As filed with the Securities and Exchange Commission on July 25, 1996
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
---------------
HOMETOWN BUFFET, INC.
(Exact name of registrant as specified in its charter)
---------------
Delaware 33-0463002
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
9171 Towne Centre Drive, #575
San Diego, California 92122
(Address of Principal (Zip Code)
Executive Offices)
---------------
HomeTown Buffet, Inc.
1991 Stock Incentive Plan
(Full title of plan)
Glenn E. Glasshagel
HomeTown Buffet, Inc
9171 Towne Centre Drive, #575
San Diego, CA 92122
(Name and address of agent for service)
(619) 546-9096
(Telephone number, including area code, of agent for service)
Copy to:
John R. Thomas
Stoel Rives LLP
900 SW Fifth Avenue, Suite 2300
Portland, Oregon 97204-1268
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities To Be Price per Offering Registration
To Be Registered Registered Share (1) Price (1) Fee
- -------------------------- ---------- --------- ----------- ------------
<S> <C> <C> <C> <C>
Common Stock,
$0.01 par value 1,600,000 Shares $13.82 $16,331,397 $5,632
- ---------------------------------------------------------------------------------------------------
<FN>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933. Of the
shares to be registered, 1,439,145 shares are subject to options with
an aggregate exercise price of $14,108,380. The calculation of the
registration fee for the balance of the shares is based on $13.82,
which was the average of the high and low prices of the Common Stock
on July 23, 1996 as reported in The Wall Street Journal for Nasdaq
National Market issues.
</FN>
</TABLE>
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
---------------------------------------
The following documents filed by HomeTown Buffet, Inc. (the
"Company") with the Securities and Exchange Commission are incorporated
herein by reference:
(a) The Company's latest annual report filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 or the latest
prospectus filed pursuant to rule 424(b) under the Securities Act of
1933 that contains audited financial state ments for the Company's
latest fiscal year for which such statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 since the end of the fiscal year
covered by the annual report or prospectus referred to in (a) above.
(c) The description of the authorized capital stock of the Company
con tained in the Company's registration statement filed under section
12 of the Securities Exchange Act of 1934, including any amendment or
report filed for the purpose of updating the description.
All reports and other documents subsequently filed by the Company
pursuant to sections 13(a) and (c), 14 and 15(d) of the Securities Exchange
Act of 1934, as amended, prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of
the filing of such reports and documents.
Item 4. Description of Securities.
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 145 of the Delaware General Corporation Law ("GCL")
provides, in summary, that the directors and officers of the Company may,
under certain circumstances, be indemnified by the Company against all
expenses incurred by or
II-1
<PAGE>
imposed upon them as a result of actions, suits or proceedings brought
against them as such directors and officers, or as directors or officers of
any other organization at the request of the Company, if they act in good
faith and in a manner they reasonably believe to be in or not opposed to
the best interests of the Company, and with respect to any criminal action
or proceeding, have no reasonable cause to believe their conduct was
unlawful. No indemnification shall be made, however, against expenses with
respect to any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Company unless and only to the extent
that the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of
all the circumstances of the case, they are fairly and reasonably entitled
to indemnity for such expenses which such court shall deem proper. Section
145 of the Delaware GCL also provides that directors and officers of the
Company are entitled to such indemnification by the Company to the extent
that such persons are successful on the merits or otherwise in defending
such action, suit or proceeding. The Company's Restated Certificate and
Bylaws provide for the indemnification by the Company of officers and
directors to the fullest extent permitted by Section 145 of the Delaware
GCL. Reference is made to the Restated Certificate and Amended Bylaws of
the Company incorporated by reference hereto.
Section 102 of the Delaware GCL provides that a corporation, in
its Certificate of Incorporation, may eliminate the personal liability of
its directors to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, other than liability for (1)
any breach of the director's duty of loyalty to the corporation or its
stockholders, (2) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) any transaction
from which the director derived an improper personal benefit and (4)
unlawful payment of dividends, or unlawful stock purchases or redemptions.
The Restated Certificate provides for the elimination of personal liability
of the Company's directors to the fullest extent permitted by law.
Reference is made to the Restated Certificate incorporated by reference
hereto.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in
the Securities Act of 1933 and is therefore unenforceable.
Item 7. Exemption From Registration Claimed.
-----------------------------------
Not Applicable.
II-2
<PAGE>
Item 8. Exhibits.
--------
4.1 Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1, File No. 33-67326).
4.2 Amended Bylaws (incorporated by reference to Exhibit 3.2 to
the Company's Quarterly Report on Form 10-Q for the quarter
ended April 24, 1996).
5.1 Opinion of Stoel Rives LLP.
23.1 Consent of KPMG Peat Marwick LLP (see page II-7).
23.2 Consent of Stoel Rives LLP (included in Exhibit 5.1).
24.1 Power of Attorney.
Item 9. Undertakings.
------------
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(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;
(iii)To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
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<PAGE>
(2) 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 be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act 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
that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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
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 Act and will be
governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Diego, State of California,
on July 25, 1996.
HOMETOWN BUFFET, INC.
By GLENN E. GLASSHAGEL
------------------------------------------
Glenn E. Glasshagel
Vice President of Finance, Chief Financial
Officer and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on July 25, 1996.
