warrant
Purchase Price, the Company shall give prompt written notice thereof addressed
to the registered Holder at the address of such holder as shown on the records
of the Company, which notice shall state the Warrant Purchase Price resulting
from such adjustment and the increase or decrease, if any, in the number of
shares of Common Stock (or, in the case of an adjustment under subparagraph (e),
any other stock, securities or assets) issuable upon the exercise of this
Warrant, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based.
5. Notice of Capital Changes. In case at any time:
(a) the Company shall pay any dividend payable in stock upon its
Common Stock or make any distribution to the holders of its Common Stock;
(b) the Company shall offer for subscription pro rata to the holders
of its Common Stock any additional shares of stock of any class or other rights;
(c) there shall be any capital reorganization or reclassification of
the capital stock of the Company, or consolidation or merger of the Company
with, or sale of all or substantially all of its assets to, another corporation;
or
(d) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to the Holder:
(i) at least 10 days' prior written notice of the date on which the books of the
Company shall close or a record shall be taken for such dividend, distribution
or subscription rights or for determining rights to vote in respect of any such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, and (ii) in the case of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, at least 20 days' prior written notice of the date when the same
shall take place. Such notice in accordance with the foregoing clause (i) shall
also specify, in the case of any such dividend, distribution or subscription
rights, the date on which the holders of Common Stock shall be entitled thereto,
and such notice in accordance with the foregoing clause (ii) shall also specify
the date on which the holders of Common Stock shall be entitled to exchange
their Common Stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, as the case may be. Each such written notice shall be
given by first class mail, postage prepaid, addressed to the Holder at the
address of such holder as shown on the books of the Company.
6. Common Stock. As used herein in the term "Common Stock" shall mean and
include the Company's Common Stock authorized on the date of the original issue
of the Warrants and shall also include any capital stock of any class of the
Company thereafter authorized which shall not be limited to a fixed sum or
percentage in respect of the rights of the holders thereof to participate in
dividends and in the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of the Company; provided that the shares
which may be purchased pursuant to this Warrant shall include only shares of the
class of Common Stock, $0.01 par value referred to at the beginning of this
agreement or, in the case of any reorganization, reclassification,
consolidation, merger or sale of assets of the character referred to in
subparagraph 4(e) hereof, the stock, securities or assets provided for in such
subparagraph.
7. Transfer. Subject to the provisions of the Agreement, this Warrant and
all rights hereunder are transferable, in whole or in part, at the offices
referred to in paragraph 1 hereof by the Holder in person or by duly authorized
attorney, upon surrender of this Warrant properly endorsed. Each taker and
Holder, by taking or holding the same, consents and agrees that this Warrant,
when endorsed for transfer by the attachment of stock powers or otherwise, shall
be deemed negotiable and that when this Warrant is so endorsed, the Holder may
be treated by the Company and all other persons dealing with this Warrant as the
absolute owner hereof for any purposes and as the person entitled to exercise
the rights represented by this Warrant or to the transfer hereof on the books of
the Company, any notice to the contrary notwithstanding; but until each transfer
on such books, the Company may treat the registered Holder as the owner hereof
for all purposes.
8. Exchange. This Warrant is exchangeable, upon its surrender at the
offices referred to in paragraph 1, for new Warrants of like tenor representing
in the aggregate the right to subscribe for and purchase the number of shares
which may be subscribed for and purchased hereunder, each of such new Warrants
to represent the right to subscribe for and purchase such number of shares as
shall be designated by the Holder at the time of such surrender. Upon receipt of
evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and, in the case of any such loss, theft or
destruction, upon delivery of a bond of indemnity satisfactory to the Company,
or, in the case of any such mutilation, upon surrender or cancellation of this
Warrant, the Company will issue to the Holder a new warrant of like tenor, in
lieu of this Warrant, representing the right to subscribe for and purchase the
number of shares which may be subscribed for and purchased hereunder.
9. Registration of Shares. The Company hereby agrees to register the
Shares issuable or issued hereunder under the Securities Act of 1933, as
amended, for sale into the public markets as soon as practicable, and in no
event later than November 30, 1996.
10. Substitution. This Warrant is intended to replace that certain Stock
Option Agreement originally issued by the Company, dated even herewith. The
Holder has tendered the original Stock Option Agreement to the Company for
termination.
IN WITNESS WHEREOF, Stacey's Buffet, Inc. has caused this Warrant to be
signed by its duly authorized officers as of the date hereof.
