<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 1, 1996
REGISTRATION NO. 333-10675
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FAMOUS DAVE'S OF AMERICA, INC.
(Name of Small Business Issue in its Charter)
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MINNESOTA 5812 41-1782300
(State or other jurisdiction (Primary standard industrial (I.R.S. Employer
of incorporation) classification code number) Identification Number)
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12700 INDUSTRIAL PARK BOULEVARD, SUITE 60
MINNEAPOLIS, MINNESOTA 55441
(612) 557-5798
(Address and Telephone Number of Principal Executive Offices)
DAVID W. ANDERSON, CHIEF EXECUTIVE OFFICER
FAMOUS DAVE'S OF AMERICA, INC.
12700 INDUSTRIAL PARK BOULEVARD, SUITE 60
MINNEAPOLIS, MINNESOTA 55441
(612) 557-5798
(Name, Address, and Telephone Number of Agent For Service)
Copies to:
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WILLIAM MOWER, ESQ. GIRARD P. MILLER, ESQ.
MASLON EDELMAN BORMAN & BRAND, DOHERTY, RUMBLE & BUTLER, P.A.
A PROFESSIONAL LIMITED LIABILITY PARTNERSHIP 150 SOUTH FIFTH STREET
3300 NORWEST CENTER SUITE 3500
MINNEAPOLIS, MINNESOTA 55402 MINNEAPOLIS, MINNESOTA 55402
(612) 672-8200 (612) 340-5555
FAX (612) 672-8397 FAX (612) 340-5584
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APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC: As soon as practicable
after the effective date of this Registration Statement.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS PROPOSED MAXIMUM PROPOSED MAXIMUM
OF SECURITIES TO AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED(1) PER UNIT(2) OFFERING PRICE REGISTRATION FEE
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Units each consisting of one share
of Common Stock, $.01 par value,
and one Class A Warrant to
purchase one share of Common
Stock........................... 2,645,000 Units(3) $6.50 $17,192,500 $5,928.45(4)
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Common Stock, $.01 par value(5)... 2,645,000 Shares $8.50 $22,482,500 $7,752.59(4)
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(1) Pursuant to Rule 415 under the Securities Act of 1933, as amended, this
registration statement also covers such additional securities as may become
issuable upon exercise of Class A Warrants.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933, as amended.
(3) Includes 345,000 Units subject to an option granted to the Underwriter to
cover over-allotments, if any.
(4) A registration fee aggregating $11,500 was previously paid to the Commission
in connection with the Company's August 23, 1996 filing of the Registration
Statement, leaving a balance of $2,181.04 to be paid herewith.
(5) Issuable upon exercise of the Class A Warrants.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
FAMOUS DAVE'S OF AMERICA, INC.
CROSS REFERENCE SHEET
PURSUANT TO RULE 404
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ITEM NUMBER IN CAPTION OR
FORM SB-2 AND TITLE OF ITEM LOCATION IN PROSPECTUS
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Item 1. Front of Registration Statement and
Outside Front Cover of Prospectus....... Front of the Registration Statement and
Outside Front Cover Page of the
Prospectus
Item 2. Inside Front and Outside Back Cover
Pages of Prospectus..................... Inside Front and Outside Back Cover
Pages of Prospectus; Additional
Information
Item 3. Summary Information and Risk Factors.... Prospectus Summary; Risk Factors
Item 4. Use of Proceeds......................... Use of Proceeds
Item 5. Determination of Offering Price......... Outside Front Cover Page; Risk Factors;
Underwriting
Item 6. Dilution................................ Risk Factors; Dilution
Item 7. Selling Security Holders................ Not applicable
Item 8. Plan of Distribution.................... Outside Front Cover Page; Underwriting
Item 9. Legal Proceedings....................... Business
Item 10. Directors, Executive Officers, Promoters
and Control Persons..................... Management
Item 11. Security Ownership of Certain Beneficial
Owners and Management................... Principal Shareholders
Item 12. Description of Securities............... Prospectus Summary; Dividend Policy;
Description of Securities
Item 13. Interest of Named Experts and Counsel... Legal Matters; Experts
Item 14. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities............................. Underwriting
Item 15. Organization Within Last Five Years..... Business; Management's Discussion and
Analysis of Financial Condition and
Results of Operations; Certain
Transactions
Item 16. Description of Business................. Business
Item 17. Management's Discussion and Analysis or
Plan of Operation....................... Management's Discussion and Analysis of
Financial Condition and Results of
Operations
Item 18. Description of Property................. Business
Item 19. Certain Relationships and Related
Transactions............................ Certain Transactions
Item 20. Market for Common Equity and Related
Stockholder Matters..................... Outside Front Cover Page of Prospectus;
Risk Factors; Description of Securities;
Underwriting
Item 21. Executive Compensation.................. Management
Item 22. Financial Statements.................... Financial Statements
Item 23. Changes in and Disagreements with
Accountants on Accounting and Financial
Disclosure.............................. Not applicable
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<PAGE> 3
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY, NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION; DATED OCTOBER 1, 1996
Famous Dave's Logo
FAMOUS DAVE'S OF AMERICA, INC.
2,300,000 UNITS
Consisting of 2,300,000 Shares of Common Stock
and 2,300,000 Redeemable Class A Warrants
-------------------------
Famous Dave's of America, Inc. (the "Company") is offering 2,300,000 units
(the "Offering"), each unit consisting of one share of Common Stock (a "Share")
and one redeemable Class A Warrant at an initial public offering price of $6.50
per unit (a "Unit"). The Class A Warrants are immediately exercisable and,
commencing ten trading days after the Effective Date (as hereinafter defined),
transferable separate from the Common Stock. Each Class A Warrant entitles the
holder to purchase at any time until four years following the date that the
Registration Statement relating to this Prospectus has been declared effective
by the Securities and Exchange Commission (the "Effective Date"), one share of
Common Stock at an exercise price of $8.50 per warrant, subject to adjustment.
The Class A Warrants are subject to redemption by the Company for $.01 per
warrant at any time 90 days after the Effective Date, on 30 days' written
notice, provided that the average closing bid price of the Common Stock exceeds
120% of the Exercise Price (subject to adjustment) for any 10 consecutive
trading days prior to such notice. See "Description of Securities."
Prior to this Offering, there has been no market for the Company's
securities. See "Underwriting" for information relating to the factors
considered in determining the Price to Public. The Company has applied for
listing its Common Stock, Class A Warrants and Units on the Nasdaq SmallCap
Market under the symbols DAVE, DAVEW, and DAVEU, respectively.
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THIS OFFERING INVOLVES A HIGH DEGREE OF RISK AND SUBSTANTIAL DILUTION. SEE
"RISK FACTORS" COMMENCING ON PAGE 6 AND "DILUTION" ON PAGE 11.
-------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE. THESE ARE SPECULATIVE
SECURITIES.
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UNDERWRITING PROCEEDS TO
PRICE TO PUBLIC DISCOUNT(1) COMPANY(2)
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Per Unit................................. $6.50 $0.52 $5.98
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Total (3)(4)............................. $14,950,000 $1,196,000 $13,754,000
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(1) The Underwriter will receive a sales commission equal to 8% of the Total
Price to Public from the sale of the Units. The Company has also agreed to
pay the Underwriter a nonaccountable expense allowance equal to 2% of the
Total Price to Public. The Company has also agreed to sell to the
Underwriter, for nominal consideration, a 5-year warrant to purchase up to
230,000 shares at 140% of the Price to Public (the "Underwriter's Warrant").
In addition, the Company has agreed to indemnify the Underwriter against
certain liabilities. See "Underwriting."
(2) Before deducting expenses of the offering estimated at $220,000, which does
not include the 2% nonaccountable expense allowance described in Note 1
above and assumes no exercise of the Underwriter's over-allotment option.
(3) The Underwriter has been granted a 45-day option to purchase up to 345,000
additional Units from the Company for the purpose of covering
over-allotments. If the Underwriter purchases all of the Units under the
over-allotment option, the Total Price to Public, Total Underwriting
Discount and Total Proceeds to Company will be $17,192,500, $1,375,400 and
$15,817,100, respectively. See "Underwriting."
(4) At the request of the Company, up to 15% of the Units offered hereby may be
reserved for sale to persons designated by the Company at the Price to
Public.
The Units are offered by the Underwriter, subject to receipt and acceptance
by it, its right to reject orders in whole or in part and to certain other
conditions. It is expected that delivery of certificates representing the Units
will be made on or about , 1996 in Minneapolis, Minnesota.
RJ Steichen & Company Logo
The date of this Prospectus is , 1996.
<PAGE> 4
[Narrative description of photographs that appear on the inside front cover page
of prospectus]
Picture #1 -- In the foreground of this photograph taken inside the Company's
Linden Hills Unit, David W. Anderson, the Chairman and Chief
Executive Officer of the Company, is holding a large
three-dimensional version of Wilbur(TM), the pink pig which is one
of the Company's trademarks, behind a display of the Company's
barbecued ribs, corn on the cob and wedges of watermelon. In the
background can be seen the whimsically decorated counter where
diners order their meals. Caption: "Famous Dave and Wilbur."
Picture #2 -- A photograph of the exterior of the Company's Roseville Unit taken
at dusk. Caption: "Exceptional locations."
Picture #3 -- A photograph of two stainless-steel smoking ovens
filled with ribs, beef brisket and chicken under a sign which
reads, "Famous Dave's BBQ Pit." Caption: "Slow-smoked over
smoldering-hickory."
