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As filed with the Securities and Exchange Commission on June 13, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________
MICHIGAN BREWERY, INC.
(Exact name of registrant as specified in its charter)
MICHIGAN 38-3196031
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
550 SOUTH WISCONSIN STREET
GAYLORD, MICHIGAN 49735
(Address, including zip code, of principal executive offices)
______________
MICHIGAN BREWERY, INC.
1996 DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
______________
ANTHONY P. DOMBROWSKI
CHIEF FINANCIAL OFFICER
550 SOUTH WISCONSIN AVENUE
GAYLORD, MICHIGAN 49735
(517) 731-0401
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPY TO:
CHRISTOPHER C. CLEVELAND, ESQ.
BRETT D. ANDERSON, ESQ.
BRIGGS AND MORGAN, P.A.
2400 IDS CENTER
80 SOUTH EIGHTH STREET
MINNEAPOLIS, MINNESOTA 55402
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum
Title of offering aggregate Amount of
securities to Amount to be price per offering registration
be registered Registered share (1) price fee
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Common Stock,
$.01 par value 100,000 shares $3.75 $375,000 $114
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(1) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(c) and based upon the
last reported sale for such stock on June 11, 1997, as
reported by the Nasdaq SmallCap Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company incorporates herein by reference the following documents or
portions of documents, as of their respective dates as filed with the Securities
and Exchange Commission:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year
ended December 29, 1996, filed pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended (the "1934 Act");
(b) The Company's Quarterly Report on Form 10-QSB for the fiscal
quarter ended March 30, 1996, filed pursuant to Section 13 of the 1934 Act;
and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form SB-2, Registration No. 333-3548.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934,
as amended, and prior to the filing of a post-effective amendment which
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 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 DIRECTORS AND OFFICERS
The Registrant, as a Michigan corporation, is subject to the Michigan
Business Corporation Act Section 450.1561 which provides that a corporation may
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 and whether formal or informal,
other than an action by or in the right of the corporation, by reason of the
fact that he or she 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, partner, trustee, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust or other enterprise,
whether for profit or not, against expenses, including attorneys' fees,
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or
proceeding if the person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation or its shareholders, and with respect to any criminal action or
proceeding, if the person had no reasonable cause to believe his 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, does not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the corporation or its shareholders,
and, with respect to any criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful. Section 450.1562 provides that a
corporation has the power to indemnify a person who was or is a party or is
threatened to be made a party to a threatened, pending, or completed action or
suit
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by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he or she 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, partner, trustee, employee, or agent of another foreign
or domestic corporation, partnership, joint venture, trust, or other enterprise,
whether for profit or not, against expenses, including attorneys' fees, and
amounts paid in settlement actually and reasonably incurred by the person in
connection with the 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 or its shareholders. Indemnification shall not be
made for a claim, issue or matter in which the person has been found liable to
the corporation except to the extent authorized in Section 450.1564c. Article
V, Section 3 of the Registrant's Bylaws generally provides that the Registrant
will indemnify its directors and officers to the fullest extent authorized or
permitted under the Michigan Business Corporation Act and that the Company will
make advancements of expenses at the request of a director or officer.
The Registrant's Restated Articles of Incorporation generally limit the
personal liability of directors for monetary damages for breaches of fiduciary
duty. If a director were to breach such duty in performing his or her duties as
a director, neither the Registrant nor its shareholders could recover monetary
damages from the director, and the only course of action available to the
Registrant's shareholders would be equitable remedies, such as an action to
enjoin or rescind a transaction involving a breach of fiduciary duty.
Article VII of the Registrant's Restated Articles of Incorporation provides that
a director shall not be personally liable to the corporation or its shareholders
for monetary damages for breach of the director's fiduciary duty. However,
Article VII does not eliminate or limit the liability of a director for any of
the following: (1) a breach of the director's duty of loyalty to the Company or
its shareholders; (2) acts or omissions not in good faith or that involve
intentional misconduct or knowing violation of law; (3) a violation of
Section 450.1551(1) of the Michigan Business Corporation Act; (4) a transaction
from which the director derived an improper personal benefit; and (5) an act or
omission occurring prior to the effective date of Article VII. To the extent
claims against directors are limited to equitable remedies, Article VII of the
Registrant's Restated Articles of Incorporation may reduce the likelihood of
derivative litigation and may discourage shareholders or management from
initiating litigation against directors for breach of their fiduciary duty.
Michigan corporations are also authorized to obtain insurance to protect
directors and officers from certain liabilities, including liabilities against
which corporations cannot indemnify their officers and directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
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5 Opinion of Briggs and Morgan, Professional Association.
23.1 Consent of Briggs and Morgan, Professional Association (included in
Exhibit 5).
23.2 Consent of Independent Public Accountants.
24 Powers of Attorney (included on Signature Page).
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes as follows:
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(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 the
foregoing 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.
(4) 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 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.
(b) 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 Gaylord, State of Michigan, on the 13th day of June,
1997.
MICHIGAN BREWERY, INC.
By /s/ William F. Rolinski
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William F. Rolinski
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints William F. Rolinski and Anthony P. Dombrowski, or
either of them (with full power to act alone), as his true and lawful attorneys-
in-fact and agents, with full powers of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any or all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, full power and authority to do and perform
each and every act and thing requisite or 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 their 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
registration statement has been signed by the following persons in the
capacities and on the date indicated.
/s/ William F. Rolinski President, Chief Executive June 13, 1997
- -------------------------- Officer and Director
William F.Rolinski (Principal Executive Officer)
/s/ Anthony P. Dombrowski Chief Financial Officer June 13, 1997
- ------------------------- (Principal Financial Officer
Anthony P. Dombrowski and Principal Accounting Officer)
- ------------------------ Director
Casimer I. Zaremba
/s/ Blair A. Murphy, D.O.
- ------------------------- Director June 13, 1997
Blair A. Murphy, D.O.
/s/ Henry T. Siwecki
- ------------------------ Director June 13, 1997
Henry T. Siwecki
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EXHIBIT INDEX
Exhibit
Number Description
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5 Opinion of Briggs and Morgan, Professional Association.
23.2 Consent of Independent Public Accountants.
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EXHIBIT 5
BRIGGS AND MORGAN
PROFESSIONAL ASSOCIATION
2400 IDS CENTER
MINNEAPOLIS, MN 55402
(612) 334-8400
June 13, 1997
Writer's Direct Dial Number:
(612) 334-8489
Michigan Brewery, Inc.
550 South Wisconsin Avenue
Gaylord, Michigan 49735
RE: MICHIGAN BREWERY, INC.
1996 DIRECTOR STOCK OPTION PLAN
REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
In connection with the proposed issuance of 100,000 shares of common stock,
$.01 par value (the "Shares"), of Michigan Brewery, Inc. (the "Company") to be
issued upon exercise of options granted under the Company's 1996 Director Stock
Option Plan (the "Plan") and registered with the Securities and Exchange
Commission on Form S-8, we have examined such documents and have reviewed such
questions of law as we have considered necessary and appropriate for the
purposes of this opinion and, based thereon, we advise you that, in our opinion
the Shares have been duly authorized by the Company and when duly executed and
authenticated and paid for and delivered in accordance with the terms of the
Plan referred to above, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the above
described Registration Statement.
Very truly yours,
BRIGGS AND MORGAN,
Professional Association
By /s/ Christopher C. Cleveland
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Christopher C. Cleveland
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 24, 1997
included in Michigan Brewery, Inc.'s Form 10-KSB for the year ended
December 29, 1996 and to all references to our firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Minneapolis, Minnesota,
June 13, 1997
