<PAGE> 1
As filed with the Securities and Exchange Commission on August 20, 1999
Registration No. 333-47661
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SIZZLER INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 95-4307254
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
6101 WEST CENTINELA BOULEVARD 90230
CULVER CITY, CALIFORNIA (Zip Code)
(Address of principal executive offices)
SIZZLER INTERNATIONAL, INC.
1997 EMPLOYEE STOCK INCENTIVE PLAN
(Full title of the plan)
MR. STEVEN R. SELCER
VICE PRESIDENT & CHIEF FINANCIAL OFFICER
SIZZLER INTERNATIONAL, INC.
6101 WEST CENTINELA BOULEVARD
CULVER CITY, CALIFORNIA 90230
(Name and address of agent for service)
(310) 568-0135
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities to Amount to be Offering Price Per Aggregate Offering Amount of
be Registered Registered(1) Share(2) Price(2) Registration Fee
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,000,000 $3.50 $3,500,000 $1,032.50
- -----------------------------------------------------------------------------------------------------------------------
Total 1,000,000 $3.50 $3,500,000 $1,032.50
=======================================================================================================================
</TABLE>
(1) THESE SHARES ARE RESERVED FOR ISSUANCE PURSUANT TO THE SIZZLER
INTERNATIONAL, INC. 1997 EMPLOYEE STOCK INCENTIVE PLAN (THE "PLAN").
PURSUANT TO RULE 416, ALSO BEING REGISTERED ARE ADDITIONAL SHARES OF
COMMON STOCK AS MAY BECOME ISSUABLE UNDER THE PLAN THROUGH THE OPERATION
OF ANTI-DILUTION PROVISIONS.
(2) ESTIMATED SOLELY FOR THE PURPOSES OF CALCULATING THE REGISTRATION FEE
PURSUANT TO RULE 457(H) AND BASED UPON THE AVERAGE OF THE HIGH AND LOW
SALES PRICE OF THE COMMON STOCK OF SIZZLER INTERNATIONAL, INC. IN THE
CONSOLIDATED REPORTING SYSTEM OF THE NEW YORK STOCK EXCHANGE ON MARCH
4, 1998 OF $3.50.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Pursuant to its Registration Statement on Form S-8 No. 33-347661
filed with the Securities and Exchange Commission on March 10, 1999 (the
"Original Registration Statement"), the registrant registered 1,000,000 shares
of its Common Stock, $.01 par value per share (the "Common Stock"), issuable
under the 1997 Employee Stock Incentive Plan (the "Employee Plan"). The Employee
Plan was amended by resolution of the Board of Directors of the registrant on
June 17, 1998 to increase the number of shares of Common Stock reserved for
issuance under the Employee Plan from 1,000,000 to 2,800,000 (the "Amendment").
The Amendment became effective on August 18, 1998 upon the approval thereof by
the holders of a majority of the shares of Common Stock represented and voting,
in person or by proxy, and entitled to vote at the registrant's annual meeting.
By this Post-Effective Amendment, the Company hereby amends the Original
Registration Statement to reflect the Amendment of the Employee Plan, effective
August 18, 1998.
The contents of the Original Registration Statement are
incorporated herein by reference into this Post-Effective Amendment No. 1 to
that Registration Statement. Required opinions, consents and signatures are
included in this amendment.
Item 2. Registrant Information and Employee Plan Annual Information.
See Item 1.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
See Item 1.
Item 4. Description of Securities.
See Item 1.
Item 5. Interests of Named Experts and Counsel.
See Item 1.
Item 6. Indemnification of Directors and Officers.
See Item 1.
Item 7. Exemption from Registration Claimed.
See Item 1.
Item 8. Exhibits.
See Exhibit Index and Exhibits of the end of this Post-Effective Amendment
No. 1.
2
<PAGE> 3
Item 9. Undertakings.
1. The undersigned registrant hereby undertakes:
(i) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement to
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement.
(ii) That, for the purpose of determining any liability
under the Securities Act of 1933, 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 the
initial bona fide offering thereof.
(iii) 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.
2. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registration 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 it counsel, the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
3
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and had duly caused this amendment to
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Culver City, State of California, on this 17th day of
August, 1999.
SIZZLER INTERNATIONAL, INC.
By:/s/ Charles L. Boppell
---------------------------------
Charles L. Boppell
Chief Executive Officer
POWER OF ATTORNEY
Each individual whose signature appears below constitutes and appoints
Charles L. Boppell and Steven L. Selcer and each or either of them, his true and
lawful attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and all other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
amendment to registration statement has been signed by the following persons
in the capacities and on the dates indicated.