Picture #4 -- An up-close photograph of steaming ribs over a flaming barbecue
pit. Caption: "Award winning ribs made us famous."
Picture #5 -- A photograph of one of the Company's popular family-size entrees,
the "garbage can lid," featuring a real garbage can lid loaded
with ribs, herb-roasted chicken, fried chicken, beef brisket,
french fries, corn bread muffins, and bowls of cole slaw and
"Wilbur"(TM) beans, flanked by a bottle of Famous Dave's BBQ
Sauce. Caption: "A mouth watering all-American feast."
Picture #6 -- A photograph of the interior of the Company's Linden Hills Unit
which shows the typical roadhouse decor, with red and white plaid
oilcloth tablecloths, casually mismatched wooden chairs, wooden
floor, weathered barn timber walls, items of Americana from the
'20s and '30s on the walls along with painted murals, and red and
white gingham plaid cafe curtains. Caption: "Interiors are warm
and friendly."
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK,
THE CLASS A WARRANTS AND/OR THE UNITS AT A LEVEL ABOVE THAT WHICH MIGHT
OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
<PAGE> 5
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial statements (including the notes thereto) appearing
elsewhere in this Prospectus. Unless otherwise indicated, the information in
this Prospectus assumes no exercise of Class A Warrants offered hereby or of the
Underwriter's over-allotment option. Investors should carefully consider the
information set forth under the caption "Risk Factors."
THE COMPANY
The business of Famous Dave's of America, Inc. (the "Company") is to
develop, own and operate American roadhouse-style barbeque restaurants under the
name "Famous Dave's Bar-B-Que Shack." The Company presently owns and operates
three restaurants, one located in the Linden Hills neighborhood of Minneapolis
(the "Linden Hills Unit"), one in Roseville, Minnesota (the "Roseville Unit")
and the third in Calhoun Square in Minneapolis (the "Calhoun Blues Joint" and,
collectively with the Linden Hills and Roseville Units, the "Existing Units").
The Calhoun Blues Joint opened in early September 1996 and features live blues
music during certain evenings and an authentic Chicago blues decor. The Company
is planning to develop three additional restaurants, to be located in
Minnetonka, Minnesota (the "Minnetonka Unit"), on West 7th Street near the
Highland Park area of St. Paul (the "Highland Park Unit") and in Maple Grove,
Minnesota (the "Maple Grove Unit"). These three additional units are expected to
open in the first half of 1997.
While the Company's primary theme for its restaurants is the
roadhouse-style decor, various other themes have been identified and developed.
The Linden Hills and Roseville Units were designed to be reminiscent of
roadhouse-style barbeque "joints." The Company's nostalgic roadside shack theme
is promoted by the abundant use of rustic antiques and items of Americana from
the '20s and '30s. Two additional themes have been developed, including the
larger Calhoun Blues Joint with live blues music several nights a week, and a
north woods lodge decor. Consistent in all themes is the use of recorded or live
blues music and award-winning barbeque.
Each restaurant features an assortment of menu items, such as
hickory-smoked St. Louis-style spareribs, Texas beef brisket, herb-roasted
chicken, barbeque sandwiches, and char-grilled burgers, as well as honey-
buttered corn bread, potato salad, cole slaw and "Wilbur"(TM) beans. Homemade
desserts, including Famous Dave's homemade bread pudding, Kahlua(TM) brownies
and strawberry shortcake, are a specialty. The Company's Famous Dave's BBQ
Sauces, which are provided in four regional variations (Rich-N-Sassy(TM), Texas
Pit(TM), Georgia Mustard(TM) and Hot Stuff(TM)), represent signature items for
the Company.
The Company opened the Linden Hills Unit, a 2,900-square-foot facility with
approximately 60 indoor and 40 patio seats, in June 1995 in the primarily
residential Linden Hills neighborhood of south Minneapolis. The Company opened
its second restaurant, a 4,800-square-foot facility with approximately 100
seats, in suburban Roseville, Minnesota, in June 1996. The Calhoun Blues Joint,
an approximately 250-seat, 10,500-square-foot live blues music facility, opened
in Calhoun Square in the Uptown area of Minneapolis in September 1996. Three
additional restaurants are being planned for development in the Minneapolis/St.
Paul area which are scheduled to open in the first half of 1997.
The Company was incorporated in March 1994 as a Minnesota corporation. Its
executive offices are located at 12700 Industrial Park Boulevard, Suite 60,
Minneapolis, Minnesota 55441 and its telephone number is 612-557-5798.
3
<PAGE> 6
THE OFFERING
Securities Offered............ 2,300,000 Units, each Unit consisting of one
share of Common Stock and one redeemable Class
A Warrant at an initial public offering price
of $6.50 per Unit. Each Class A Warrant is
immediately exercisable and, commencing ten
trading days after the Effective Date,
transferable separately from the Common Stock.
Each Class A Warrant entitles the holder to
purchase at any time until four years after the
Effective Date, one share of Common Stock at an
exercise price of $8.50 per Warrant, subject to
adjustment. The Class A Warrants are subject to
redemption by the Company for $.01 per Warrant
at any time 90 days after the Effective Date,
on 30 days written notice, provided that the
average closing bid price of the Common Stock
exceeds 120% of the Exercise Price (subject to
adjustment) for any 10 consecutive trading days
prior to such notice.
Common Stock Outstanding
Before this Offering........ 3,356,250 shares
Common Stock Outstanding
After this Offering......... 5,656,250 shares(1)
Proposed Nasdaq SmallCap
Market Symbols:
Common Stock................ DAVE
Warrants.................... DAVEW
Units....................... DAVEU
Use of Proceeds............... The Company intends to utilize the proceeds to
develop and open as few as five or as many as
ten new units. The Company intends to apply the
balance of the net proceeds, if any, for
working capital purposes.
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(1) Does not include (i) 345,000 Units subject to the Underwriter's
over-allotment option; (ii) 230,000 shares of Common Stock issuable upon
exercise of the Underwriter's Warrant at 140% of the Price to Public; (iii)
2,300,000 shares of Common Stock which are issuable upon the exercise of the
Class A Warrants at an exercise price of $8.50 per warrant; (iv) 700,000
shares of Common Stock reserved for issuance under the Company's 1995 Stock
Option and Compensation Plan, of which 338,000 have been granted; and (v)
50,000 shares of Common Stock issuable upon exercise of directors' stock
options at an exercise price of $4.33 per share.
4
<PAGE> 7
SUMMARY FINANCIAL INFORMATION
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MARCH 14, 1994 TWENTY-SIX WEEKS ENDED
(INCEPTION) TO YEAR ENDED ----------------------------
DECEMBER 31, DECEMBER 31, JUNE 30,
1994(1) 1995(1) 1995(1) JUNE 30, 1996
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STATEMENT OF OPERATIONS DATA:
Sales..................................... $ 0 $ 481,510 $ 23,601 $1,015,856
Cost of sales............................. 0 169,789 13,278 336,600
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Gross profit............................ 0 311,721 10,323 679,256
Restaurant operating expenses............. 0 302,217 45,991 391,232
Depreciation and amortization............. 0 17,009 2,000 36,289
General, administrative and development... 0 332,331 57,040 634,460
Other (income) expense.................... 0 (33,646) 0 5,477
---------- ---------- ---------- ----------
Net loss................................ $ 0 $ (306,190) $ (94,708) $ (388,202)
========== ========== ========== ==========
Net loss per share........................ $ 0.00 $ (0.14) $ (0.04) $ (0.18)
========== ========== ========== ==========
Shares used in per share calculation...... 2,135,417 2,135,417 2,135,417 2,135,417
========== ========== ========== ==========
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JUNE 30, 1996
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PROFORMA PROFORMA AS
ACTUAL (2) ADJUSTED(2)(3)
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BALANCE SHEET DATA:
Working capital (deficiency).......................... $ (2,239,340) $1,965,660 $15,282,984
Total assets.......................................... 3,511,524 7,716,524 20,951,524
Total liabilities..................................... 3,205,916 3,205,916 3,205,916
Accumulated deficit................................... (694,392) (694,392) (694,392)
Stockholders' equity.................................. 305,608 4,510,608 17,745,608
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(1) The Company began operations at the Linden Hills Unit in June 1995. Prior to
such time, the Company had no operations.
(2) Assumes completion on June 30, 1996 of the sale of 1,356,250 shares of
Common Stock at $3.50 per share for net proceeds of approximately $4,200,000
that actually occurred in July 1996.
(3) As adjusted for the sale of the Units offered hereby and the anticipated
application of the net proceeds therefrom. Does not include: (i) 345,000
Units subject to the Underwriter's over-allotment option; (ii) 230,000
shares of Common Stock issuable upon exercise of the Underwriter's Warrant
at 140% of the Price to Public; (iii) 2,300,000 shares of Common Stock which
are issuable upon the exercise of the Class A Warrants at an exercise price
of $8.50 per warrant; (iv) 700,000 shares of Common Stock reserved for
issuance under the Company's 1995 Stock Option and Compensation Plan, of
which 338,000 have been granted; and (v) 50,000 shares of Common Stock
issuable upon exercise of directors' stock options at an exercise price of
$4.33 per share.
5
<PAGE> 8
RISK FACTORS
An investment in the Units offered hereby is highly speculative and
involves a high degree of risk. Investors could lose their entire investment.
Prospective investors should carefully consider the following factors, along
with the other information set forth in this Prospectus, in evaluating the
Company, its business and prospects before purchasing the Units.