STACEY'S BUFFET, INC.
By: /s/ DANIEL J. SULLIVAN
------------------------------------
Daniel J. Sullivan, Treasurer
Attest:
/s/ MAUREEN JACK
- -----------------------------------
Maureen Jack, Secretary
Exhibit 4.2
-----------
STACEY'S BUFFET, INC.
COMMON STOCK WARRANT
600,000 Shares of Common Stock January 3, 1996
THIS CERTIFIES THAT, for value received, STEPHEN J. MARRIER or registered
assigns (the "Holder"), is entitled to subscribe for and purchase from STACEY'S
BUFFET, INC., a corporation incorporated under the laws of Florida (hereinafter
called the "Company"), at the price of $0.47 per share (the "Warrant Purchase
Price"), in accordance with the vesting provisions of paragraph 2 hereof, until
the expiration date of January 3, 2006, up to 600,000 fully paid and
non-assessable shares of the Company's common stock, par value $0.01 per share
(the "Common Stock"), subject, however, to the provisions and upon the terms and
conditions hereinafter set forth.
1. Exercise of Warrant. The rights represented by this Warrant may be
exercised by the Holder in accordance with the vesting provisions of paragraph 2
hereof, in whole or in part (but not as to a fractional share of Common Stock),
by the surrender of this Warrant (properly endorsed if required) at the office
of any duly appointed transfer agent for the Common Stock or at the office of
the Company at 801 West Bay Drive, Suite 704, Largo, Florida 34640 and upon
payment to the Company, or for the account of the Company, by cash or by
certified check or bank draft, of the Warrant Purchase Price for such shares.
The Company agrees that the shares so purchased shall be and be deemed to be
issued to the Holder as the record owner of such shares as of the close of
business on the date on which this Warrant shall have been surrendered and
payment made for such shares as aforesaid. Certificates for the shares so
purchased shall be delivered to the Holder within a reasonable time, not
exceeding 10 days, after the rights represented by this Warrant shall have been
so exercised, and, unless this Warrant has expired, a new Warrant representing
the number of shares, if any, with respect to which this Warrant shall not then
have been exercised shall also be issued to the Holder within such time.
In the event that the Company does not deliver the shares within the 10
day period specified, above, the Holder shall have the right to immediately
petition a court of competent jurisdiction for an order mandating the immediate
issuance of such shares, and the Company agrees not to contest the issuance of
such an order, it being agreed that any claims by the Company may not be
asserted against, or in any manner to impede, the Company's obligations
hereunder.
2. Vesting Schedule. The Holder shall be entitled to exercise this Warrant
with respect to the number of shares of Common Stock provided as follows:
<TABLE>
<CAPTION>
Years Elapsed From the Number of Shares
Date of This Warrant Purchasable
---------------------- ----------------
<C> <C>
1 150,000
2 300,000
3 450,000
4 600,000
</TABLE>
Notwithstanding any provision of this Warrant to the contrary, in no event may
this Warrant be exercised after 10 years from the date of this Warrant.
3. Shares to be Issued; Reservation of Shares. The Company covenants and
agrees that all shares which may be issued upon the exercise of the rights
represented by this Warrant will, upon issuance, be validly authorized, duly
issued and outstanding, fully paid and non-assessable, and free from all taxes,
liens and charges with respect to the issue thereof. The Company further
covenants and warrants that it will from time to time take all action required
to assure that the par value per share of the Common Stock is at all times equal
to or less than the effective Warrant Purchase Price. The Company further
covenants and agrees that, during the period within which the rights represented
by this Warrant may be exercised, the Company will at times have authorized and
reserved a sufficient number of shares of its Common Stock to provide for the
exercise of the rights represented by this Warrant and will at its expense
expeditiously upon each such reservation of shares procure the listing thereof
(subject to issuance or notice of issuance) on all stock exchanges, if any, on
which the Common Stock may then be listed.
