AS FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION ON JULY 1, 2002
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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TOTAL ENTERTAINMENT RESTAURANT CORP.
(Exact name of registrant as specified in its charter)
DELAWARE 52-2016614
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
9300 E. CENTRAL AVE., SUITE 100
WICHITA, KS 67206
(316) 634-0505
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
1997 INCENTIVE AND NONQUALIFIED STOCK OPTION
PLAN OF TOTAL ENTERTAINMENT RESTAURANT CORP.
TOTAL ENTERTAINMENT RESTAURANT CORP.
1997 DIRECTORS' STOCK OPTION PLAN
(FULL TITLE OF PLANS)
STEVEN M. JOHNSON
CHIEF EXECUTIVE OFFICER
TOTAL ENTERTAINMENT RESTAURANT CORP.
9300 E. CENTRAL AVE., SUITE 100
WICHITA, KS 67206, (316) 634-0505
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO
WILLIAM R. WOOD, II
FOULSTON SIEFKIN LLP
BANK OF AMERICA CENTER
100 N. BROADWAY, SUITE 700
WICHITA, KS 67202
(316) 267-6371
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CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE AMOUNT OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED TO BE REGISTERED (1) PER SHARE PRICE REGISTRATION FEE
--------------------------- -------------------- --------- ----- ----------------
Common Stock, par value $0.01
1997 Incentive and Nonqualified Stock
Option Plan 1,419,278 $ 14.37 (2) $ 20,395,025 (2) 1,877
----------- ------- ------------ ---------
1997 Directors Stock Option Plan 371,000 14.37 (2) 5,331,270 (2) 491
----------- ------- ------------ ---------
Total 1,790,278 $ 14.37 (2) $ 25,726,295 (2) $ 2,368
----------- ------- ------------ ---------
(1) This Registration Statement also covers such additional and indeterminate
number of shares as may become issuable pursuant to the antidilution provisions
of the employee benefit plans described herein and as promulgated by Rule 416 of
the Securities Act of 1933, as amended.
(2) Estimated solely for the purpose of computing the registration fee required
by Section 6(b) of the Securities Act, and computed pursuant to Rule 457(c) and
(h) of the Securities Act of 1933 as amended. The computation was based on the
average of the high and low prices of our common stock as reported by the Nasdaq
National Market on June 26, 2002.
PART I
As permitted by the rules of the Securities and Exchange Commission (the
"Commission"), this Registration Statement omits the information specified in
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the SEC by Total Entertainment
Restaurant Corp. (the "Registrant") are hereby incorporated by reference, as of
their respective dates, in this Registration Statement, except to the extent
that any statement therein is modified, superseded, or replaced by a statement
or information contained in any subsequently filed document incorporated herein
by reference:
(a) The Registrant's annual report on Form 10-K for the fiscal
year ended December 25, 2001.
(b) The Registrant's Quarterly Report on Form 10-Q filed for the
period ended March 19, 2002.
(c) The description of the Registrant's Common Stock, par value
$.01 per share, contained in the Registrant's Registration
Statement on Form S-2 under the Securities Act of 1933, as
amended (Commission File No. 333-90542), filed June 14, 2002,
including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Securities Exchange Act of 1934, prior to the filing
of a post-effective amendment that indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
The Company's certificate of incorporation provides that it shall indemnify
to the extent permitted by Delaware law any person whom it may indemnify
thereunder, including its directors, officers, employees and agents. The
Company's bylaws provide that such indemnification (other than an order by a
court) shall be made by the Company only upon a determination that
indemnification is proper in the circumstances because the individual met the
applicable standard of conduct. Advances for such indemnification may be made
pending such determination. Such determination shall be made by a majority vote
of a quorum consisting of disinterested directors, by independent legal counsel
or by the stockholders. In addition, the Company's certificate of incorporation
eliminates, to the extent permitted by Delaware law, personal liability of
directors to the Company and its stockholders for monetary damages for breach of
fiduciary duty as directors.
The Company's authority to indemnify our directors and officers is governed
by the provisions of Section 145 of the Delaware General Corporation Law, as
follows:
(a) A corporation shall have power to indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation)
by reason of the fact that the person is or was a director,
officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director,
officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
the person in connection with such action, suit or proceeding
if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to
believe the person's conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which the
person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe
that the person's conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by
reason of the fact that the person is or was a director,
officer, employee or agent of the corporation, or is or was
serving
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at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by the
person in connection with the defense or settlement of such
action or suit if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed
to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to
be liable to the corporation unless and only to the extent
that the Court of Chancery or the court in which such action
or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of
a corporation has been successful on the merits or otherwise
in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of this section, or in defense of any
claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection
therewith.
(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a
determination that indemnification of the present or former
director, officer, employee or agent is proper in the
circumstances because the person has met the applicable
standard of conduct set forth in subsections (a) and (b) of
this section. Such determination shall be made, with respect
to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are
not parties to such action, suit or proceeding, even though
less than a quorum, or (2) by a committee of such directors
designated by majority vote of such directors, even though
less than a quorum, or (3) if there are no such directors, or
if such directors so direct, by independent legal counsel in a
written opinion, or (4) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount
if it shall ultimately be determined that such person is not
entitled to be indemnified by the corporation as authorized in
this section. Such expenses (including attorneys' fees)
incurred by former directors and officers or other employees
and agents may be so paid upon such terms and conditions, if
any, as the corporation deems appropriate.