LACK OF PROFITABILITY; LACK OF OPERATING HISTORY
The Company opened its first restaurant in June 1995. The Company had a net
loss of $388,202 during the 26 weeks of operations ended June 30, 1996, and a
net loss of $306,190 for the year ended December 31, 1995. The Company had a
working capital deficit of $2,239,340 and an accumulated deficit of $694,392 at
June 30, 1996. Prior to the opening of the Linden Hills Unit, the Company had no
operations or revenues. Accordingly, the Company's operations are subject to all
of the risks inherent in the establishment of a new business enterprise,
including the lack of operating history. The likelihood of success of the
Company must be considered in light of the problems, expenses, difficulties,
complications and delays frequently encountered in connection with the
establishment of any company. There can be no assurance that future operations
of such restaurants, or any future restaurants, will be profitable. Future
revenues and profits, if any, will depend upon various factors, including the
market acceptance of the Company's roadhouse and other concepts, the quality of
restaurant operations, and general economic conditions. Frequently, restaurants,
particularly theme-oriented restaurants, experience a decline of revenue growth
or of actual revenues as the restaurant's "initial honeymoon" period expires and
consumers tire of the related theme. There is no assurance that the Company can
operate profitably or that it will successfully implement its expansion plans,
in which case the Company will continue to be dependent on the revenues of the
Existing Units. Furthermore, to the extent that the Company's expansion strategy
is successful, the Company must manage the transition to multiple site
operations, higher volume operations, the control of overhead expenses and the
addition of necessary personnel.
LIMITED MANAGEMENT EXPERIENCE/NEED FOR ADDITIONAL MANAGEMENT
The success of the Company will depend upon the Company's ability to
attract and retain a highly qualified management team. David W. Anderson, the
Company's Chairman and Chief Executive Officer, has limited restaurant and
multi-location restaurant management experience. William L. Timm, the Company's
President, has no previous restaurant experience. Mark A. Payne, the Company's
Vice President, Finance and Chief Financial Officer, has significant financial
and accounting experience but has no prior restaurant-related experience. The
Company will also need to hire other corporate level and management employees to
help implement and operate its expansion plans, including a chief operating
officer with significant multi-unit restaurant experience. The failure to
obtain, or delays in obtaining, key employees could have a material adverse
effect on the Company. See "Management."
LIMITED BASE OF OPERATIONS
The Company currently operates only three restaurants and plans to open at
least three additional restaurants in 1997. The combination of the relatively
small number of locations and the significant investment associated with each
new unit may cause the operating results of the Company to fluctuate
significantly and adversely affect the profitability of the Company. Due to this
relatively small number of current and planned locations, poor operating results
at any one unit or a delay in the planned opening of a unit could materially
affect the profitability of the entire Company. Future growth in revenues and
profits will depend to a substantial extent on the Company's ability to increase
the number of its restaurants. Additionally, the Company's history does not
provide any basis for prediction as to whether individual units will tend to
show increases or decreases in comparable unit sales.
6
<PAGE> 9
LIMITED FINANCIAL RESOURCES; ADEQUACY OF PROCEEDS AND NEED FOR ADDITIONAL
FINANCING
The Company's ability to execute its business strategy depends to a
significant degree on its ability to obtain substantial equity capital to
finance the development of additional restaurants. The proceeds of this Offering
will provide the Company with the financing required to develop and open five to
ten additional restaurants and for working capital purposes. The total cost of
developing the Linden Hills Unit was approximately $425,000, which included
$282,000 for the design and construction, $131,000 for equipment, furniture and
fixtures, and $12,000 for other costs. The total cost of developing the
Roseville Unit was approximately $1,110,000, which included $734,000 for the
design and construction, $310,000 for equipment, furniture and fixtures, and
$66,000 for other costs. The Company estimates that the costs of developing
three additional restaurants presently planned for the Minneapolis/St. Paul area
will be approximately $4.0 million. Although the Company estimates that the
proceeds from this Offering will be sufficient to develop and open at least five
additional units, there can be no assurance that such facilities can be
developed at such estimated costs. If the proceeds of this Offering are not
sufficient to develop such units, the Company may be required to seek additional
funds through an additional offering of the Company's equity securities. If
additional funds are required, there can be no assurance that any additional
funds will be available on terms acceptable to the Company or its shareholders.
New investors may seek and obtain substantially better terms than were granted
its present investors and the issuance of such securities would result in
dilution to the existing shareholders. Furthermore, as the Company prepares to
open additional units, it will expend a relatively higher amount on
administrative expenses than would a mature Company with such operations.
EXPANSION STRATEGY
The Company's ability to open and successfully operate additional units
will also depend upon the hiring and training of skilled restaurant management
personnel and the general ability to successfully manage growth, including
monitoring restaurants and controlling costs, food quality and customer service.
The Company's present senior management has little experience developing and
operating multi-unit facilities. The Company anticipates that the opening of
additional units will give rise to additional expenses associated with managing
operations located in multiple markets. Furthermore, the Company believes that
competition for unit-level management has become increasingly intense as
additional restaurant chains expand to new markets. Achieving consumer awareness
and market acceptance will require substantial efforts and expenditures by the
Company. An extraordinary amount of management's time may be drawn to such
matters and negatively impact operating results. There can be no assurance that
the Company will be able to enter into any other contracts for development of
additional units on terms satisfactory to the Company. Accordingly, there can be
no assurance that the Company will be able to open new units or that, if opened,
those units can be operated profitably. See "Business -- Expansion Strategy."
THE RESTAURANT INDUSTRY AND COMPETITION
The restaurant industry is highly competitive with respect to price,
service, quality and location and, as a result, has a high failure rate. There
are numerous well-established competitors, including national, regional and
local restaurant chains, possessing substantially greater financial, marketing,
personnel and other resources than the Company. Furthermore, to the extent that
barbeque restaurants are frequently viewed as "local," the Company may
experience intense competition or lack of consumer acceptance if it expands into
areas with existing barbeque restaurants. There can be no assurance that the
Company will be able to respond to various competitive factors affecting the
restaurant industry. The restaurant industry is also generally affected by:
changes in consumer preferences, national, regional and local economic
conditions, and demographic trends. The performance of restaurant facilities may
also be affected by factors such as traffic patterns, demographic
considerations, and the type, number and location of competing facilities. In
addition, factors such as inflation, increased labor and employee benefit costs,
and a lack of availability of experienced management and hourly employees may
also adversely affect the restaurant industry in general and the Company's
restaurants in particular. Restaurant operating costs are further affected by
increases in the minimum hourly wage, unemployment tax rates and similar matters
over which the Company has no control. Finally, by the nature of its business,
the Company would be subject to potential liability from serving contaminated or
improperly prepared food.
7
<PAGE> 10
CONCEPT EVOLUTION
The Company presently intends that most of its future restaurants will
feature the roadhouse theme similar to the Linden Hills and Roseville Units.
However, the Famous Dave's concept is evolving and a number of factors could
change this theme as applied in different locations. These factors include
demographic and regional differences, locations that have more or less traffic
than the areas in which those units are located, type of available floor space,
and the availability of specialty items such as antiques. Accordingly, future
units could be larger or smaller than those units, could vary in the mix of
retail/restaurant operations, and could have differences in the application of
the Famous Dave's theme.
LONG-TERM, NON-CANCELABLE LEASES
The Company has entered into long-term leases or subleases with S&D Land
Holdings, Inc., a Minnesota corporation which is wholly-owned by David W.
Anderson relating to its Existing Units and certain planned units. These leases
and subleases are non-cancelable by the Company (except in limited
circumstances) and range in term from seven to ten years. The leases and
subleases do not permit assignment or subleasing without the prior approval of
S&D Land Holdings. Additional facilities developed by the Company are likely to
be subject to similar long-term, non-cancelable leases, although the Company
currently expects, subject to available financial resources, that such leases
will be entered into with unrelated parties. If an existing or future unit does
not perform at a profitable level, and the decision is made to close the
restaurant, the Company may nonetheless be committed to perform its obligations
under the applicable lease or sublease, which would include, among other things,
payment of the respective base rent for the balance of the respective lease
term. If such a restaurant closing were to occur at one of these locations, the
Company would lose a unit without necessarily receiving an adequate return on
its investment. See "Business -- Property and Unit Locations" and "Certain
Transactions."
TRANSACTIONS WITH MANAGEMENT; CONFLICTS OF INTEREST
There are several transactions between the Company and David W. Anderson,
its Chairman and Chief Executive Officer, that present a conflict of interest.
In addition, Mr. Anderson is a director of Rainforest Cafe, Inc., a theme
restaurant with associated retail operations primarily located in high traffic
shopping malls and theme parks throughout the world. Martin J. O'Dowd, a
director of the Company, is also the President, Chief Operating Officer and a
director of Rainforest Cafe, Inc. and a director of Elephant & Castle Group,
Inc. In the future these two companies may potentially compete against the
Company when and if one of the Company's restaurants are developed in a market
that contains a restaurant operated by one of these two other companies or vice
versa. Therefore, the directorships of Messrs. Anderson and O'Dowd could
constitute a conflict of interest. See "Certain Transactions."
CONTROL OF THE COMPANY; DEPENDENCE ON KEY PERSONNEL
Following this offering, David W. Anderson will control approximately 35.4%
of the Company's Common Stock. Therefore, Mr. Anderson will have the ability to
direct its operations and financial affairs and to substantially influence the
election of members of the Board of Directors of the Company. The Company is
also presently highly dependent upon the personal efforts and abilities of its
Chief Executive Officer, David W. Anderson. The Company has a two-year
employment agreement with Mr. Anderson. The loss of the services of Mr. Anderson
could have a substantial adverse effect on the Company's ability to achieve its
objectives. The Company currently has no key man insurance on Mr. Anderson.