4. Adjustment of Warrant Purchase Price. The Warrant Purchase Price in
effect from time to time shall be subject to adjustment as follows:
(a) Issues of Stock. If and whenever the Company shall issue any
shares of its Common Stock for a consideration per share which is less than the
Warrant Purchase Price in effect immediately prior to such issue (except upon
exercise of employee stock options granted pursuant to a plan qualified under
the Internal Revenue Code, as amended, as an incentive stock option, provided
that the total number of shares issued or issuable under options granted
pursuant to the plan shall not exceed 5% of the outstanding Common Stock of the
Company), the Warrant Purchase Price shall be reduced to a price determined by
dividing (i) the sum of (A) the number of shares of Common Stock outstanding
immediately prior to such issue multiplied by the Warrant Purchase Price in
effect immediately prior to such issue, plus (B) the consideration, if any,
received by the Company upon such issue, by (ii) the number of shares of Common
Stock outstanding immediately after such issue. No such adjustment shall be made
in an amount less than $.10, but any such amount shall be carried forward and
shall be given effect in connection with the next subsequent adjustment. For the
purposes of this subparagraph (a), the following clauses shall also be
applicable:
(1) Convertible Securities, Options and Rights. If the Company
shall issue any stock, security, obligation, option, or other right which
directly or indirectly may be converted into, exchanged for, or satisfied in
shares of Common Stock (except employee stock options issued within the
limitations of the exception described in subparagraph (a) of this paragraph 4),
the Common Stock issuable upon exercise of such rights shall thereupon be deemed
to have been issued and to be outstanding, and the consideration received by the
Company therefor shall be deemed to include the sum of the consideration
received for the issue of such rights and the minimum additional consideration
payable upon the exercise of such rights. No further adjustment shall be made
for the actual issuance of Common Stock upon the exercise of any such right. If
the provisions of any such rights with respect to purchase price or shares
purchasable shall change or expire, any adjustment previously made hereunder for
such rights shall be readjusted to such as would have obtained on the basis of
the rights as modified by such change or expiration.
(2) Stock Dividends and Splits. In case the Company shall
declare a dividend or other distribution payable in Common Stock or shall
subdivide its Common Stock into a greater number of shares of Common Stock, such
issue of Common Stock shall be deemed to have been made without consideration.
(3) Consideration. In case the Company shall issue shares of
its Common Stock for a consideration wholly or partly other than cash, the
amount of the consideration other than cash received by the Company shall be
deemed to be the lesser of: (i) the fair market value on the issue date of the
Common Stock so issued by the Company, or (ii) the fair value of such
consideration as determined by the Board of Directors of the Company. In case
Common Stock shall be deemed to have been issued upon the issuance by the
Company of any right to acquire such Common Stock in connection with the issue
or sale of other securities of the Company, together comprising one integral
transaction in which no specific consideration is allocated to rights, such
rights shall be deemed to have been issued without consideration. Consideration
received by the Company for issuance of its Common Stock shall be determined in
all cases without deduction therefrom of any expenses, underwriting commissions
or concessions incurred in connection therewith.
(4) Record Dates. In case the Company shall take a record of
the holders of its Common Stock for the purpose of determining holders entitled
to: (i) receive a dividend or other distribution payable in Common Stock, or
(ii) subscribe for or purchase Common Stock, then such record date shall be
deemed to be the date of the issue or sale of the shares of Common Stock issued
upon the declaration of such dividend or the making of such distribution or
deemed to have been issued upon the granting of such right of subscription or
purchase, as the case may be.
(5) Treasury Stock. The number of shares of Common Stock
outstanding at any given time shall include shares owned or held by or for the
account of the Company in its treasury, and the disposition of any such shares
so owned or held shall not be considered an issue of Common Stock.
(b) Stock Rights. In case the Company shall sell shares of its
Common Stock upon the exercise of subscription rights granted to holders of its
Common Stock (including shares sold to underwriters after failure of
subscriptions therefor pursuant to such rights) then, in addition to any
adjustment pursuant to subparagraph (a) of this paragraph 4, forthwith upon such
sale the Warrant Purchase Price shall be reduced to a price determined as
follows (calculated to the nearest cent), but only if the price so determined is
lower than the Warrant Purchase Price existing at the time of such sale after
making said adjustment pursuant to subparagraph (a):
The Warrant Purchase Price in effect immediately prior to the time of such
sale shall be multiplied by a fraction, the numerator of which shall be (i) the
sum of (A) the number of shares of Common Stock outstanding immediately prior to
such sale multiplied by the fair market value (as hereafter defined) per share
immediately prior to the grant of such subscription rights and (B) the
consideration received by the Company upon such sale, divided by (ii) the total
number of shares of Common Stock outstanding immediately after such sale, and
the denominator of which shall be the fair market value (as hereafter defined)
per share immediately prior to the grant of such subscription rights.