NAME TITLE DATE
---- ----- ----
/s/ Charles L. Boppell Director and Chief August 17, 1999
- ---------------------- Executive Officer
Charles L. Boppell (Principal Executive Officer)
(SIGNATURES CONTINUED ON NEXT PAGE)
4
<PAGE> 5
/s/ Phillip D. Matthews Director and August 17, 1999
- ------------------------------- Chairman of the Board
Phillip D. Matthews
/s/ James A. Collins Director August 17, 1999
- -------------------------------
James A. Collins
/s/ Barry E. Krantz Director August 17, 1999
- -------------------------------
Barry E. Krantz
/s/ Robert A. Muh Director August 17, 1999
- -------------------------------
Robert A. Muh
/s/ Kevin W. Perkins Director August 17, 1999
- -------------------------------
Kevin W. Perkins
/s/ Charles F. Smith Director August 17, 1999
- -------------------------------
Charles F. Smith
/s/ Steven R. Selcer Vice President and August 17, 1999
- ------------------------------- Chief Financial Officer
Steven R. Selcer (Principal Financial
and Accounting Officer)
5
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NO. DESCRIPTION NUMBERED PAGE
- ----------- ----------------------------------------------------------------- -------------
<S> <C> <C>
4.1 Certificate of Incorporation of the Registrant, incorporated
herein by reference to Exhibit 3.1 to Amendment No. 1 to the
Registrant's Registration Statement on Form S-4 (Registration No.
33-38412).
4.2 Bylaws of the Registrant as amended through June 16, 1999,
incorporated herein by reference to Exhibit 3.2 to the
Registrant's Form 10-K report for the fiscal year ended
April 30, 1999.
4.3 Sizzler International, Inc. 1997 Employee Stock Incentive Plan,
as amended through August 18, 1998.
4.4 Rights Agreement dated January 22, 1991 between the Registrant
and The Bank of New York, incorporated herein by reference to
Exhibit 4.1 to Amendment No. 1 to the Registrant's Form S-4
Registration Statement No. 33-38412.
4.5 Amendment to Rights Agreement dated March 20, 1996 between The
Bank of New York and the Registrant, incorporated herein by
reference to Exhibit 4.2 to the Registrant's Form 10-K report for
the fiscal year ended April 30, 1996.
4.6 Certificate of Designation of Series A Junior Participating
Preferred Stock of the Registrant, incorporated herein by
reference to Amendment No. 1 to the Registrant's Form S-4
Registration Statement No. 33-38412.
5.1 Opinion of Pachulski, Stang, Ziehl & Young P.C. (previously
filed)
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Pachulski, Stang, Ziehl & Young P.C. (included in
Exhibit 5.1).
24.1 Power of Attorney (included on signature page)
</TABLE>
6
<PAGE> 1
SIZZLER INTERNATIONAL, INC.
1997 EMPLOYEE STOCK INCENTIVE PLAN
(As Amended Through August 18, 1998)
1. Purpose of Plan. The purpose of this 1997 Employee Stock Incentive
Plan ("Plan") of Sizzler International, Inc., a Delaware corporation (the
"Company"), is to enable the Company and its subsidiaries to attract, retain and
motivate their employees by providing for or increasing the proprietary
interests of such persons in the Company. This Plan provides for the sale of
Restricted Shares and the grant of Incentive Options, Non-Qualified Options and
Discount Options (as such capitalized terms are hereinafter defined) to eligible
employees of the Company and its subsidiaries. In addition, this Plan provides
for the grant of Stock Appreciation Rights (as hereinafter defined) in
connection with the grant of options.
2. Certain Definitions. As used in this Plan, the following terms shall
have the meanings indicated:
(a) "Restricted Share" shall mean a Common Share sold under this
Plan that is subject to the restrictions imposed pursuant to Section 6
hereof and such additional restrictions as may be imposed under this
Plan by the Committee.
(b) "Common Share" shall mean a share of the common stock, par
value $.0l per share, of the Company, together with any other securities
with respect to which options granted hereunder may become exercisable.
(c) "Committee" shall have the meaning ascribed to it in Section
8 hereof.
(d) "Incentive Option" shall mean an option granted under this
Plan that is both intended to and qualifies as an incentive stock option
under Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
(e) "Non-Qualified Option" shall mean an option granted under
this Plan that (1) either is not intended to be or is not denominated as
an Incentive Option, or that does not qualify as an incentive stock
option under Section 422 of the Code, and (2) that has an exercise price
that is not less than the greater of (i) the aggregate Fair Market Value
of the Option Shares on the date of grant of such option or (ii) the
aggregate par value of the Option Shares.