GOVERNMENT REGULATION
The restaurant business is subject to various federal, state and local
government regulations, including those relating to the sale of food and
alcoholic beverages. The failure to maintain food and liquor licenses would have
a material adverse effect on the Company's operating results. In addition,
restaurant operating costs are affected by increases in the minimum hourly wage,
unemployment tax rates, sales taxes and similar costs over which the Company has
no control. Many of the Company's restaurant personnel will be paid at
8
<PAGE> 11
rates based on the federal minimum wage. Recent increases in the minimum wage
are not expected to materially impact the Company's labor costs. The Company
will be subject to "dram shop" statutes in certain states, including Minnesota,
which generally allow a person injured by an intoxicated person to recover
damages from an establishment that served alcoholic beverages to such
intoxicated person. The Company has obtained liability insurance against such
potential liability.
TRADEMARKS
The Company's ability to successfully implement its Famous Dave's concept
will depend in part upon its ability to protect its trademarks. The Company has
filed a trademark application with the United States Patent and Trademark Office
to register the "Famous Dave's" mark and design. There can be no assurance that
the Company will be granted trademark registration for any or all of the
proposed uses in the Company's applications. In the event the Company's mark is
granted registration, there can be no assurance that the Company can protect
such mark and design against prior users in areas where the Company conducts
operations. There is no assurance that the Company will be able to prevent
competitors from using the same or similar marks, concepts or appearance.
SUBSTANTIAL DILUTION
Purchasers of the securities offered hereby will experience immediate
substantial dilution of $3.36 per Share in the net tangible book value per share
of Common Stock. See "Dilution."
ABSENCE OF DIVIDENDS
At the present time, the Company intends to use any earnings which may be
generated to finance further growth of the Company's business. Accordingly,
investors should not purchase the shares with a view towards receipt of cash
dividends from any Shares.
LACK OF PUBLIC MARKET; DETERMINATION OF OFFERING PRICE
Prior to this Offering, there has been no public market for the Company's
securities. Although the Company has applied for listing of the Units on the
Nasdaq SmallCap Market, there can be no assurance that an active public market
will develop or be sustained. In addition, the SmallCap Market may be
significantly less liquid than the Nasdaq National Market. If the Company fails
to maintain the standards for quotation, the Company's securities could be
removed from the market and traded in the over-the-counter market. As a result,
an investor would find it more difficult to dispose of, or obtain accurate
quotations as to the price of, the securities.
The offering price of the Units offered hereby has been arbitrarily
determined by negotiation between the Company and the Underwriter and bears no
relationship to the Company's current operating results, book value, net worth
or financial statement criteria of value. The factors considered in determining
the offering price included an evaluation by management of the history of and
prospects for the industry in which the Company competes and the prospects for
earnings of the Company. Such factors are largely subjective, and the Company
makes no representation as to any objectively determinable value of the Units
offered hereby. See "Underwriting."
In addition, if the Company fails to maintain its qualification for its
Units to trade on the Nasdaq SmallCap Market, the Units will be subject to
certain rules of the Securities and Exchange Commission relating to "penny
stocks." Such rules require broker-dealers to make a suitability determination
for purchasers and to receive the purchaser's prior written consent for a
purchase transaction, thus restricting the ability of purchasers and
broker-dealers to sell the stock in the open market.
9
<PAGE> 12
CURRENT PROSPECTUS AND STATE REGISTRATION REQUIRED TO EXERCISE WARRANTS;
POSSIBLE REDEMPTION OF WARRANTS
Purchasers of Units will be able to exercise the Class A Warrants only if a
current prospectus relating to the shares of Common Stock underlying the Class A
Warrants is then in effect and only if such securities are qualified for sale or
exempt from qualification under the applicable securities laws of the states in
which the various holders of Class A Warrants reside. Although the Company will
use its best efforts to (i) maintain the effectiveness of a current prospectus
covering the shares of Common Stock underlying the Class A Warrants and (ii)
maintain the registration of such Common Stock under the securities laws of the
states in which the Company initially qualifies the Units for sale in the
Offering, there can be no assurance that the Company will be able to do so. The
Company will be unable to issue shares of Common Stock to those persons desiring
to exercise their Class A Warrants if a current prospectus covering the shares
issuable upon the exercise of the Class A Warrants is not kept effective or if
such shares are not qualified nor exempt from qualification in the states in
which the holders of the Warrants reside. The Class A Warrants are subject to
redemption at any time by the Company at $.01 per Warrant 90 days after the
Effective Date, on 30 days prior written notice, if the average closing bid
price of the Common Stock shall exceed 120% of the Exercise Price (subject to
adjustment), for 10 consecutive trading days, at any time prior to such notice
and provided a current prospectus covering the shares is then effective under
federal securities laws. If the Class A Warrants are redeemed, Warrant holders
will lose their right to exercise the Warrants except during such 30-day
redemption period. Redemption of the Class A Warrants could force the holders to
exercise the Class A Warrants at a time when it may be disadvantageous for the
holders to do so or to sell the Class A Warrants at the then market price or
accept the redemption price, which is likely to be substantially less than the
market value of the Class A Warrants at the time of redemption. See "Description
of Securities -- Class A Warrants."
UNDERWRITER'S WARRANT
The Company has agreed to sell to the Underwriter, for nominal
consideration, a five-year warrant to purchase up to 230,000 shares of Common
Stock at 140% of the Price to Public. As long as the Underwriter's Warrant or
other outstanding warrants remain unexercised, the Company's ability to raise
additional capital may be adversely affected. See "Underwriting."
UNDESIGNATED STOCK
The Company's authorized capital consists of 100,000,000 shares of capital
stock. The Board of Directors, without any action by the Company's stockholders,
is authorized to designate and issue shares in such classes or series (including
classes or series of preferred stock) as it deems appropriate and to establish
the rights, preferences and privileges of such shares, including dividends,
liquidation and voting rights. The Company currently has 3,356,250 shares of
Common Stock outstanding and has authorized the issuance of an additional
2,645,000 shares of Common Stock in contemplation of this Offering. A further
3,625,000 shares of Common Stock have been authorized for the following: (i)
2,300,000 shares issuable upon the exercise of the Class A Warrants being issued
as part of this Offering (2,645,000 if the Underwriter's over-allotment option
is exercised in full), (ii) 230,000 shares issuable upon the exercise of
warrants to purchase one share of Common Stock being issued to the Underwriter,
(iii) 700,000 shares for issuance under the Company's 1995 Stock Option and
Compensation Plan, of which 338,000 have been granted, and (iv) 50,000 shares of
Common Stock issuable upon exercise of Directors' Stock Options. No other class
of common stock or preferred stock is currently designated and there is no
current plan to designate or issue any such securities. The rights of holders of
preferred stock and other classes of common stock that may be issued may be
superior to the rights granted to the holders of the Shares. Further, the
ability of the Board of Directors to designate and issue such undesignated
shares could impede or deter an unsolicited tender offer or takeover proposal
regarding the Company and the issuance of additional shares having preferential
rights could adversely affect the voting power and other rights of holders of
Common Stock. See "Management -- Stock Option and Compensation Plan" and
"Description of Securities."
10
<PAGE> 13
SHARES ELIGIBLE FOR FUTURE SALE
The sale, or availability for sale, of substantial amounts of Common Stock
in the public market subsequent to this offering may adversely affect the
prevailing market price of Common Stock and may impair the Company's ability to
raise additional capital by the sale of its equity securities. David W.
Anderson, Chairman and Chief Executive Officer of the Company, has agreed that
he will not sell, grant any option for the sale of, or otherwise dispose of any
equity securities of the Company (or any securities convertible into or
exercisable or exchangeable for equity securities of the Company) for 365 days
after the Effective Date without the prior written consent of the Underwriter.
The Company's other executive officers and directors have agreed to be subject
to the same restrictions for a period of 180 days. See "Description of
Securities -- Shares Eligible for Future Sale." It is expected that 1,356,250
shares of the Company's Common Stock which were sold in reliance on "private
placement" exemptions under the Securities Act of 1933, as amended (the "Act")
will become eligible for sale as early as fourth quarter 1997. See "Description
of Securities -- Shares Eligible for Future Sale."
MINNESOTA ANTI-TAKEOVER LAW
The Company is subject to Minnesota statutes regulating business
combinations and restricting voting rights of certain persons acquiring shares
of the Company, which may hinder or delay a change in control of the Company.
See "Description of Securities."
USE OF PROCEEDS
The net proceeds to be received by the Company from this Offering, after
deducting estimated costs and expenses of the Offering, are estimated to be
approximately $13,235,000 ($15,253,250 if the Underwriter's over-allotment
option is exercised in full). The number of units the Company is able to develop
with the proceeds will depend on the per-unit development cost. Per-unit
development costs will be affected by: (i) whether the unit is developed on
leased or purchased land, (ii) the amount of landlord contributions, if any, and
(iii) the mix of developed units among the roadhouse, BBQ & Blues and north
woods lodge concepts. The Company estimates the per-unit costs of developing
each of its currently contemplated concepts to be as follows:
<TABLE>
<S> <C>
Roadhouse.............................................. $ 800,000 - $1,800,000
BBQ & Blues............................................ $1,500,000 - $2,500,000
North Woods............................................ $1,000,000 - $2,000,000
</TABLE>
The Company intends to utilize the proceeds to develop and open as few as five
or as many as ten new units. The Company intends to apply the balance of the net
proceeds, if any, for working capital purposes.