(c) Distributions. In case the Company shall declare a dividend on
its Common Stock otherwise than in shares of its Common Stock or securities
convertible into its Common Stock, the Warrant Purchase Price then in effect
shall be reduced by an amount equal to, in the case of a cash dividend, the
amount thereof payable per share of Common Stock or, in the case of any other
dividend, the fair value thereof per share of Common Stock as determined by the
Board of Directors of the Company. Such reductions shall take effect as of the
record date for determining stockholders entitled to such dividend.
(d) Stock Combinations. In case the Company shall combine or
consolidate all of the outstanding Common Stock of the Company, by
reclassification, reverse split or otherwise, proportionately into a smaller
number of shares, the number of shares purchaseable hereunder immediately prior
to such combination or consolidation shall be proportionately decreased and the
Warrant Purchase Price in effect immediately prior to such combination or
consolidation shall be proportionately increased.
(e) Reorganizations. If any capital reorganization or
reclassification of the capital stock of the Company, or consolidation or merger
of the Company with another corporation, or the sale of all or substantially all
of its assets to another corporation shall be effected, then, as a condition of
such reorganization, reclassification, consolidation, merger or sale, lawful and
adequate provision shall be made whereby the Holder shall thereafter have the
right to purchase and receive upon the basis and upon the terms and conditions
specified herein and in lieu of the shares of the Common Stock of the Company
immediately theretofore issuable upon exercise of the rights represented hereby,
such shares of stock, securities or assets as may be issued or payable with
respect to or in exchange for a number of outstanding shares of such Common
Stock equal to the number of shares of such Common stock immediately theretofore
issuable upon exercise of the rights represented hereby had such reorganization,
reclassification, consolidation, merger or sale not taken place; and in any such
case appropriate provisions shall be made with respect to the rights and
interests of each Holder to the end that the provisions hereof (including
without limitation provisions for adjustment of the Warrant Purchase Price and
of the number of shares issuable upon the exercise of this warrant) shall
thereafter be applicable, as nearly as may be, in relation to any shares of
stock, securities or assets thereafter deliverable upon the exercise hereof. The
Company shall not effect any such consolidation, merger or sale unless prior to
or simultaneously with the consummation thereof the corporation (if other than
the Company) resulting from such consolidation or merger or the corporation
purchasing such assets shall assume (by a written instrument executed and mailed
by registered mail or delivered to each registered Holder at the last address of
such holder appearing on the books of the Company) the obligation of the Company
to deliver to such holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, such holder may be entitled to
purchase.
(f) Notice of Adjustment. Upon each adjustment of the Warrant
Purchase Price, the Company shall give prompt written notice thereof addressed
to the registered Holder at the address of such holder as shown on the records
of the Company, which notice shall state the Warrant Purchase Price resulting
from such adjustment and the increase or decrease, if any, in the number of
shares of Common Stock (or, in the case of an adjustment under subparagraph (e),
any other stock, securities or assets) issuable upon the exercise of this
Warrant, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based.
5. Notice of Capital Changes. In case at any time:
(a) the Company shall pay any dividend payable in stock upon its
Common Stock or make any distribution to the holders of its Common Stock;
(b) the Company shall offer for subscription pro rata to the holders
of its Common Stock any additional shares of stock of any class or other rights;
(c) there shall be any capital reorganization or reclassification of
the capital stock of the Company, or consolidation or merger of the Company
with, or sale of all or substantially all of its assets to, another corporation;
or
(d) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to the Holder:
(i) at least 10 days' prior written notice of the date on which the books of the
Company shall close or a record shall be taken for such dividend, distribution
or subscription rights or for determining rights to vote in respect of any such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, and (ii) in the case of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, at least 20 days' prior written notice of the date when the same
shall take place. Such notice in accordance with the foregoing clause (i) shall
also specify, in the case of any such dividend, distribution or subscription
rights, the date on which the holders of Common Stock shall be entitled thereto,
and such notice in accordance with the foregoing clause (ii) shall also specify
the date on which the holders of Common Stock shall be entitled to exchange
their Common Stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, as the case may be. Each such written notice shall be
given by first class mail, postage prepaid, addressed to the Holder at the
address of such holder as shown on the books of the Company.