Signature Title
--------- -----
C. DENNIS SCOTT Chairman of the Board, Chief
- ---------------------------------- Executive Officer and Director
C. Dennis Scott (Principal Executive Officer)
GLENN E. GLASSHAGEL Vice President of Finance, Chief
- ---------------------------------- Financial Officer and Treasurer
Glenn E. Glasshagel (Principal Financial and
Accounting Officer)
II-5
<PAGE>
NEAL L. WICHARD* Director
- ----------------------------------
Neal L. Wichard
REBECCA McKINNON* Director
- ----------------------------------
Rebecca McKinnon
DR. CHRISTIAN F. HORN* Director
- ----------------------------------
Dr. Christian F. Horn
PHILLIP RATNER* Director
- ----------------------------------
Phillip Ratner
KERRY A. KRAMP* Director
- ----------------------------------
Kerry A. Kramp
PHILIP FRIEDMAN* Director
- ----------------------------------
Philip Friedman
*By GLENN E. GLASSHAGEL
-------------------------------------
Glenn E. Glasshagel, Attorney-in-Fact
II-6
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 and related Prospectus of HomeTown Buffet, Inc. of
our report dated February 16, 1996, except as to note 6, which is as of
March 8, 1996, relating to the consolidated balance sheets of HomeTown
Buffet, Inc. and subsidiaries as of December 31, 1995 and 1994, and the
related consolidated statements of income, stockholders' equity (deficit)
and cash flows for each of the years in the three-year period ended
December 31, 1995, which report appears in the December 31, 1995 Annual
Report on Form 10-K of HomeTown Buffet, Inc. and to the reference to our
firm under the heading "Experts" in the Prospectus.
San Diego, California KPMG Peat Marwick LLP
July 25, 1996
II-7
<PAGE>
EXHIBIT INDEX
Sequential
Exhibit Page
Number Document Description Number
- ------ -------------------- ------
4.1 Amended and Restated Certificate
of Incorporation (incorporated by
reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1,
File No. 33-67326).
4.2 Amended Bylaws (incorporated by reference
to Exhibit 3.2 to the Company's Quarterly
Report on Form 10-Q for the quarter
ended April 24, 1996).
5.1 Opinion of Stoel Rives LLP.
23.1 Consent of KPMG Peat Marwick LLP
(see page II-7).
23.2 Consent of Stoel Rives LLP
(included in Exhibit 5.1).
24.1 Power of Attorney.
II-8
EXHIBIT 5.1
July 25, 1996
Board of Directors
HomeTown Buffet, Inc.
9171 Towne Centre Drive, #575
San Diego, CA 92122
We have acted as counsel for HomeTown Buffet, Inc. (the "Company")
in connection with the filing of a Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended,
covering 1,600,000 shares of common stock (the "Shares") of the Company
issuable in connection with the Company's 1991 Stock Incentive Plan, as
amended (the "Plan"). We have reviewed the corporate actions of the Company
in connection with this matter and have examined those documents, corporate
records, and other instruments we deemed necessary for the purposes of this
opinion.
Based on the foregoing, it is our opinion that:
1. The Company is a corporation duly organized and validly
existing under the laws of the State of Delaware; and
2. The Shares have been duly authorized and, when issued pursuant to
the Plan and in accordance with the resolutions adopted by the Board of
Directors of the Company, will be legally issued, fully paid, and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
STOEL RIVES LLP
EXHIBIT 24.1
POWER OF ATTORNEY
-----------------
(1991 Stock Incentive Plan)
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer
and/or director of HOMETOWN BUFFET, INC., does hereby constitute and
appoint C. DENNIS SCOTT and GLENN E. GLASSHAGEL, and each of them, his or
her true and lawful attorney and agent to do any and all acts and things
and to execute in his or her name (whether on behalf of HomeTown Buffet,
Inc. or as an officer or director of said Company, or otherwise) any and
all instruments which said attorney and agent may deem necessary or
advisable in order to enable HomeTown Buffet, Inc. to comply with the
Securities Act of 1933, as amended, and any requirements of the Securities
and Exchange Commission in respect thereof, in connection with the
registration under the Securities Act of 1933, as amended, of shares of
Common Stock of HomeTown Buffet, Inc. issuable pursuant to the 1991 Stock
Incentive Plan, as amended, including specifically, but without limitation
thereto, power and authority to sign his or her name (whether on behalf of
HomeTown Buffet, Inc. or as an officer or director of said Company, or
otherwise) to a Registration Statement on Form S-8 and any amendment
thereto (including any post-effective amendment) or application for
amendment thereto in respect to such Common Stock or any exhibits filed
therewith; and to file the same with the Securities and Exchange
Commission; and the undersigned does hereby ratify and confirm all that
said attorney and agent shall do or cause to be done by virtue hereof.
DATED: July 25, 1996
C. DENNIS SCOTT PHILIP FRIEDMAN
- ---------------------------------- -----------------------------------
C. Dennis Scott Philip Friedman
NEAL L. WICHARD REBECCA MCKINNON
- ---------------------------------- -----------------------------------
Neal L. Wichard Rebecca McKinnon
DR. CHRISTIAN F. HORN PHILLIP RATNER
- ---------------------------------- -----------------------------------
Dr. Christian F. Horn Phillip Ratner
KERRY A. KRAMP
- ----------------------------------
Kerry A. Kramp