Pending the use of proceeds as described above, the net proceeds will be
invested in short-term, investment-grade, interest-bearing securities.
11
<PAGE> 14
DILUTION
At June 30, 1996, the Company's net tangible book value was $269,621 or
approximately $0.13 per share of Common Stock. "Net tangible book value"
represents the tangible assets of the Company less all liabilities. Without
taking into account any further changes in net tangible book value after June
30, 1996, other than to give effect to (i) the sale of all of the Units offered
hereby and (ii) the application of the net proceeds therefrom, the proforma net
tangible book value as of such date would have been $13,504,621 or approximately
$3.14 per share, assuming the Units are sold. This represents an immediate
increase to existing shareholders in net tangible book value of approximately
$3.01 per share and an immediate dilution to new Shareholders of $3.36 per
share. "Dilution" represents the difference between the amount per share paid by
purchasers in this Offering and proforma net tangible book value per share of
the Common Stock after this Offering. The following table illustrates the
dilution in net tangible book value per share to new investors as of June 30,
1996.
<TABLE>
<CAPTION>
AMOUNT
------
<S> <C> <C>
Public offering price.......................................... $6.50
Net tangible book value before offering........................ $0.13
Increase in net tangible book value attributable to new
investors.................................................... 3.01
-----
Proforma net tangible book value after offering................ 3.14
-----
Dilution in net tangible book value to new investors(1)........ $3.36
=====
</TABLE>
- -------------------------
(1) The dilution in net tangible book value per share to new investors, assuming
the Underwriter's over-allotment option is fully exercised, would be $3.16.
The following tables summarize the differences between the existing
shareholders and the new investors with respect to the number of shares of
Common Stock purchased from the Company, the total cash consideration paid by
each group, and the average cash consideration per share of Common Stock paid by
each group (assuming the entire offering price of the Units is allocated to the
Common Stock).
<TABLE>
<CAPTION>
SHARES PURCHASED TOTAL CONSIDERATION AVERAGE
-------------------- ---------------------- PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
--------- ------- ----------- ------- ---------
<S> <C> <C> <C> <C> <C>
Existing Shareholder........................ 2,000,000 35.4% $ 1,000,000 4.8% $0.50
Private Placement Investors................. 1,356,250 24.0% 4,746,875 22.9% 3.50
New Investors............................... 2,300,000 40.6% 14,950,000 72.3% 6.50
--------- ----- ----------- -----
Total(1)............................... 5,656,250 100.0% $20,696,875 100.0%
========= ===== =========== =====
</TABLE>
- -------------------------
(1) The foregoing table takes into account the July 1996 sale of 1,356,250
shares of Common Stock at $3.50 per share but does not take into
consideration: (i) 345,000 Units subject to the Underwriter's over-allotment
option; (ii) 230,000 shares of Common Stock issuable upon exercise of the
Underwriter's Warrant at 140% of the initial public offering price; (iii)
2,300,000 shares of Common Stock (2,645,000 shares if the Underwriter's
over-allotment option is exercised in full) which are issuable upon the
exercise of the Class A Warrants at an exercise price of $8.50 per warrant;
(iv) 700,000 shares of Common Stock which are reserved for issuance under
the Company's 1995 Stock Option and Compensation Plan, of which 338,000 have
been granted; and (v) 50,000 shares of Common Stock issuable upon exercise
of directors' stock options at an exercise price of $4.33 per share.
DIVIDEND POLICY
The Company has never declared or paid any cash dividends on its Common
Stock, and the Board of Directors presently intends to retain all earnings, if
any, for use in the Company's business for the foreseeable future. Any future
determination as to declaration and payment of dividends will be made at the
discretion of the Board of Directors.
12
<PAGE> 15
CAPITALIZATION
The following table sets forth the capitalization of the Company as of June
30, 1996, as further adjusted to give effect to the sale of the Units offered
hereby and the anticipated application by the Company of the proceeds therefrom.
See the Consolidated Financial Statements.
<TABLE>
<CAPTION>
AT JUNE 30, 1996
-------------------------------------------
PROFORMA
ACTUAL PROFORMA(1) AS ADJUSTED(2)
--------- ------------ --------------
<S> <C> <C> <C>
Long-term debt(3)....................................... $ 251,981 $ 251,981 $ 251,981
Stockholders' equity:
Common Stock, $.01 par value, 100,000,000 shares
authorized, 2,000,000 shares issued and
outstanding; 3,356,250 shares proforma; 5,656,250
shares as adjusted................................. 20,000 33,563 56,563
Additional paid-in capital............................ 980,000 5,171,437 18,383,437
Accumulated deficit................................... (694,392) (694,392) (694,392)
-------- ---------- -----------
Total stockholders' equity....................... 305,608 4,510,608 17,745,608
-------- ---------- -----------
Total capitalization............................. $ 557,589 $4,762,589 $ 17,997,589
======== ========== ===========
</TABLE>
- -------------------------
(1) Assumes completion on June 30, 1996 of the sale of 1,356,250 shares of
Common Stock at $3.50 per share for net proceeds of approximately $4,200,000
which was completed in July 1996.
(2) As adjusted for the sale of the Units offered hereby and the anticipated
application of the net proceeds therefrom. Does not include (i) 345,000
Units subject to the Underwriter's over-allotment option; (ii) 230,000
shares of Common Stock issuable upon exercise of the Underwriter's Warrant
at 140% of the Price to Public; (iii) 2,300,000 shares of Common Stock which
are issuable upon the exercise of the Class A Warrants at an exercise price
of $8.50 per warrant; (iv) 700,000 shares of Common Stock reserved for
issuance under the Company's 1995 Stock Option and Compensation Plan, of
which 338,000 have been issued; and (v) 50,000 shares of Common Stock
issuable upon exercise of directors' stock options at an exercise price of
$4.33 per share.
(3) Long-term debt does not include capital lease financing which was obtained
in August 1996 for up to $1,100,000 for equipment, furniture, fixtures and
leasehold improvements. As of September 30, 1996, approximately $950,000 of
the $1,100,000 in lease financing had been funded.
13
<PAGE> 16
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
The Company was formed in March 1994 to develop, own and operate American
roadhouse-style barbeque restaurants under the name "Famous Dave's Bar-B-Que
Shack". The Company opened its first restaurant in the Linden Hills neighborhood
of Minneapolis in June 1995. Prior to opening the Linden Hills Unit, the Company
had no revenues and its activities were devoted solely to development.
The Company opened its second unit in June 1996 in Roseville, Minnesota, a
suburb of Minneapolis/ St. Paul and is presently developing three additional
units in the Minneapolis/St. Paul area.
Future revenues and profits, if any, will depend upon various factors,
including market acceptance of the Famous Dave's concept, the quality of the
restaurant operations, the ability to expand to multi-unit locations and general
economic conditions. The Company's present sources of revenue are limited to its
Existing Units. There can be no assurances the Company will successfully
implement its expansion plans, in which case it will continue to be dependent on
the revenues from the Existing Units. The Company also faces all of the risks,
expenses and difficulties frequently encountered in connection with the
expansion and development of a new and expanding business. Furthermore, to the
extent that the Company's expansion strategy is successful, it must manage the
transition to multiple site operations, higher volume operations, the control of
overhead expenses and the addition of necessary personnel.
At January 1, 1996, the Company elected a fiscal year ending on the Sunday
nearest December 31. Prior to January 1, 1996, the Company used a fiscal year
ending on December 31.
RESULTS OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 1995 AND
FOR THE TWENTY SIX WEEKS ENDED JUNE 30, 1996
The Company had no revenues or operations during the period from March 14,
1994 (Inception) to June 19, 1995 (the opening of the Linden Hills Unit).
Accordingly, comparisons with periods prior to June 19, 1995 are not meaningful.
Total Revenues -- The Linden Hills Unit opened in June 1995. The Roseville Unit
opened in June 1996. For the year ended December 31, 1995, the Company had total
sales of $481,510 compared with $1,015,856 for the 26 weeks ended June 30, 1996.
Sales increases are largely attributed to increased guest counts and the June
1996 opening of the Roseville Unit.
Costs and Expenses -- For the year ended December 31, 1995, the Company had a
net loss of $306,190 compared with a net loss of $388,202 for the 26 weeks ended
June 30, 1996. The net loss for each period is largely attributable to
additional expenses incurred as the Company increases its Corporate overhead
structure for the development of additional locations supported by revenues from
primarily a single operating unit. On March 4, 1996, the Company entered into
employment agreements with two of its executive officers requiring the payment
of annual compensation totaling $200,000 per year. On August 12, 1996, the
Company entered into an employment agreement with an executive officer providing
for a base annual salary of $125,000 per year plus bonuses. These agreements
will impact general and administrative expenses on an ongoing basis.
Results of the Linden Hills Unit -- The following table sets forth the unit
level results from the Company's Linden Hills Unit. Unit level results include
food and beverage costs, unit operating expenses and unit level
14
<PAGE> 17
depreciation and amortization, but do not include any portion of the Company's
general, administrative and development expenses or any allocation of interest
expense.