6. Common Stock. As used herein in the term "Common Stock" shall mean and
include the Company's Common Stock authorized on the date of the original issue
of the Warrants and shall also include any capital stock of any class of the
Company thereafter authorized which shall not be limited to a fixed sum or
percentage in respect of the rights of the holders thereof to participate in
dividends and in the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of the Company; provided that the shares
which may be purchased pursuant to this Warrant shall include only shares of the
class of Common Stock, $0.01 par value referred to at the beginning of this
agreement or, in the case of any reorganization, reclassification,
consolidation, merger or sale of assets of the character referred to in
subparagraph 4(e) hereof, the stock, securities or assets provided for in such
subparagraph.
7. Transfer. Subject to the provisions of the Agreement, this Warrant and
all rights hereunder are transferable, in whole or in part, at the offices
referred to in paragraph 1 hereof by the Holder in person or by duly authorized
attorney, upon surrender of this Warrant properly endorsed. Each taker and
Holder, by taking or holding the same, consents and agrees that this Warrant,
when endorsed for transfer by the attachment of stock powers or otherwise, shall
be deemed negotiable and that when this Warrant is so endorsed, the Holder may
be treated by the Company and all other persons dealing with this Warrant as the
absolute owner hereof for any purposes and as the person entitled to exercise
the rights represented by this Warrant or to the transfer hereof on the books of
the Company, any notice to the contrary notwithstanding; but until each transfer
on such books, the Company may treat the registered Holder as the owner hereof
for all purposes.
8. Exchange. This Warrant is exchangeable, upon its surrender at the
offices referred to in paragraph 1, for new Warrants of like tenor representing
in the aggregate the right to subscribe for and purchase the number of shares
which may be subscribed for and purchased hereunder, each of such new Warrants
to represent the right to subscribe for and purchase such number of shares as
shall be designated by the Holder at the time of such surrender. Upon receipt of
evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and, in the case of any such loss, theft or
destruction, upon delivery of a bond of indemnity satisfactory to the Company,
or, in the case of any such mutilation, upon surrender or cancellation of this
Warrant, the Company will issue to the Holder a new warrant of like tenor, in
lieu of this Warrant, representing the right to subscribe for and purchase the
number of shares which may be subscribed for and purchased hereunder.
9. Registration of Shares. The Company hereby agrees to register the
Shares issuable or issued hereunder under the Securities Act of 1933, as
amended, for sale into the public markets as soon as practicable, and in no
event later than November 30, 1996.
IN WITNESS WHEREOF, Stacey's Buffet, Inc. has caused this Warrant to be
signed by its duly authorized officers as of the date hereof.
STACEY'S BUFFET, INC.
By: /s/ DANIEL J. SULLIVAN
------------------------------------
Daniel J. Sullivan, Treasurer
Dated as of: January 3, 1996
Attest:
/s/ MAUREEN JACK
- ----------------------------------
Maureen Jack, Secretary
Exhibit 5
---------
[Letterhead of Partridge, Snow & Hahn]
February 6, 1997
The Board of Directors of
Stacey's Buffet, Inc.
801 West Bay Drive, Suite 704
Largo, Florida 34640
Re: Stacey's Buffet, Inc.
Securities and Exchange Commission
Registration Statement on Form S-3
Dear Board of Directors:
As counsel to Stacey's Buffet, Inc., a Florida corporation (the
"Company"), we have assisted in the preparation of the Company's Registration
Statement on Form S-3 (the "Registration Statement"), filed with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, covering a
maximum of 323,700 shares of common stock, par value $.01 per share, of the
Company (the "Common Stock"), including 219,617 shares of common stock, par
value $.01 per share, of the Company issuable upon exercise of certain options
(the "Options") and warrants (the "Warrants") (collectively, the "Option Stock")
on behalf of the Selling Stockholders (as defined in the Registration
Statement). The Common Stock and the Option Stock shall hereinafter collectively
be referred to as the "Registered Stock."
In this connection we have examined the original or copies, certified or
otherwise identified to our satisfaction, of the Company's Articles of
Incorporation and its By-laws, as amended and restated, resolutions of its Board
of Directors and such other documents and corporate records relating to the
Company and the issuance of the Registered Stock as we have deemed appropriate
for purposes of rendering this opinion.
In connection with this opinion, we have made such investigations of law
and such other inquiries as we have considered necessary to enable us to express
our opinion as to the matters set forth below. We have examined and relied upon
certain instruments, documents, letters, and records with respect to the
information shown or contained therein. In the course of our investigation,
examination, and inquiry, we have assumed the legal capacity of natural persons,
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, the conformity to originals of all documents submitted to us
as certified or photostatic copies, and the authenticity of the originals from
which such copies were made. As to matters of fact which have not been
independently established by us, we have relied upon certificates or the
representations of officers of the Company.
