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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 24, 1997
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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POLLO TROPICAL, INC.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
FLORIDA 65-0100964
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(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
7300 N. KENDALL DRIVE, 8TH FLOOR
MIAMI, FLORIDA 33156
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(Address of Principal Executive Offices)
POLLO TROPICAL, INC. 1995 DIRECTORS' STOCK OPTION PLAN
POLLO TROPICAL, INC. 1995 RESTRICTED STOCK AWARD PLAN
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(FULL TITLE OF THE PLANS)
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LARRY J. HARRIS
POLLO TROPICAL, INC.
7300 N. KENDALL DRIVE, 8TH FLOOR
MIAMI, FLORIDA 33156
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(NAME AND ADDRESS OF AGENT FOR SERVICE)
(305) 670-7696
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(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copy to:
Keith Wasserstrom, Esq.
Greenberg, Traurig, Hoffman,
Lipoff, Rosen & Quentel, P.A.
515 E. Las Olas Boulevard
Fort Lauderdale, Florida 33301
(954) 768-8281
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF REGISTRATION
TO BE REGISTERED AMOUNT TO BE REGISTERED SHARE (1) PRICE (2) FEE
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<S> <C> <C> <C> <C>
COMMON STOCK, 300,000
$.01 PAR VALUE . . . . SHARES $4.50 $1,165,500 $353
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(1) Estimated solely for purpose of calculating the registration fee.
(2) Computed in accordance with Rule 457(h) on the basis of (i) the actual
price of $4.50 for 54,000 of the options to purchase Common Stock being
registered, which have already been granted, and (ii) the average of the
high and low sale price of the Common Stock on February 20, 1997 ($4.375)
with respect to (a) the 146,000 shares of Common Stock subject to future
grants of options and (b) the 100,000 shares of Common Stock subject to
future awards under the Restricted Stock Award Plan.
Page 1 of 7 Pages
Exhibit Index at Page II-4
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PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this Registration
Statement the following documents:
(i) the Registrant's latest Annual Report on Form 10-K;
(ii) all other reports and documents filed by the
Registrant pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), since the end
of the fiscal year covered by the Registrant's latest Annual Report on
Form 10-K; and
(iii) the description of the Registrant's Common Stock
contained in the Registrant's registration statement on Form S-1 (No.
33-68266) filed with the Commission, as amended.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated herein by reference and to be a part hereof from
the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Registrant has authority under Section 607.0850 of the Florida
Business Corporation Act to indemnify its directors and officers to the extent
provided for in such statute. The Registrant's Articles of Incorporation
provide that the Registrant shall indemnify and may insure its officers and
directors to the fullest extent not prohibited by law.
The provisions of the Florida Business Corporation Act that authorize
indemnification do not eliminate the duty of care of a director, and in
appropriate circumstances equitable remedies such as injunctive or other forms
of nonmonetary relief will remain available under Florida law. In addition,
each director will continue to be subject to liability for (a) violations of
criminal laws, unless the director had reasonable cause to believe his conduct
was lawful or had no reasonable cause to believe his conduct was unlawful, (b)
deriving an improper personal benefit from a transaction, (c) voting for or
assenting to an unlawful distribution and (d) willful misconduct or conscious
disregard for the best interests of the Registrant in a proceeding by or in the
right of the Registrant to procure a judgment in its favor or in a proceeding
by or in the right of a shareholder. The statute does not affect a director's
responsibilities under any other law, such as the federal securities or state
or federal environmental laws.
At present, there is no pending litigation or other proceeding
involving a director or officer of the Registrant as to which indemnification
is being sought, nor is the Registrant aware of any threatened litigation that
may result in claims for indemnification by any officer or director.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See "Exhibit Index" on page II-4 below.
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; and
(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) shall 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.
(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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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 has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Miami, State of Florida on February 20, 1997.
POLLO TROPICAL, INC.
By: /s/ LARRY J. HARRIS
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Larry J. Harris
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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/s/LARRY J. HARRIS Chairman of the Board, Chief February 20, 1997
- ---------------------------------- Executive Officer and (principal
Larry J. Harris executive officer)
/s/NICHOLAS A. CASTALDO President February 20, 1997
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Nicholas A. Castaldo
/s/ WILLIAM CARL DREW Chief Financial Officer February 20, 1997
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William Carl Drew
/s/ STUART I. HARRIS Secretary, Treasurer and Director February 20, 1997
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Stuart I. Harris
/s/ CLAYTON E. WILHITE Director February 20, 1997
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Clayton E. Wilhite
/s/ ALAN VITULI Director February 20, 1997
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Alan Vituli
/s/ CRAIG M. NASH Director February 20, 1997
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Craig M. Nash
/s/ RONALD L. MILLER Director February 20, 1997
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Ronald L. Miller
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EXHIBIT INDEX
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EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
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4.1 Pollo Tropical, Inc. 1995 Restricted Stock Award Plan(1) N/A
4.2 Pollo Tropical, Inc. 1995 Directors' Stock Option Plan(2) N/A
5 Opinion of Greenberg, Traurig, Hoffman, Lipoff, Rosen & 7
Quentel, P.A., and consent of counsel. . . . . . . . . .
23 Consent of Greenberg, Traurig, Hoffman, Lipoff, Rosen &
Quentel, P.A. is contained in its opinion included as
Exhibit 5 hereof N/A
24 Power of Attorney is included in the Signature Section of
this Registration Statement. . . . . . . . . . . . . . . 4
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______________________
(1) Incorporated by reference to Exhibit A as filed with the Registrant's
Notice of Annual Meeting and Proxy Statement for 1996, dated April 29, 1996
(the "1995 Proxy Statement").
(2) Incorporated by reference to Exhibit B of the 1995 Proxy Statement.
<PAGE> 1
February 21, 1997
Pollo Tropical, Inc.
7300 N. Kendall Drive, 8th Floor
Miami, Florida 33156
Gentlemen:
We have acted as counsel to Pollo Tropical, Inc., a Florida
corporation (the "Company"), and have reviewed the Company's Registration
Statement on Form S-8 covering 300,000 shares of the Company's authorized but
unissued common stock, $.01 par value (the "Common Stock"), issuable pursuant
to stock awards and options granted pursuant to the Company's 1995 Stock Award
Plan and 1995 Directors' Stock Option Plan (the "Plans"). It is our opinion
that the shares of Common Stock issuable under the Plans, when issued in
accordance with the terms of the Plans, will be validly issued, fully paid and
non-assessable.
We hereby consent to the use of this opinion in the above referenced
Registration Statement. In giving such consent, we do not thereby admit that
we come within the category of persons whose consent is required under Section
7 of the Securities Act of 1933, as amended, or the rules and regulations of
the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
GREENBERG, TRAURIG, HOFFMAN,
LIPOFF, ROSEN & QUENTEL, P.A.