<TABLE>
<CAPTION>
PERIOD FROM
COMMENCEMENT
OF OPERATIONS
(JUNE 19, 1995)
TO DECEMBER 31, 26 WEEKS ENDED
1995 JUNE 30, 1996
------------------- -------------------
AMOUNT PERCENT AMOUNT PERCENT
-------- ------- -------- -------
<S> <C> <C> <C> <C>
Sales.................................................. $481,510 100.0% $778,968 100.0%
Food and beverage costs................................ 169,789 35.3 256,336 32.9
-------- ----- -------- -----
Gross profit......................................... 311,721 64.7 522,632 67.1
Operating expenses..................................... 302,217 62.8 305,006 39.2
Depreciation and amortization.......................... 17,009 3.5 16,760 2.2
-------- ----- -------- -----
Unit level income (loss)............................... $ (7,505) (1.6)% $200,866 25.7%
======== ===== ======== =====
</TABLE>
During the period from the commencement of Linden Hills operations (June
19, 1995) to December 31, 1995, food and beverage costs were $169,789 or 35.3%
of sales compared with $256,336 or 32.9% of sales for the June 30, 1996 period.
The improvement in food and beverage costs as a percentage of sales is due
primarily to improved operating efficiencies.
Restaurant operating expenses were $302,217 or 62.8% of sales during the
period from the commencement of Linden Hills operations (June 19, 1995) to
December 31, 1995 compared to $305,006 or 39.2% of sales during the 26 weeks
ended June 30, 1996. This improvement in restaurant operating expenses as a
percentage of sales is due primarily to improved labor management and other
operating efficiencies and increased sales.
Although no assurances can be given, management believes that the Linden
Hills Unit's current level of sales, trained workforce and general operational
improvements will improve unit level income in future periods.
LIQUIDITY AND CAPITAL RESOURCES
The Company has met its capital requirements through revenues from
operations, the sale of Common Stock to and borrowings from its sole
shareholder, David W. Anderson, and the private placement of debt and common
stock. During the period from March 14, 1994 (Inception) through December 31,
1995, the Company sold to Mr. Anderson 2,000,000 shares of Common Stock at $.50
per share. Pursuant to the subscription agreement relating to such purchase,
payments were made totaling $425,270 during part-year 1994 and $574,730 during
the year ended December 31, 1995. Additionally, the Company entered into a
revolving promissory note with Mr. Anderson allowing for advances of up to
$2,000,000. As of June 30, 1996, the Company had outstanding advances totaling
$359,349 under this arrangement. This note was paid in full in August 1996.
In July 1996, the Company completed a private placement of 1,356,250 shares
of Common Stock at $3.50 per share. The net proceeds to the Company were
approximately $4.2 million. Such proceeds have been, and will be, used for
additional unit development and working capital.
For the year ended December 31, 1995, the Company used $227,069 in cash
flow for operating activities and during the 26 weeks ended June 30, 1996, the
Company used $163,899 in cash flow for operating activities.
Since Inception, the Company's principal capital requirements have been the
funding of (i) the development of the Company and the Famous Dave's concept,
(ii) the construction of the Linden Hills and Roseville Units and the
acquisition of the furniture, fixtures and equipment therein and (iii) towards
the development of additional units as described below. Total capital
expenditures for the Linden Hills and Roseville Units were approximately
$425,000 and $1,110,000, respectively.
15
<PAGE> 18
The Company is developing additional restaurants in the Minneapolis/St.
Paul area. The Company had incurred approximately $995,000 in the development of
these units as of June 30, 1996. When completed, the Company estimates that
capital expenditures for these additional units will be approximately $6
million. The units are expected to be complete by the first half of 1997.
In addition to construction in progress, the Company has capitalized
approximately $39,000 of direct costs relating to the Roseville Unit and units
under construction. It is the Company's policy to amortize the direct costs of
hiring and training the initial work force and other direct costs associated
with opening a new Unit over a twelve-month period, beginning when the facility
is opened, if the recoverability of such costs can be reasonably assured.
Accordingly, initial costs related to the Linden Hills Unit were expensed as
incurred due to the developmental nature of the Unit.
In August 1996, the Company secured access to $1,100,000 of capital lease
financing. This lease financing will be used for equipment, furniture, fixtures
and leasehold improvements. As of September 30, 1996, approximately $950,000 of
the $1,100,000 in lease financing had been funded.
After the completion of these expansion plans, future development and
expansion will be financed through cash flow from operations and other forms of
financing such as the sale of additional equity and debt securities, capital
leases and other credit facilities. There are no assurances that such financing
will be available on terms acceptable or favorable to the Company.
16
<PAGE> 19
BUSINESS
OVERVIEW
The primary business of the Company is to develop, own and operate American
roadhouse-style barbeque restaurants under the name "Famous Dave's Bar-B-Que
Shack." The Company presently owns and operates three restaurants, one located
in the Linden Hills neighborhood of Minneapolis (the "Linden Hills Unit"), one
in Roseville, Minnesota (the "Roseville Unit") and the third in Calhoun Square
in Minneapolis (the "Calhoun Blues Joint" and, collectively with the Linden
Hills and Roseville Units, the "Existing Units"). The Calhoun Blues Joint opened
in early September 1996, and features live blues music during certain evenings
and an authentic Chicago blues decor. The Company is developing three additional
restaurants: in Minnetonka, Minnesota, on West 7th Street near the Highland Park
area of St. Paul, Minnesota and in Maple Grove, Minnesota. These last three
units are expected to open during the first half of 1997.
THE FAMOUS DAVE'S CONCEPT AND STRATEGY
Concept Development
The Company was founded by David W. Anderson in March 1994. As a cooking
enthusiast, Mr. Anderson has spent more than 20 years analyzing seasonings,
barbeque sauces, rib recipes, cooking techniques and equipment in the
development of his barbeque. In addition, Mr. Anderson has traveled extensively
throughout the United States, visiting hundreds of barbeque restaurants for the
purposes of researching regional tastes, ambiance, decor, menu development,
plate presentation, and restaurant design before opening his first restaurant in
Hayward, Wisconsin in June 1994 (the "Hayward Facility"). The Hayward Facility,
which is part of a larger resort complex, is not owned by the Company but by a
company wholly-owned by David W. Anderson.
Famous Dave's concept was developed around favorable memories associated
with backyard barbecues. In identifying a potential market niche, Mr. Anderson
has studied the development of certain restaurants that have capitalized on the
growing trend of home replacement meals taking the place of home cooked meals.
The Company hopes to capitalize on this trend, both for dine-in and take-out
meals. The Company believes that the comfortable, appealing decor of its
restaurants and the universal appeal of down-home cooking and barbecue will be
significant advantages in its attempts to penetrate this niche market.
Competitive Differentiation
On a national scale, the Company believes that it faces two major
competitors, Tony Roma's and Damon's. Both restaurant chains feature baked, as
opposed to pit smoked, ribs on a white platter. The Company believes that the
setting of such restaurants is more formal and has a masculine ambiance.
Famous Dave's specializes in real hickory pit smoked barbeque served in
colorful picnic-style baskets in a themed roadhouse-style restaurant with a warm
and inviting family atmosphere.
The Menu
The Company's primary focus is its food. The Company's mission is to
deliver the best barbeque in America. Each restaurant features a limited
assortment of menu items, such as hickory-smoked St. Louis-style spareribs,
Texas beef brisket, herb-roasted chicken, barbeque sandwiches, and char-grilled
burgers, as well as honey-buttered corn bread, potato salad, cole slaw and
"Wilbur"(TM) beans. Homemade desserts, including Famous Dave's bread pudding,
Kahlua(TM) brownies and strawberry shortcake, are a specialty. The Company's
Famous Dave's BBQ Sauces, which are provided in four regional variations
(Rich-N-Sassy(TM), Texas Pit(TM), Georgia Mustard(TM) and Hot Stuff(TM)),
represent signature items of the Company. The Company's Rich-N-Sassy(TM) Famous
Dave's BBQ Sauce was awarded first place in the mild tomato division of the 1995
Kansas City American Royal Barbeque Contest.
Lunch entrees range from $6 to $8 and dinner entrees from $10 to $12. The
average guest check for the five-week period ending September 29, 1996 was
approximately $11 per person. Food portions are generous to
17
<PAGE> 20
increase the perceived value. Management believes that the Company's food,
together with each restaurant's distinctive decor, have resulted in a high level
of repeat business. Presently, approximately 34% of the Company's business is
take-out at the Linden Hills Unit.
The Company intends to obtain a beer and wine license for most of its
restaurants, with the intention that such beverages will be served along with
meals. The Company does not intend to emphasize sales of beer and wine apart
from meals in most of its restaurants, primarily because the Company feels that
it reduces the number of table turns and therefore profitability. In addition to
a beer and wine license, the Company has obtained a liquor license for the
Calhoun Blues Joint.
Awards and Recognition
The Company's food and restaurants have won the following awards during the
past year:
<TABLE>
<S> <C>
First place (mild tomato category) Best Ribs
American Royal Barbeque Contest Critic's Choice Award
Kansas City, Missouri Minnesota Monthly
October 1995 May 1996
Best Bar-B-Que Joint First Place Award,
Mpls/St. Paul Magazine Best Barbeque Beef Brisket
January 1996 Rib Buddies Cookoff
St. Paul, Minnesota
1996 Diner's Choice Award May 1996
Best New Restaurant
Mpls/St. Paul Magazine
April 1996
</TABLE>
In addition, Governor Arne Carlson of Minnesota proclaimed Wednesday,
September 4, 1996, to be "Famous Dave's BBQ & Blues Day," to coincide with the
Grand Opening of the Calhoun Blues Joint.
Food Preparation and Delivery
The Company believes that ease of food preparation and delivery will be one
key to its success. While some restaurants require highly compensated and
extensively trained chefs, the food served at each restaurant is prepared in a
basic three-step process that requires minimal training time. Mr. Anderson has
developed prepared seasonings, sauces, bread mixes and other ingredients, which
allow each menu item to be served with minimal preparation. The Company views
this efficient and effective process as critical for its national expansion.