This opinion relates only to the laws of the United States of America and
the State of Florida enacted as of the date hereof and the facts as known to us
as of such date. We undertake no obligation to revise or update this opinion to
reflect any facts or circumstances which may hereafter come to our attention or
any change in laws or regulations which may hereafter occur. We render no
opinion on matters except as expressly stated herein.
Based upon the foregoing examinations and the information so supplied, it
is our opinion that:
1. The Common Stock has been duly authorized and validly issued.
2. The Common Stock has been fully paid and is non-assessable.
3. The Option Stock has been duly reserved for issuance upon
exercise of the Options and the Warrants, and the issuance,
sale and delivery of the Option Stock upon due exercise of the
Options and Warrants have been duly authorized by all required
corporate action and upon receipt by the Company of the
consideration therefor shall be fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and the reference to this firm under the caption "Legal Matters" in
the prospectus contained therein. However, the foregoing consent shall not be
deemed to constitute a consent under Section 7 of the Securities Act of 1933,
since we have not certified any part of the Registration Statement and do not
otherwise come within the categories of persons whose consent is required under
Section 7 or the rules and regulations of the Securities and Exchange
Commission.
This opinion is given solely for your benefit and may not be relied upon
by any other person or entity.
Very truly yours,
/s/ Partridge, Snow & Hahn
----------------------------------------
Exhibit 10
----------
FORM OF
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (the "Agreement") is made as of the 21st day of
June, 1996, between STACEY'S BUFFET, INC., a Florida corporation (the
"Corporation"), and ____________________, the _____________ of the Corporation
(the "Executive").
WHEREAS, the Executive has been appointed to serve as __________of the
Corporation and the Corporation wishes the Executive to provide services to the
Corporation in such capacity; and
WHEREAS, the Executive has indicated that he does not regard the
indemnities available under the Corporation's bylaws and available insurance, if
any, as adequate to protect him against the risks associated with his
contemplated service to the Corporation. The Executive may not be willing to
provide services to the Corporation in the absence of the benefits accorded to
the Executive under this Agreement.
NOW, THEREFORE, in consideration of the foregoing and in order to induce
the Executive to serve as Executive of the Corporation and in consideration for
such services, the Corporation hereby agrees to indemnify the Executive as
follows:
1. The Corporation will pay on behalf of the Executive, and his executors,
administrators or assigns, any amount which he is or becomes legally obligated
to pay because of any claim or claims made against him because of any act or
omission or neglect or breach of duty, other than any such amount specifically
related to a breach of his duty of loyalty to the Corporation, including any
actual or alleged error or misstatement or misleading statement, which he
commits or suffers while acting in his capacity as _____________ of the
Corporation. The payments which the Corporation will be obligated to make
hereunder shall include, without limitation, damages, judgments, settlements and
costs, costs of investigation (excluding salaries of officers or employees of
the Corporation) and costs of defense of legal actions, claims or proceedings
and appeals therefrom, and costs of attachment or similar bonds; provided,
however, that the Corporation shall not be obligated to pay fines or other
obligations or fees imposed by law or otherwise make any payments hereunder
which the Corporation is prohibited by applicable law from paying as indemnity
or for any other reason.
2. If a claim under this Agreement is not paid by the Corporation, or on
its behalf, within thirty (30) days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim.
3. In the event of payment under this Agreement, the Corporation shall be
subrogated to the extent of such payment to all of the rights of recovery of the
Executive, who shall execute any and all papers required and shall do everything
that may be necessary to secure such rights, including the execution of such
documents necessary to enable the Corporation effectively to bring suit to
enforce such rights.