(f) "Discount Option" shall mean an option granted under this
Plan that (1) either is not intended to be or is not denominated as an
Incentive Option, or that does not qualify as an incentive stock option
under Section 422 of the Code, and (2) that has an exercise price that
is less than the aggregate Fair Market Value of the Option Shares on the
date of grant of such option, but not less than the greater of (a) 50%
of the aggregate
1
EXHIBIT 4.3
<PAGE> 2
Fair Market Value of the Option Shares on the date of grant of such
option or (b) the aggregate par value of the Option Shares.
(g) "Fair Market Value" shall have the meaning ascribed to it in
Section 10 hereof.
(h) "Option Shares" shall mean, with respect to any option
granted under this Plan, the Common Shares that may be acquired upon the
exercise in full of such option.
(i) "Non-Employee Director" shall mean any director of the
Company that is a Non-Employee Director as defined in Rule 16b-3(b)(3).
(j) "Stock Appreciation Right" shall have the meaning ascribed to
it in Section 7(e) hereof.
3. Common Shares Subject to Plan. The maximum number of Common Shares
that may be sold as Restricted Shares or that may be acquired upon the exercise
in full of options granted under this Plan, or of Stock Appreciation Rights
granted in connection therewith, in the aggregate is 2,800,000, subject to
adjustment as provided in Section 11 hereof. Such maximum number does not
include the number of Restricted Shares sold under this Plan that are
repurchased by the Company nor does it include the number of Common Shares
subject to the unexercised portion of any option granted under this Plan that
expires or is terminated. However, the maximum number of Common Shares does
include the number of Common Shares subject to the portion of any option granted
under this Plan that is surrendered in connection with the exercise of any Stock
Appreciation Rights granted in connection with any option.
4. Persons Eligible under Plan. Any person employed by the Company or
any of its subsidiaries on a salaried basis, including any director who is so
employed (an "Employee"), shall be eligible to be considered for the sale of
Restricted Shares and grant of options under this Plan.
5. Duration of Plan. Restricted Shares may not be sold or options
granted under this Plan after January 1, 2007.
6. Restricted Shares.
(a) Restricted Shares may be sold under this Plan to any Employee
for an amount that is not less than the aggregate par value of such
shares, which amount shall be paid in full in cash on the date of such
sale.
2
EXHIBIT 4.3
<PAGE> 3
(b) All Restricted Shares sold under this Plan shall be subject
to the following restrictions:
(i) except to the extent provided in the Employee's
Restricted Stock Agreement concerning permitted transfers to certain
family members or trusts, such shares may not be sold, assigned,
conveyed, gifted, pledged, transferred, hypothecated, or otherwise
disposed of by the purchaser of such shares; and
(ii) in the event that such purchaser ceases to be an
Employee for any reason other than death, total disability, early
retirement with the consent of the Board of Directors of the Company, or
normal retirement (individually and collectively, "Retirement"), the
Company shall have the option for 30 days following the date of such
event to repurchase, for cash, at the price paid therefor by such
purchaser, all or any part of such shares that, on the date of such
event, are still subject to any restrictions imposed under this Plan,
which option shall be deemed to be exercised by the Company to purchase
all of such shares unless the Committee shall notify such purchaser
otherwise in writing during such 30-day period.
(c) Upon each sale of Restricted Shares under this Plan the
Committee shall, on behalf of the Company, enter into, execute and
deliver to the purchaser of such shares an agreement of purchase and
sale containing the terms and conditions of such sale (the"Restricted
Stock Agreement"). Each Restricted Stock Agreement shall have attached
as an exhibit thereto a lapsing schedule that specifies, for each
anniversary of the date of such sale, criteria governing the termination
of restrictions and the percentage of shares eligible for such
termination of restrictions on such anniversary (the "Lapsing
Schedule"). If the criteria indicated on such Lapsing Schedule for any
anniversary shall be satisfied in full on such anniversary, then all
restrictions imposed upon such shares under this Plan, including the
restrictions imposed pursuant to subsection (b) above, shall thereupon
terminate with respect to the percentage of such shares indicated on
such Lapsing Schedule for such anniversary.
(d) All restrictions imposed upon Restricted Shares sold under
this Plan, including the restrictions imposed pursuant to subsection (b)
above, that have not theretofore terminated pursuant to subsection (c)
above shall terminate upon the first to occur of the following:
(i) the date upon which the purchaser of such shares shall
cease to be an Employee as a result of Retirement; or
(ii) if the Committee notifies the purchaser in writing
that the Company will not exercise its repurchase option, 30 days after
the date upon which such purchaser shall cease to be an Employee for any
reason other than Retirement.
3
EXHIBIT 4.3
<PAGE> 4
7. Stock Options.
(a) Incentive Options.
