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As filed with the Securities and Exchange Commission on January 26, 1999
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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BIG BUCK BREWERY & STEAKHOUSE, INC.
(Exact Name of Registrant as Specified in Its Charter)
MICHIGAN 5813 38-3196031
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification No.)
550 SOUTH WISCONSIN STREET
GAYLORD, MICHIGAN 49735
(Address, including Zip Code, of Principal Executive Offices)
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BIG BUCK BREWERY & STEAKHOUSE, INC.
NONQUALIFIED STOCK OPTION AGREEMENTS
(Full Title of the Plan)
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WILLIAM F. ROLINSKI COPIES TO:
President and Chief Executive Officer CHRISTOPHER C. CLEVELAND, ESQ.
Big Buck Brewery & Steakhouse, Inc. BRETT D. ANDERSON, ESQ.
550 South Wisconsin Street Briggs and Morgan
Gaylord, Michigan 49735 Professional Association
(517) 731-0401 2400 IDS Center
(Name, Address, including Zip Code, Minneapolis, Minnesota 55402
and Telephone Number, including Area (612) 334-8400
Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
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PROPOSED
PROPOSED MAXIMUM MAXIMUM AMOUNT OF
AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE FEE
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BIG BUCK BREWERY & STEAKHOUSE, INC.
NONQUALIFIED STOCK OPTION AGREEMENTS
Options to purchase Common Stock . . . . . . . 75,000 N/A N/A N/A
Common Stock (par value $0.01) . . . . . . . . 75,000 shares $3.00 $225,000 $63
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Big Buck Brewery & Steakhouse,
Inc. Nonqualified Stock Option Agreements by reason of any stock dividend,
stock split, recapitalization or other similar transaction effected without
the receipt of consideration which results in an increase in the number of
outstanding shares of Common Stock.
(2) Calculated solely for the purposes of this offering under Rule 457(h) of
the Securities Act of 1933, as amended.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to documents we file with the SEC. The information incorporated
by reference is considered to be part of this registration statement.
Information that we file later with the SEC will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any future filings we will make with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act until all of the shares covered by this
registration statement have been sold:
(1) Annual report on Form 10-KSB for the year ended December 28, 1997;
(2) Quarterly reports on Form 10-QSB for the quarters ended March 29,
1998, June 28, 1998 and September 27, 1998;
(3) Description of our common stock contained in our registration
statement on Form SB-2 (No. 333-3548) filed on April 15, 1996 (as
amended).
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As a Michigan corporation, we are subject to 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 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
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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
our Bylaws generally provides that we will indemnify our directors and officers
to the fullest extent authorized or permitted under the Michigan Business
Corporation Act and that we will make advancements of expenses at the request of
a director or officer.
Our 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 we nor our shareholders could recover monetary damages from
the director, and the only course of action available to our shareholders would
be equitable remedies, such as an action to enjoin or rescind a transaction
involving a breach of fiduciary duty. Article VII of our Restated Articles of
Incorporation provides that a director shall not be personally liable to us or
our 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 us or our 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 our 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.
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Exhibit
Number Description
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5.1 Opinion of Briggs and Morgan, Professional Association.
23.1 Consent of Briggs and Morgan, Professional Association (included in
Exhibit 5.1).
23.2 Consent of Independent Public Accountants.
24.1 Powers of Attorney (included on Signature Page).
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ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes as follows:
(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; (ii) to reflect
in the prospectus any facts or events arising after the effective date of the
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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) 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 Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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, each filing of the registrant's annual report pursuant to Section 13(a) or
15(d) of the Exchange Act 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.
Insofar as indemnification for liabilities arising under the Securities Act
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 SEC such indemnification is against
public policy as expressed in the Securities 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 and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Gaylord, State of Michigan, on the 26th day of January, 1999.
BIG BUCK BREWERY & STEAKHOUSE, INC.
By /s/ William F. Rolinski
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William F. Rolinski
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William F. Rolinski and Anthony P.
Dombrowski, and each of them, his true and lawful attorneys-in-fact and agents
with full power of substitution, 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 SEC,
granting unto said attorneys-in-fact and agents, and each of them, 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 any of them, or his or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
date indicated.
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NAME TITLE DATE
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/s/ William F. Rolinski President, Chief Executive Officer and January 26, 1999
- ---------------------------- Director (Principal Executive Officer)
William F. Rolinski
/s/ Anthony P. Dombrowski Chief Financial Officer (Principal January 26, 1999
- ---------------------------- Accounting Officer and Principal Financial
Anthony P. Dombrowski Officer)
/s/ Gary J. Hewett
- ---------------------------- Chief Operating Officer and Director January 26, 1999
Gary J. Hewett
/s/ Blair A. Murphy, D.O. Director January 26, 1999
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Blair A. Murphy, D.O.
Director
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Patrick M. Sidders
/s/ Henry T. Siwecki Director January 26, 1999
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Henry T. Siwecki
Director
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Casimer I. Zaremba
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EXHIBIT INDEX
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Exhibit
Number Description
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5.1 Opinion of Briggs and Morgan, Professional Association.
23.1 Consent of Briggs and Morgan, Professional Association (included in
Exhibit 5.1).
23.2 Consent of Independent Public Accountants.
24.1 Powers of Attorney (included on Signature Page).
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EXHIBIT 5.1
January 26, 1999
Big Buck Brewery & Steakhouse, Inc.
550 South Wisconsin Street
Gaylord, Michigan 49735
RE: BIG BUCK BREWERY & STEAKHOUSE, INC.
REGISTRATION STATEMENT ON FORM S-8
NONQUALIFIED STOCK OPTION AGREEMENTS
Ladies and Gentlemen:
In connection with the registration on Form S-8 under the Securities Act of
75,000 shares of Common Stock to be issued under Big Buck Brewery & Steakhouse,
Inc. Nonqualified Stock Option Agreements, 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, when such shares have been issued and sold pursuant to the
applicable provisions of the agreements and in accordance with the registration
statement, such shares will be validly issued, fully paid and nonassessable
shares of the Company's Common Stock.
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 February 19, 1998
included in Big Buck Brewery & Steakhouse, Inc.'s Form 10-KSB for the year ended
December 28, 1997 and to all references to our Firm included in this
registration statement.
Minneapolis, Minnesota
January 21, 1999
/s/ ARTHUR ANDERSEN LLP
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ARTHUR ANDERSEN LLP