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(f) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other subsections of this section
shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may
be entitled under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in
such person's official capacity and as to action in another
capacity while holding such office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director,
officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against
any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would
have the power to indemnify such person against such liability
under this section.
(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or
is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or
other enterprise, shall stand in the same position under this
section with respect to the resulting or surviving corporation
as such person would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references
to "fines" shall include any excise taxes assessed on a person
with respect to any employee benefit plan; and references to
"serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries; and
a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests
of the corporation" as referred to in this section.
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(j) The indemnification and advancement of expenses provided by,
or granted pursuant to, this section shall, unless otherwise
provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent
and shall inure to the benefit of the heirs, executors and
administrators of such a person.
The Company has entered into Indemnification Agreements with four of
its current and certain of its former directors and officers whereby the Company
agreed to indemnify them from and against any and all expenses, losses, claims,
damages and liability incurred by such director or officer for or as a result of
action taken or not taken while such director or officer was acting in his
capacity as the Company's director, officer, employee or agent. The Company also
agreed to use its best efforts to obtain officers and directors' liability
insurance for such officers and directors.
See Item 9(c) below with respect to the Securities and Exchange
Commissions' position on indemnification and the registrants' undertaking with
respect thereto.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
The following exhibits are filed as part of this Form S-8 Registration
Statement:
Exhibit No. Description
----------- -----------
*4.1 Specimen Certificate of Registrant's Common Stock.
5.1 Opinion of Foulston Siefkin LLP.
*10.1 Form of 1997 Incentive and Nonqualified Stock Option
Plan of the Registrant.
10.1.1 Amendment to Form of 1997 Incentive and Nonqualified
Stock Option Plan of the Registrant effective as of
May 25, 1999.
*10.2 Form of 1997 Directors Stock Option Plan of the
Registrant.
10.2.1 Amendment to Form of 1997 Directors Stock Option Plan
of the Registrant effective as of May 17, 2002.
23.1 Consent of Foulston Siefkin LLP (contained in Exhibit
5.1).
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23.2 Consent of KPMG LLP.
23.3 Consent of Grant Thornton LLP.
24.1 Power of Attorney (included on signature page of this
Registration Statement).
*Incorporated by reference to the Registrant's
Registration Statement on Form S-1, as amended
(Commission File No. 333-23343).
Item 9. Undertakings.
(a) The 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 this 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)
above 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.
(2) That for the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment to this
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.
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(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 this
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 that, insofar as
indemnification for liabilities, arising under the Securities Act of 1933, may
be permitted to directors, officers, and controlling persons of 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 Securities Act of 1933 and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe 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 Wichita, State of Kansas, on July 1, 2002.
TOTAL ENTERTAINMENT RESTAURANT CORP.
By /s/ STEVEN M. JOHNSON
----------------------------------------------------
Steven M. Johnson
Chief Executive Officer/Principal Executive Officer
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POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears
below hereby constitutes and appoints Steven M. Johnson, Gary M. Judd, James K.
Zielke, and each of them, his true and lawful attorney-in-fact and agent, 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 exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and to authorize, approve, sign and cause to
be filed such other documents as may be necessary or appropriate to qualify the
securities which are the subject of the Registration Statement for offer and
sale under the Blue Sky and other applicable laws of each jurisdiction in which
such securities may be offered and sold, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or either of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1933, this
Registration Statement has been signed below by the following persons and in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ DENNIS L. THOMPSON Co-Chairman of the Board July 1, 2002
---------------------------
Dennis L. Thompson
/s/ STEPHEN P. HARTNETT Co-Chairman of the Board July 1, 2002
-----------------------
Stephen P. Hartnett
/s/ STEVEN M. JOHNSON Chief Executive Officer and July 1, 2002
--------------------------- Director (principal executive
Steven M. Johnson officer)
/s/ GARY M. JUDD President and Director July 1, 2002
---------------------------
Gary M. Judd
/s/ JAMES K. ZIELKE Chief Executive Officer, July 1, 2002
--------------------------- Treasurer, Secretary and
James K. Zielke Director (principal financial
and principal accounting
officer)
/s/ THOMAS A. HAGER Director July 1, 2002
---------------------------
Thomas A. Hager
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/s/ C. WELLS HALL, III Director July 1, 2002
---------------------------
C. Wells Hall, III
/s/ E. GENE STREET Director July 1, 2002
---------------------------
E. Gene Street
/s/ JOHN D. HARKEY, JR. Director July 1, 2002
---------------------------
John D. Harkey, Jr.
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------- -----------
*4.1 Specimen Certificate of Registrant's Common Stock.
5.1 Opinion of Foulston Siefkin LLP.
*10.1 Form of 1997 Incentive and Nonqualified Stock Option
Plan of the Registrant.
10.1.1 Amendment to Form of 1997 Incentive and Nonqualified
Stock Option Plan of the Registrant effective as of
May 25, 1999.
*10.2 Form of 1997 Directors Stock Option Plan of the
Registrant.
10.2.1 Amendment to Form of 1997 Directors Stock Option Plan
of the Registrant effective as of May 17, 2002.
23.1 Consent of Foulston Siefkin LLP (contained in Exhibit
5.1).
23.2 Consent of KPMG LLP.
23.3 Consent of Grant Thornton LLP.
24.1 Power of Attorney (included on signature page of this
Registration Statement).
*Incorporated by reference to the Registrant's
Registration Statement on Form S-1, as amended
(Commission File No. 333-23343).