Focus on Customer Satisfaction
The Company is committed to staffing each unit with an experienced
management team and providing its customers with prompt, friendly and efficient
service. The customer's experience is also enhanced by the attitude and
attention of restaurant personnel. The Company recognizes that, in order to
maintain a high level of repeat customers and to attract new business, it must
provide superior customer service.
Famous Dave's maintains a mission statement that its goal is to strive for
"delighted" guests rather than just "satisfied" guests. The Company believes
that a customer establishes his or her opinion within the first seven seconds.
To this end, the Company has focused its property development to maximize first
impressions of sight, smell, sound, and feel. The Company accomplishes this
through the wonderful smell of hickory-smoked barbeque, the lively sounds of
juke joint blues music, the colorful and nostalgic decor, and the varied
textures of rough cut pine, corrugated tin roofs, and antiques.
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<PAGE> 21
Distinctive Roadhouse Decor
The Linden Hills and Roseville Units are "real" barbeque joints,
reminiscent of the old country-style roadhouse barbeque "joints" that dotted
rural America 50 years ago. The Company's nostalgic roadside shack theme is
promoted by the use of antiques and items of Americana from the '20s and '30s in
a rustic environment. The weathered barn wood walls, cozy, antique-filled
Southern country shack decor, overhead tin roofing and blues tunes in the air
are intended to convey the feeling of a down-home backyard barbeque.
Each restaurant table is covered with a red and white checkered oilcloth
and features salt, pepper and barbeque sauces stored in a six-pack beer
container. A large roll of paper towels accompanies every meal.
The Blues Component
The roadhouse theme is further enhanced by the use of blues music which,
together with the restaurant's decor, provides an entertaining dining
environment. Each restaurant features taped blues music that contributes to the
roadhouse theme. Mr. Anderson's attention to detail includes personal selection
of all music that is played in the restaurants. In addition, the Company's Blues
Joint features live blues music featuring the Famous Dave's Blues All-Stars (the
"Blues Band"). The Company believes that the Blues Band, which will have music
on CD's available for sale at each restaurant, will provide significant
marketing exposure for the Company.
PROPERTY AND UNIT LOCATIONS
The following table sets forth certain information about the Company's
existing and planned restaurants:
<TABLE>
<CAPTION>
APPROXIMATE APPROXIMATE
SQUARE RESTAURANT DATE OPENED OR
LOCATION FOOTAGE SEATS THEME PLANNED TO BE OPENED
- --------------------------------- ----------- ------------ ----------------- --------------------
<S> <C> <C> <C> <C>
Linden Hills..................... 2,900 60 + 40 Roadhouse June 1995
Minneapolis, MN patio seats
Roseville, MN.................... 4,800 100 Roadhouse June 1996
Calhoun Square................... 10,500 250 BBQ & Blues September 1996
Minneapolis, MN
Maple Grove, MN.................. 4,800 80-90 Roadhouse Spring 1997
Highland Park.................... 4,800 80-90 Roadhouse Spring 1997
St. Paul, MN
Minnetonka, MN................... 9,000 150-200 North woods lodge Spring 1997
</TABLE>
The following units are leased or subleased from S&D Land Holdings, Inc.,
("S&D") a Minnesota corporation wholly-owned by David W. Anderson, the Company's
Chairman and Chief Executive Officer, pursuant to the following terms:
1. Linden Hills. The Linden Hills site contains approximately 2,900 square feet
of restaurant space, including the patio area. The site is subject to a lease
from S&D effective January 1, 1996 for a 10-year term with base rent of
$48,800 per year with annual increases based upon increases in the consumer
price index ("CPI"). The Company also has the right to extend the term for
two five-year periods. In addition to base rent, the Company is responsible
for the payment of all operating costs and real estate taxes.
2. Roseville. S&D is the tenant under an Agreement of Lease and Agreement
Concerning Sublease (collectively, "Lease"). S&D has subleased the Roseville
site to the Company effective January 1, 1996 for $82,200 per year with
annual increases based upon increases in the CPI. The initial term under the
Sublease is seven years. The Company has the right to extend the term for an
additional five-year period. Should the Company so elect to extend, the
Company is obligated to pay percentage rent of 1% of gross sales as
additional rent. The improvements located on the site may revert to the
landlord at the termination of the Sublease. Assignment or subletting of any
interest in the Sublease requires the prior written approval
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<PAGE> 22
of the landlord. In addition to base rent and percentage rent, the Company is
responsible for the payment of all operating costs and real estate taxes.
3. Minnetonka. The Minnetonka site is a former restaurant located on
approximately 2.3 acres of land. The Minnetonka site has been leased
effective January 15, 1996 from S&D for a 10-year term with base rent of
$124,129 per year with annual increases based upon increases in the CPI. The
Company has the right to extend the term for two five-year periods. The
Company has the right to develop and/or remodel the existing building with
the prior written consent of S&D. In addition to base rent, the Company is
responsible for the payment of all operating costs and real estate taxes.
4. Highland Park. The Highland Park site contains approximately 2.3 acres of
vacant land and was leased from S&D effective January 1, 1996 for a 10-year
term with base rent of $44,900 per year with annual increases based upon
increases in the CPI. The Company also has the right to extend the term for
two five-year periods. The lease allows the Company to develop the site as a
restaurant at the Company's cost and with the prior written consent of S&D.
In addition to base rent, the Company is responsible for the payment of all
operating costs and real estate taxes.
The above-mentioned leases are non-cancelable by the Company. The Company or a
subsidiary also has entered into leases or subleases for the following
properties:
5. Calhoun Square -- Lake and Hennepin BBQ & Blues, Inc., a Minnesota
corporation and a wholly-owned subsidiary of the Company ("LHBB") has entered
into a lease for the Calhoun Square site with Calhoun Square Associates dated
January 5, 1996. The lease runs for a term of 15 years and LHBB has the right
to extend the term for two five-year periods. LHBB is obligated to pay base
rent of $13,293 per month plus percentage rent of 5% of gross sales over
$3,190,320. In addition to base rent and percentage rent, the Company is
responsible for the payment of its pro-rata share of operating costs and real
estate taxes.
6. Corporate Office -- The Company has assumed a lease effective as of August
31, 1996 for 7,800 square feet of office/warehouse space at 12700 Industrial
Park Boulevard in Plymouth, Minnesota. Rent payments due under the lease are
$3,951 per month, which exclude prorations for operating expenses and real
estate taxes. The lease terminates on August 31, 1998.
The Hayward Facility, which is part of a larger resort complex, is not
owned by the Company but by a company wholly-owned by David W. Anderson. See
"Business -- The Famous Dave's Concept and Strategy -- Concept Development."
EXPANSION STRATEGY
The Company intends to identify sites to locate its restaurants based on a
variety of factors including local market demographics, site viability,
competition and projected economics of each unit. Initial plans are to continue
to identify and finalize future site opportunities in the Minneapolis/St. Paul
area via land purchases, building and land purchases, land leases and building
and land leases. The Company believes the Minneapolis/St. Paul area can support
up to approximately 10 units, and expects to open at least three additional
units in the Minneapolis/St. Paul area in 1997.
Simultaneously, the Company intends to predominantly target additional
major metropolitan markets to broaden and enhance the recognition value of the
concept. Specific cities for expansion will be identified and analyzed as to
potential compatibility with the concept.
OPERATIONS, MANAGEMENT AND EMPLOYEES
The Company's ability to manage multi-location units will be central to its
overall success. The Company's management has very limited restaurant and
multi-unit restaurant experience. See "Risk Factors -- Limited Management
Experience/Need for Additional Management." The Company believes that its
management must include skilled personnel at all levels. The Company also
intends to hire other corporate level and management employees to help implement
and operate its expansion plans, including a chief operating officer with
significant multi-unit restaurant experience. At the unit level, the Company
places
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<PAGE> 23
specific emphasis on the position of general manager ("General Manager") and
seeks employees with significant restaurant experience and management expertise.
The General Manager of each restaurant reports directly to the President. The
Company strives to maintain quality and consistency in each of its units through
the careful training and supervision of personnel and the establishment of, and
adherence to, high standards relating to personnel performance, food and
beverage preparation, and maintenance of facilities. The Company believes that
it has been able to attract high quality, experienced restaurant and retail
management and personnel with its competitive compensation and bonus programs.
Staffing levels vary according to the time of day and size of the restaurant. In
general, each unit has between 30 and 50 employees.
All managers must complete a training program, during which they are
instructed in areas such as food quality and preparation, customer service, and
employee relations. The Company has also prepared operations manuals relating to
food and beverage quality and service standards. New staff members participate
in approximately three weeks of training under the close supervision of Company
management. Management strives to instill enthusiasm and dedication in its
employees, regularly solicits employee suggestions concerning Company
operations, and endeavors to be responsive to employees' concerns. In addition,
the Company has extensive and varied programs designed to recognize and reward
employees for superior performance. As of September 22, 1996, the Company had
approximately 300 employees, 60 of which were full-time. The Company believes
that its relationship with its employees is good.
PURCHASING
The Company strives to obtain consistent quality items at competitive
prices from reliable sources. Any discontinuance of such favorable pricing could
negatively impact the Company's purchasing abilities. In order to maximize
operating efficiencies and to provide the freshest ingredients for its food
products while obtaining the lowest possible prices for the required quality,
each unit's management team determines the daily quantities of food items needed
and orders such quantities from major suppliers at prices often negotiated
directly with the Company's corporate office. Food and supplies are shipped
directly to the restaurants, although the Company may develop a centralized food
preparation commissary. The Company purchases perishable food products locally.