(i) Incentive Options may be granted under this Plan to
any Employee and, in connection therewith, Stock Appreciation Rights may
be granted to such Employee. Each Incentive Option granted under this
Plan shall have an exercise price that is not less than the greater of
(A) 100% of the aggregate Fair Market Value of the Option Shares on the
date of grant of such option or (B) the aggregate par value of the Option
Shares; provided, however, that each Incentive Option granted under this
Plan to an Employee then owning (after application of the family and
other attribution rules of Section 425(d) of the Code) more than 10% of
the total combined voting power of all classes of stock of the Company or
of its parent or subsidiary corporations shall have an exercise price
that is not less than the greater of (X) 110% of the aggregate Fair
Market Value of the Option Shares on the date of grant of such options or
(Y) the aggregate par value of the Option Shares.
(ii) Each Incentive Option granted under this Plan shall
expire on the tenth anniversary of the date of grant of such option;
provided, however, that any Incentive Option granted under this Plan to
an Employee who owns (after the application of the family and other
attribution rules of Section 425(d) of the Code), at the time such option
is granted, more than 10% of the total combined voting power of all
classes of stock of the Company or of its parent or subsidiary
corporations shall expire on the fifth anniversary of the date of grant
of such option. In addition, each Incentive Option shall also terminate
upon, or within a certain time after, the Employee's termination of
employment with the Company or any of its subsidiaries, as more fully set
forth in the Option Agreement.
(iii) To the extent that the aggregate Fair Market Value
(determined on the date such options are granted) of the Common Shares
with respect to which Incentive Options are exercisable for the first
time by any Employee during any calendar year (under this Plan and all
other stock option plans of the Company and its parent or subsidiary
corporations) exceeds $100,000, then such excess over $100,000 shall not
be considered as subject to an Incentive Option, but rather shall be
considered as subject to a Non-Qualified Option. This rule shall be
applied by taking Common Shares subject to Incentive Options that are
purchasable for the first time in the calendar year into account in the
order in which such Incentive Options were granted.
(b) Non-Qualified Options. Non-Qualified Options may be granted
under this Plan to any Employee and, in connection therewith, Stock
Appreciation Rights may be granted to such Employee. Each Non-Qualified
Option granted under this Plan shall expire on the earlier of (a) the
tenth anniversary of the date of grant of, such option, or (b) upon,
4
EXHIBIT 4.3
<PAGE> 5
or within a certain time after, the Employee's termination of employment
with the Company or any of its subsidiaries, as more fully set forth in
the Option Agreement.
(c) Discount Options. Discount Options may be granted under this
Plan to any Employee and, in connection therewith, Stock Appreciation
Rights may be granted to such Employee. Each Discount Option granted
under this Plan shall expire on the earlier of (a) the tenth anniversary
of the date of grant of such option, or (b) upon, or within a certain
time after, the Employee's termination of employment with the Company or
any of its subsidiaries, as more fully set forth in the Option
Agreement.
(d) Option Agreements. Upon each grant of an option under this
Plan, the Committee, on behalf of the Company, shall enter into,
execute, and deliver to the optionee an option agreement containing the
terms and conditions of such option (the "Option Agreement").
(e) Stock Appreciation Rights.
(i) If the Option Agreement with respect to such option so
provides, the grant of an option under this Plan may include the grant
of a right (a "Stock Appreciation Right") to surrender all or part of
such option, in lieu of the exercise thereof, in exchange for, at the
election of the optionee, cash or Common Shares or any combination
thereof having an aggregate Fair Market Value on the date of such
surrender equal to the excess of (i) the aggregate Fair Market Value on
the date of such surrender of the Common Shares otherwise issuable upon
exercise of such option or part of an option so surrendered, over and
above (ii) the exercise price of such option or part of an option so
surrendered.
(ii) Notwithstanding subsection (i) above, in the event
that the grant of an option under this Plan shall include the grant of a
Stock Appreciation Right, then, except as otherwise provided in
subsection (ii)(D)(2) below:
(A) the optionee may not exercise such Stock
Appreciation Right and receive cash in full or partial settlement
thereof unless (1) the Company shall have been subject to the reporting
requirements of Section 13 of the Securities Exchange Act of 1934, as
amended (the "1934 Act") Act for at least one year prior to such
exercise and shall have filed all reports and statements required to be
filed pursuant to such section during such year, (2) the Company on a
regular basis releases quarterly and annual summary statements of its
sales and earnings ("Financial Data") for publication on a wire
service, in a financial news service, or in a newspaper of general
circulation, or Financial Data is otherwise made publicly available on
a regular basis, and (3) such Stock Appreciation Right shall not have
been exercised during the first six months after the date of grant
thereof;
5
EXHIBIT 4.3
<PAGE> 6
(B) any election by the optionee to receive cash in
full or partial settlement of such Stock Appreciation Right, as well as
any exercise by such optionee of such Stock Appreciation Right for such
cash, shall be made during the period beginning on the third business
day following the date of release of Financial Data and ending on the
twelfth business day following such date;
(C) the Committee shall have sole discretion to
consent to or disapprove any election by the optionee to receive cash
in full or partial settlement of such Stock Appreciation Right, which
consent or disapproval may be given at any time after such election;
and
(D) the Committee may, at any time, in its sole
discretion, (1) impose such additional conditions on the exercise of
such Stock Appreciation Right as may be required to comply with Rule
16b-3 promulgated under the 1934 Act, and (2) waive any of the
above-described restrictions in the event that either (a) the optionee
is not subject to Section 16 of the 1934 Act, (b) the transaction would
not result in liability under said Section 16, or (c) the optionee
consents to liability thereunder and consents to disgorge any profits
relating thereto to the Company.