4. The Corporation shall not be liable under this Agreement to make any
payment in connection with any claim made against the Executive:
(a) for which payment is actually made to the Executive under a
valid and collectible insurance policy, except in respect to any excess beyond
the amount of payment under such insurance;
(b) for which payment is actually made to the Executive by reason of
the Executive having given notice of any circumstance which might give rise to a
claim under any policy of insurance, the terms of which have expired prior to
the effective date of this Agreement;
(c) for which payment is actually made to the Executive in
connection with indemnification of the Executive by the Corporation otherwise
than pursuant to this Agreement;
(d) based upon or attributable to the Executive gaining in fact any
personal profit or advantage to which he was not legally entitled;
(e) for an accounting of profits made for the purchase or sale by
the Executive of securities of the Corporation within the meaning of Section
16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any state statutory law or common law; or
(f) brought about or contributed to by the dishonesty of the
Executive seeking payment hereunder; however, notwithstanding the foregoing, the
Executive shall be protected under this Agreement as to any claims upon which
suit may be brought against him by reason of any alleged dishonesty on his part,
unless a judgment or other final adjudication thereof adverse to the Executive
shall establish that he committed (i) acts of active and deliberate dishonesty,
or (ii) acts with actual dishonest purpose and intent, which acts were material
to the cause of action so adjudicated.
5. No costs, charges or expenses for which indemnity shall be sought
hereunder shall be incurred without the Corporation's consent, which consent
shall not be unreasonably withheld.
6. The Executive, as a condition precedent to his right to be indemnified
under this Agreement, shall give to the Corporation notice in writing as soon as
practicable of any claim made against him for which indemnity will or could be
sought under this Agreement. Notice to the Corporation shall be directed to
Stacey's Buffet, Inc., 801 West Bay Drive, Suite 704, Largo, Florida 34640,
Attention: Maureen A. Jack, Secretary (or such other address as the Corporation
shall designate in writing to the Executive); all notices and communications
provided for herein shall be in writing and shall be sent by: (i) certified
mail, return receipt requested, postage prepaid, or (ii) Federal Express or
similar overnight courier service which provides a receipt reflecting delivery.
In addition, the Executive shall give the Corporation such information and
cooperation as it may reasonably require and as shall be within the Executive's
power.
7. Costs and expenses (including attorneys' fees) incurred by the
Executive in defending or investigating any action, suit, proceeding or
investigation shall be paid by the Corporation in advance of the final
disposition of such matter, provided that the Executive shall undertake in
writing to repay any such advances in the event that it is ultimately determined
that the Executive is not entitled to indemnification under the terms of this
Agreement. Notwithstanding the foregoing or any other provision of this
Agreement, no advance shall be made by the Corporation if a determination is
reasonably and promptly made by the board of directors by a majority vote of a
quorum of disinterested directors, or (if such a quorum is not obtainable or,
even if obtainable, a quorum of disinterested directors so directs) by
independent legal counsel, that, based upon the facts known to the board or
counsel at the time such determination is made, (a) the Executive acted in bad
faith or deliberately breached his duty to the Corporation or its stockholders,
and (b) as a result of such actions by the Executive, it is more likely than not
that it will ultimately be determined that the Executive is not entitled to
indemnification under the terms of this Agreement.
8. Nothing herein shall be deemed to diminish or otherwise restrict the
Executive's right to indemnification under any provision of the Articles of
Incorporation or bylaws of the Corporation or under Florida law.
9. This Agreement shall be governed by and construed in accordance with
laws of the State of Florida without giving effect to the conflicts of laws or
choice of laws principles thereof.
10. This Agreement shall be binding upon all successors and assigns of the
Corporation (including any transferee of all or substantially all of its assets
and any successor by merger or operation of law) and shall inure to the benefit
of the heirs, personal representatives and estate of the Executive.
11. The indemnification provided under this Agreement shall cover the
Executive's service as an Executive of the Corporation whether before or after
the date of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and signed as of the date first set forth above.
WITNESSES: STACEY'S BUFFET, INC.
- ---------------------------------- By: ------------------------------------
Name: ---------------------------- Name: ----------------------------------
(Typed or Printed)
Title: ---------------------------------
EXECUTIVE:
- ---------------------------------- ----------------------------------------
[NAME]
Name: ----------------------------
(Typed or Printed)
Exhibit 23.1
------------
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Stacey's Buffet, Inc.
We consent to the use of our report incorporated herein by reference and
to the reference to our firm under the heading "Experts" in the prospectus.
The report of KPMG Peat Marwick LLP covering the January 3, 1996 financial
statements, contains an explanatory paragraph that states that the Company
adopted in 1995 the provisions of the Financial Accounting Standards Board's
Statement of Financial Accounting Standard No. 121, Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of.
KPMG PEAT MARWICK, L.L.P.
/s/ KPMG PEAT MARWICK, L.L.P.
- ----------------------------------
Tampa, Florida
February 7, 1997
