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As filed with the Securities and Exchange Commission on November 30, 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 38-3196031
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
550 SOUTH WISCONSIN STREET
GAYLORD, MICHIGAN 49734
(Address, including Zip Code, of Principal Executive Offices)
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BIG BUCK BREWERY & STEAKHOUSE, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
(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 49734 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)
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.
1999 EMPLOYEE STOCK PURCHASE PLAN
Options to purchase Common Stock................. 200,000 N/A N/A N/A
Common Stock (par value $0.01)................... 200,000 shares $1.78125 $356,250 $94.05
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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. 1999 Employee Stock Purchase Plan 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) Estimated solely for the purpose of calculating the registration fee
under Rule 457(h) and based upon the average of the high and low prices
for such stock on November 26, 1999, 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 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 or deregistered:
- Annual Report on Form 10-KSB for the year ended January 3,
1999;
- Quarterly Reports on Form 10-QSB for the quarters ended April
4, 1999, July 4, 1999 and October 3, 1999;
- Description of our common stock contained in our Registration
Statement on Form SB-2 (No. 333-3548) filed on April 15, 1996
(as amended);
- Current Report on Form 8-K filed on October 25, 1999; and
- Definitive Schedule 14A (Proxy Statement) filed on October 26,
1999.
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
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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 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.
Exhibit
NUMBER DESCRIPTION
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 Arthur Andersen LLP.
24.1 Powers of Attorney (included on Signature Page).
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ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which it offers or sells securities,
a post-effective amendment to this registration statement to:
(i) include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) reflect in the prospectus any facts or events which,
individually or together, represent a fundamental
change in the information in the registration
statement; and
(iii) include any additional or changed material
information on the plan of distribution;
provided, however, that paragraphs (i) and (ii) above do not apply if the
information required in a post-effective amendment is incorporated by reference
from periodic reports filed by the registrant under the Exchange Act.
(2) That, for determining liability under the Securities Act, each
post-effective amendment shall be treated as a new registration statement
relating to the securities offered, and the offering of the securities at that
time shall be treated as the initial bona fide offering.
(3) To file a post-effective amendment to remove from registration any
of the securities that remain unsold at the end 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.
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 30th day of
November, 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 Chairman
- -------------------------------- of the Board (Principal Executive Officer) November 30, 1999
William F. Rolinski
/s/ Anthony P. Dombrowski Chief Financial Officer (Principal Accounting
- -------------------------------- Officer and Principal Financial Officer) November 30, 1999
Anthony P. Dombrowski
/s/ Gary J. Hewett Chief Operating Officer and Director November 30, 1999
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Gary J. Hewett
/s/ Joseph W. Muer Director November 30, 1999
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Joseph W. Muer
/s/ Blair A. Murphy, D.O. Director November 30, 1999
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Blair A. Murphy, D.O.
Director
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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 Arthur Andersen LLP.
24.1 Powers of Attorney (included on Signature Page).
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EXHIBIT 5.1
November 30, 1999
Big Buck Brewery & Steakhouse, Inc.
550 South Wisconsin Street
Gaylord, Michigan 49734
RE: BIG BUCK BREWERY & STEAKHOUSE, INC.
REGISTRATION STATEMENT ON FORM S-8
1999 EMPLOYEE STOCK PURCHASE PLAN
Ladies and Gentlemen:
In connection with the registration on Form S-8 under the Securities
Act of 200,000 shares of Common Stock to be issued under Big Buck Brewery &
Steakhouse, Inc. 1999 Employee Stock Purchase Plan, 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 plan 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 ARTHUR ANDERSEN LLP
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 19, 1999
included in Big Buck Brewery & Steakhouse, Inc.'s Form 10-KSB for the year ended
January 3, 1999 and to all references to our firm included in this registration
statement.
Minneapolis, Minnesota
November 30, 1999
/s/ ARTHUR ANDERSEN LLP