(f) Nontransferability. Any transferability restrictions imposed
on options and related Stock Appreciation Rights shall be set forth in the
individual Option (or tandem Option and Stock Appreciation Rights)
Agreement.
(g) Payment of Exercise Price of Options. Payment of the exercise
price of any option granted under this Plan shall be made in full in cash
concurrently with the exercise of such option; provided, however, that, if
and to the extent the Option Agreement with respect to such option so
provides, the payment of such exercise price may be made:
(1) in whole or in part, with Common Shares delivered
concurrently with such exercise (such shares to be valued on the basis of
the Fair Market Value of such shares on the date of such exercise),
provided that the Company is not then prohibited from purchasing or
acquiring Common Shares; and/or
(2) in whole or in part, by reducing the number of Common
Shares to be delivered to the optionee upon exercise of such option (such
reduction to be valued on the basis of the aggregate Fair Market Value
(determined on the date of such exercise) of the additional Common Shares
that would otherwise have been delivered to such optionee upon exercise
of such option), provided that the Company is not then prohibited from
purchasing or acquiring Common Shares; and provided further, however,
that in the event the exercise of such option occurs on or after the
Acceleration Date (as hereinafter defined), the payment of such exercise
price may be made in part by the delivery concurrently with such
exercise, of a full-recourse promissory note in the form attached
6
EXHIBIT 4.3
<PAGE> 7
hereto as Exhibit A, provided that the principal amount of such note
shall not exceed the excess of the exercise price of such option over and
above the aggregate par value of the Option Shares.
8. Administration of Plan. This Plan shall be administered by a
committee of the Board of Directors of the Company (the "Board"). So long as the
Board consists of at least two Non-Employee Directors, the Committee shall
consist of two or more Non-Employee Directors (the "Committee"), who shall serve
at the pleasure of the Board. On behalf of the Company, and subject to the
provisions of this Plan, the Committee shall be authorized and empowered to do
all things necessary or desirable in connection with the administration of this
Plan, including, without limitation, the following:
(a) adopt, amend, and rescind rules and regulations relating to
this Plan;
(b) determine which persons meet the requirements of Section 4
hereof for eligibility under this Plan, and to which of such eligible
persons, if any, Restricted Shares shall be sold and options shall be
granted under this Plan;
(c) sell Restricted Shares under this Plan, determine the terms
and conditions to be included in the Restricted Stock Agreements,
including the number of shares, the restrictions to be imposed upon such
shares, the criteria and percentages of shares to be specified in the
Lapsing Schedules, and any other terms and conditions deemed necessary
or desirable, determine the permissible forms of payment of any income
taxes required to be withheld by the Company as a result of such sales,
and determine whether, and the extent to which, the Company should
exercise any option hereunder to repurchase such shares;
(d) grant options under this Plan, determine the terms and
conditions to be included in the Option Agreements, including the number
of Common Shares subject thereto, the exercise prices, the permissible
forms of payment of such exercise prices, the grant, if any, of Stock
Appreciation Rights, the terms of exercise of such options and Stock
Appreciation Rights, and any other terms and conditions deemed necessary
or desirable, consent to or disapprove any election to receive cash in
full or partial settlement of any such Stock Appreciation Rights, and
determine the permissible forms of payment of any income taxes required
to be withheld by the Company as a result of the exercise of such
options;
(e) determine whether, and the extent to which, adjustments are
required under Section 11 hereof; and
(f) construe this Plan and the terms, conditions and
restrictions of any Restricted Shares sold under this Plan and any
options and Stock Appreciation Rights granted under this Plan, and the
Restricted Stock Agreements and Option Agreements with respect to such
Restricted Shares and options.
7
EXHIBIT 4.3
<PAGE> 8
Neither the members of the Board nor any member of the Committee shall
be liable for any act, omission, or determination taken or made in good faith
with respect to the Plan or any option, right, or share of stock granted or sold
under it, and members of the Board and the Committee shall be entitled to
indemnification and reimbursement by the Company in respect of any claim, loss,
damage, or expense (including attorneys' fees, the costs of settling any suit,
provided such settlement is approved by independent legal counsel selected by
the Company, and amounts paid in satisfaction of a judgment, except a judgment
based on a finding of bad faith) arising therefrom to the full extent permitted
by law and under any directors and officers liability or similar insurance
coverage that may from time to time be in effect.
9. Payment of Income Taxes. If the Company is required to withhold an amount
on account of any federal or state income tax imposed as a result of the sale of
any Restricted Shares under this Plan or exercise of any option or Stock
Appreciation Right granted under this Plan, the purchaser or optionee shall,
concurrently with such withholding, pay such amount to the Company in full in
cash; provided, however, that, in the discretion of the Committee, the payment
of such amount to the Company may be made, in whole or in part:
(a) with Common Shares delivered by such purchaser or optionee
concurrently with such withholding (such shares to be valued on the basis of
the Fair Market Value of such shares on the date of such sale or exercise),
provided that the Company is not then prohibited from purchasing or
acquiring Common Shares; and/or
(b) by reducing the number of Common Shares to be delivered to such
optionee upon exercise of such option (such reduction to be valued on the
basis of the aggregate Fair Market Value (determined on the date of such
exercise) of the additional Common Shares that would otherwise have been
delivered to such optionee upon exercise of such option), provided that the
Company is not then prohibited from purchasing or acquiring Common Shares.
10. Determination of Fair Market Value. The "Fair Market Value" of a Common
Share or other security on any day shall be equal to the last sale price,
regular way, per Common Share or unit of such other security on such day or, in
case no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the Common Shares or
such other security are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities exchange
on which the Common Shares or such other security are listed or admitted to
trading or, if the Common Shares or such other securities are not listed or
admitted to trading on any national securities exchange, the last quoted price
or, if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association of Securities
Dealers, Inc. Automated Quotations System
8
EXHIBIT 4.3
<PAGE> 9
("NASDAQ") or such other system then in use or, if on any such date the Common
Shares or such other security are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Common Shares or such other security
selected by the Board. In all other cases, Fair Market Value shall be the value
determined in good faith by the Board. For purposes of valuing Common Shares
subject to the Incentive Options, the Fair Market Value of a Common Share or
other security shall be determined without regard to any restriction other than
one which, by its terms, will never lapse.
11. Adjustments. If the outstanding securities of the class then subject to
this Plan are increased, decreased or exchanged for or converted into cash,
property and/or a different number or kind of securities, or if cash, property,
and/or securities are distributed in respect of such outstanding securities, in
either case as a result of a reorganization, merger, or consolidation that shall
not have been affirmatively recommended to the stockholders of the Company by
the Board, or as a result of a recapitalization, reclassification, dividend
(other than a regular, quarterly cash dividend) or other distribution, stock
split, reverse stock split, or the like, then, unless such event shall cause
this Plan to terminate pursuant to Section 13(b) hereof, the Committee shall
make appropriate and proportionate adjustments in the following:
(a) the maximum number and type of shares or other securities that may
thereafter be sold under this Plan or acquired upon the exercise in full of
options and Stock Appreciation Rights thereafter granted under this Plan;
(b) the number and type of shares or other securities or cash or other
property that may be acquired upon the exercise in full of options and Stock
Appreciation Rights theretofore granted under this Plan; and
(c) the number and type of securities thereafter subject to the
restrictions previously imposed upon other securities under this Plan;
provided, however, that any such adjustments in options theretofore granted
under this Plan shall be made without changing the aggregate exercise price
of the unexercised portions of such options.
12. Acceleration. All outstanding options and Stock Appreciation Rights
theretofore granted under this Plan shall become fully exercisable, and all
restrictions imposed upon Restricted Shares theretofore sold under this Plan
shall terminate, upon the first to occur of the following (the "Acceleration
Date"):
(a) the date of dissemination to the stockholders of the Company of a
proxy statement seeking stockholder approval of a reorganization, merger, or
consolidation of the Company as a result of which the outstanding securities
of the class then subject to this Plan are exchanged for or converted into
cash, property, and/or securities not issued by the
9
EXHIBIT 4.3
<PAGE> 10
Company, unless such reorganization, merger, or consolidation shall have
been affirmatively recommended to the stockholders of the Company by the
Board;
(b) the first date of public announcement that any person or entity,
together with all Affiliates and Associates (as such capitalized terms are
defined in Rule 12b-2 promulgated under the 1934 Act) of such person or
entity, shall have become, or shall intend to become, or shall have
commenced a tender offer or exchange offer the consummation of which would
result in such person or entity becoming, the Beneficial Owner (as defined
in Rule 13d-3 promulgated under the 1934 Act) of voting securities of the
Company representing 25% or more of the voting power of the Company,
provided, however, that the terms "person" and "entity," as used in this
subsection (b), shall not include (i) the Company or any of its
subsidiaries, (ii) any employee benefit plan of the Company or any of its
subsidiaries, (iii) any entity holding voting securities of the Company for
or pursuant to the terms of any such plan, (iv) any person or entity who or
which, together with all Affiliates and Associates of such person or entity
is, on the date of adoption of this Plan by the Board, the Beneficial Owner
of voting securities of the Company representing 15% or more of the voting
power of the Company, or (v) any Affiliate or Associate of any person or
entity described in (iv) above;
(c) the first date upon which directors of the Company who were
nominated by the Board for election as directors shall cease to constitute a
majority of the authorized number of directors of the Company; or
(d) the date of dissemination to the stockholders of the Company of a
proxy statement disclosing a change of control of the Company.
13. Termination. This Plan and all outstanding options and Stock
Appreciation Rights theretofore granted under this Plan shall terminate upon the
first to occur of the following:
(a) the dissolution or liquidation of the Company;
(b) a reorganization, merger, or consolidation of the Company as a
result of which the outstanding securities of the class then subject to this
Plan are exchanged for or converted into cash, property, and/or securities
not issued by the Company, which reorganization, merger, or consolidation
shall have been affirmatively recommended to the stockholders of the Company
by the Board; or
(c) a sale of substantially all of the property and assets of the
Company.
14. Amendment of Plan. The Board may alter, amend, suspend, or terminate
this Plan, provided that no such action shall deprive the purchaser of any
Restricted Shares theretofore sold under this Plan or the optionee of any option
theretofore granted under this
10
EXHIBIT 4.3
<PAGE> 11
Plan, without the consent of such purchaser or optionee, of such Restricted
Shares or option or of any rights of such person thereunder or with respect
thereto. Except as provided in this Plan, no such action of the Board, unless
and until such action is approved by the stockholders of the Company, may:
(a) increase the maximum number of Common Shares that may be sold as
Restricted Shares under this Plan;
(b) increase the maximum number of Common Shares that maybe acquired
upon the exercise in full of options granted under this Plan, or of Stock
Appreciation Rights granted in connection therewith, in the aggregate;
(c) reduce the purchase price of Restricted Shares that may thereafter
be sold under this Plan, or the minimum permissible exercise price of
options theretofore granted or that may thereafter be granted under this
Plan;
(d) the class of persons eligible to be considered for the sale of
Restricted Shares or grant of options under this Plan;
(e) the administration of the Plan from the Committee or render the
members of the Committee eligible to receive options, rights, or stock under
the Plan while serving as such;
(f) extend the duration of this Plan; or
(g) materially increase the benefits accruing to the purchasers of
Restricted Shares theretofore sold or that may thereafter be sold under this
Plan, or the benefits accruing to the optionees of options theretofore
granted or that may thereafter be granted under this Plan.
15. Effective Date of Plan. This Plan shall become effective on the date on
which it is accepted by the Board (the "Effective Date"). This Plan shall be
approved by the stockholders of the Company, consistent with applicable laws,
within twelve (12) months after the Effective Date. Options may be granted under
this Plan after the Effective Date provided that, in the event that stockholder
approval is not obtained within such period, this Plan and all options granted
hereunder shall terminate. No Option granted after the Effective Date shall be
exercisable on or before the date that the Plan is approved by the stockholders
of the Company.
16. Legal Restrictions. Nothing herein, in any agreement entered into
hereunder, or in any option or right granted hereunder shall require the Company
to sell any Restricted Shares or issue any Common Shares upon exercise of any
option or right if such sale or issuance would, in the opinion of counsel for
the Company, constitute a violation of the Securities Act of 1933, as amended,
or any similar or superseding statute or statutes, or any applicable statute or
11
EXHIBIT 4.3
<PAGE> 12
regulation, as then in effect. At the time of any sale of Restricted Shares or
exercise of an option or right, the Company may, as a condition precedent to the
sale of such stock or exercise of such option or right, require from the holder
of the stock, stock option, or right (or in the event of his death, his legal
representatives, legatees, or distributees, or in the event of a Qualified
Domestic Relations Order, his alternate payee) such written representations, if
any, concerning his (or the transferee's) intentions with regard to the
retention or disposition of the Common Shares being acquired by purchase of such
Restricted Shares or exercise of such option or right and such written covenants
and agreements, if any, as to the manner of disposal of such Common Shares as,
in the opinion of counsel to the Company, may be necessary to ensure that any
disposition by such holder (or in the event of his death, his legal
representatives, legatees, or distributees, or in the event of a Qualified
Domestic Relations Order, his alternate payee), will not involve a violation of
the Securities Act of 1933, as amended, or any similar or superseding statute or
statutes, or any other applicable state or federal statute or regulation, as
then in effect. Certificates for Common Shares, when issued, shall have
appropriate legends, or statements of other applicable restrictions, endorsed
thereon, and may or may not be immediately transferable.
17. Governing Law. All questions arising with respect to the provisions of
the Plan or any Option Agreement or Restricted Stock Agreement shall be
determined by application of the laws of the State of Delaware except to the
extent Delaware law is preempted by federal law. The obligation of the Company
to sell and deliver Common Shares hereunder is subject to applicable laws and to
the approval of any governmental authority required in connection with the
authorization, issuance, sale, or delivery of such Common Shares.
12
EXHIBIT 4.3
<PAGE> 13
EXHIBIT A
PROMISSORY NOTE
LOS ANGELES, CALIFORNIA
$ 199__
FOR VALUE RECEIVED, ("Borrower") hereby promises to pay to the order of
Sizzler International Inc., a Delaware corporation ("Lender"), at such place as
shall be designated by Lender from time to time, the principal sum of ($ ) with
interest thereon upon all principal remaining from time to time unpaid computed
from the date hereof at an annual rate equal to the prime rate or reference rate
announced from time to time by Manufacturers Hanover Trust or any successor in
interest thereof.
Principal and interest shall be paid in five equal annual installments
of an amount calculated to pay in full all principal and interest due hereunder,
which installments shall be due and payable on the first anniversary hereof and
on each anniversary thereafter to and including the fifth anniversary hereof;
provided, however, that all principal and all accrued but unpaid interest shall
be due and payable on the fifth anniversary hereof.
Borrower shall have the right at any time and without prepayment premium to
prepay any or all of the accrued but unpaid interest and the outstanding
principal balance; provided, however that each prepayment made by Borrower to
the holder hereof shall be credited first to the accrued but unpaid interest and
any remainder to the outstanding principal balance, and interest shall thereupon
cease to accrue with respect to principal so credited.
Upon the failure to make any payment as provided herein, the holder hereof
may apply payments received on any amounts due hereunder as the holder hereof
may determine, and if the holder hereof so elects, notice of such election being
expressly waived, the outstanding principal balance hereunder together with all
accrued interest thereon shall at once become due and payable. In the event of
such acceleration, the holder hereof shall credit all payments received on any
amounts due hereunder first to the accrued but unpaid interest due hereunder,
and then any remainder to the outstanding principal balance hereunder.
All agreements between Borrower and the holder hereof are expressly limited
so that in no contingency or event whatsoever, whether by reason of advancement
of the proceeds hereof, acceleration of the maturity of the unpaid principal
balance hereof, or otherwise, shall the amount paid or agreed to be paid to the
holder hereof for the use, forbearance, or detention of the money to be advanced
hereunder exceed the highest lawful rate permissible under applicable usury
laws. If, from any circumstances whatsoever, fulfillment of any provision of
this Promissory Note or of any other agreement referred to herein, at the time
performance of such provision shall be due, shall involve transcending the limit
of validity prescribed by law which a court of competent jurisdiction may deem
applicable hereto, then ipso facto, the obligation to be fulfilled shall be
reduced to the limit of such validity, and if from any circumstances the holder
hereof shall ever receive as interest an amount that would exceed the highest
lawful rate, such amount that would be excessive interest shall be applied to
the reduction of the unpaid principal balance due hereunder and not to the
payment of interest. This provision shall control every other provision of all
agreements between Borrower and the holder hereof.
If this Promissory Note is not paid when due, whether at maturity or by
acceleration, Borrower promises to pay all costs of collection incurred by the
holder hereof, including, but not limited to, reasonable attorneys' fees,
whether or not suit is filed hereon.
<PAGE> 1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in the Form S-8 Registration Statement and related
Prospectus pertaining to the Sizzler International, Inc. 1997 Employee Stock
Incentive Plan as amended through August 18, 1998 of our report, dated
June 16, 1999, with respect to the consolidated financial statements and
schedules of Sizzler International, Inc. included in Sizzler International,
Inc.'s Form 10-K for its fiscal year ended April 30, 1999 filed with the
Securities and Exchange Commission and to all references to our Firm included
in the Form S-8.
/s/ ARTHUR ANDERSEN LLP
Los Angeles, California
August 20, 1999
EXHIBIT 23.1