MARKETING AND PROMOTION; THE RIBMOBILE
To date, the Company has relied primarily upon advertising, publicity and
"word of mouth" advertising to attract customers to its restaurants. The Company
also utilizes distinctive exterior signage and off-site billboards. In addition,
the Company has attempted to create equity in its "Famous Dave's" name by
offering items such as Famous Dave's Bar-B-Que sauces for retail sale at its
restaurants and in approximately 50 grocery stores in the Twin Cities area. The
Company also sells T-shirts, caps and sweatshirts bearing its logo in its
restaurants.
The Company utilizes the Famous Dave's Ribmobile to participate in local
rib festivals and barbeque contests. The Company currently participates in seven
or eight "ribfests" a year. The Company has found that such festivals and
concepts result in favorable publicity.
TRADEMARKS
The Company's ability to successfully implement its Famous Dave's concept
will depend in part upon its ability to protect its trademarks. The Company has
filed a trademark application with the United States Patent and Trademark Office
to register the mark "Famous Dave's" and design. There can be no assurance that
the Company will be granted trademark registration for any or all of the
proposed uses in the Company's applications. In the event the Company's mark is
granted registration, there can be no assurance that the Company can protect
such mark and design against prior users in areas where the Company conducts
operations. There is no assurance that the Company will be able to prevent
competitors from using the same or similar marks, concepts or appearance.
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<PAGE> 24
LEGAL PROCEEDINGS
The Company is not a party to any material litigation and is not aware of
any threatened litigation that would have a material adverse effect on its
business.
COMPETITION
The food service industry is intensely competitive with respect to food
quality, concept, location, service and price. In addition, there are many
well-established food service competitors with substantially greater financial
and other resources than the Company and with substantially longer operating
histories. The Company believes that it competes with other full-service dine-in
restaurants, take-out food service companies, fast-food restaurants,
delicatessens, cafeteria-style buffets, and prepared food stores, as well as
with supermarkets and convenience stores. Competitors include national,
regional, and local restaurants, purveyors of carry-out food, and convenience
dining establishments.
Primary national and regional competitors of the Company include such other
"family-oriented" comparable restaurants as Applebee's, TGI Friday's, Chili's,
Ground Round, Bennigan's and barbeque-related restaurants such as Tony Roma's,
Red Hot & Blue, Damon's and Sonny's. The Company believes that it can
effectively compete in this market by offering superior food taste, an
attractive highly-themed family atmosphere, and superior ambiance provided by
carefully chosen blues music and an "open kitchen" smell of real barbeque.
Competition in the food service business is often affected by changes in
consumer tastes, national, regional, and local economic and real estate
conditions, demographic trends, traffic patterns, the cost and availability of
labor, purchasing power, availability of product, and local competitive factors.
The Company attempts to manage or adapt to these factors, but it should be
recognized that some or all of these factors could cause the Company to be
adversely affected.
In addition, to the extent that barbeque restaurants are frequently viewed
as "local," the Company may experience intense competition or lack of consumer
acceptance if it expands into areas with existing barbeque restaurants.
REGULATION
Restaurants are subject to licensing and regulation by state and local
health, sanitation, safety, fire, and other authorities and are also subject to
state and local licensing and regulation of the sale of alcoholic beverages and
food. Difficulties in obtaining or failure to obtain required licenses and
approvals will result in delays in, or cancellation of, the opening of
restaurants. The food and liquor licenses are also subject to suspension or
non-renewal if the granting authority determines that the conduct of the holder
does not meet the standards for initial grant or renewal. The Company believes
that it is in compliance with all licensing and other regulations.
The federal Americans With Disabilities Act prohibits discrimination on the
basis of disability in public accommodations and employment. The Company could
be required to expend funds to modify its restaurants in order to provide
service to or make reasonable accommodations for disabled persons. The Company's
restaurants are currently designed to be accessible to the disabled. The Company
believes it is in substantial compliance with all current applicable regulations
relating to accommodations for the disabled.
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<PAGE> 25
MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS
The following table sets forth certain information with respect to each of
the directors and executive officers of the Company.
<TABLE>
<CAPTION>
NAME AGE POSITION(S) HELD
- ----------------------------------- --- ---------------------------------------------------
<S> <C> <C>
David W. Anderson.................. 42 Chairman of the Board and Chief Executive Officer
William L. Timm.................... 36 President
Mark A. Payne...................... 37 Vice President, Finance, Chief Financial Officer,
Secretary and Treasurer
Martin J. O'Dowd................... 48 Director
Thomas J. Brosig................... 47 Director
</TABLE>
David W. Anderson, founder of the Company, has been the Chairman of the
Board since its formation. Mr. Anderson is also a founder and a director of
Rainforest Cafe, Inc. In October 1990, Mr. Anderson co-founded Grand Casinos,
Inc. and through March 1996 served as a director and Executive Vice President.
William L. Timm has been President of the Company since March 1996. From
February 1987 to December 1995, Mr. Timm was a self-employed, independent
contractor working as a National Marketing Director for National Safety
Associates International, Inc., an international distribution network of
consumer products, including water and air filtration systems and nutritional
products. In this position, Mr. Timm was appointed to the Executive President's
Advisory Council as one of the top 1% earners for National Safety Associates.
Mark A. Payne has been Vice President, Finance, Chief Financial Officer,
Secretary and Treasurer since August 1996. Previously, and since August 1995 he
was Senior Vice President, Business Development and Acquisitions of ValueVision
International, Inc., a television home shopping network. Prior to that and since
December 1990, he served as Vice President, Finance and Chief Financial Officer
at ValueVision.
Martin J. O'Dowd has been a director of the Company since August 1996.
Since May 1995, Mr. O'Dowd has served as President and Chief Operating Officer
of Rainforest Cafe, Inc. In June 1995 he became a director and Secretary of
Rainforest Cafe, Inc. From July 1987 to May 1995, Mr. O'Dowd was Corporate
Director, Food and Beverage Services, for Holiday Inn Worldwide. From August
1985 to July 1987, Mr. O'Dowd was Vice President and General Operations Manager
for the Hard Rock Cafe in New York. Mr. O'Dowd is also a director of Elephant &
Castle Group, Inc.
Thomas J. Brosig has been a director of the Company since August 1996.
Since August 1994, Mr. Brosig has served as Executive Vice President - Investor
Relations and Special Projects of Grand Casinos, Inc. From its inception until
May 1995, Mr. Brosig served as Secretary of Grand Casinos, Inc., and from May
1993 until August 1994, Mr. Brosig served as its President. Mr. Brosig also
served as Grand Casinos, Inc.'s Chief Operating Officer from October 1991 until
May 1993, and as its Chief Financial Officer from its inception until January
1992. Mr. Brosig is also a director of G-III Apparel Group Ltd., a manufacturer
and distributor of leather apparel, and Game Financial, Inc., which provides
funds transfer services to casino customers.
EXECUTIVE COMPENSATION
The following table sets forth all cash and non-cash compensation paid by
the Company for the period from March 14, 1994 (Inception) through December 31,
1995 to the Company's executive officer:
<TABLE>
<CAPTION>
LONG-TERM
ANNUAL COMPENSATION COMPENSATION
---------------------- ---------------
OTHER ANNUAL AWARD
NAME OF INDIVIDUAL POSITION SALARY COMPENSATION OPTIONS GRANTED
- ----------------------------- ----------------------------- ------ ------------ ---------------
<S> <C> <C> <C> <C>
David W. Anderson............ Chairman of the Board and $0 $0 --
Chief Executive Officer
</TABLE>
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<PAGE> 26
EMPLOYMENT AGREEMENTS
David W. Anderson has been retained pursuant to a two-year employment
agreement dated as of March 4, 1996, subject to early termination for variety of
reasons, including voluntary termination by Mr. Anderson. Mr. Anderson will
receive a base salary of $100,000 per year during the first year of employment,
and such subsequent amounts as may be determined by the Company's Board of
Directors. Such agreement also provides that Mr. Anderson will receive six
months' severance if terminated by the Company for a reason other than "cause,"
as defined therein. Mr. Anderson will also receive medical, dental and other
customary benefits. The employment agreement provides that Mr. Anderson will not
compete with the Company for two years if he resigns or is terminated for cause.
William L. Timm has been retained pursuant to a two-year employment
agreement dated as of March 4, 1996, subject to early termination for a variety
of reasons. Mr. Timm will receive a base salary of $100,000 during the first
year of employment and such subsequent amounts as may be determined by the
Company's Board of Directors. Such agreement also provides that Mr. Timm will
receive six months' severance if terminated by the Company for a reason other
than "cause," as defined therein. Mr. Timm will also receive medical, dental and
other customary benefits. The employment agreement provides that Mr. Timm will
not compete with the Company for two years if he resigns or is terminated for
cause.
Mark A. Payne has been retained pursuant to a three-year employment
agreement dated as of August 12, 1996, subject to early termination for a
variety of reasons. Mr. Payne will receive a base salary of $125,000 during the
first year of employment and such subsequent amounts as may be determined by the
Company's Board of Directors. Mr. Payne will also receive $25,000 upon the
closing of the Company's initial public offering. Such agreement also provides
that Mr. Payne will receive six months severance if terminated by the Company
for a reason other than "cause," as defined therein, within the first year of
his employment and 12 months severance if terminated by the Company for a reason
other than cause after the first year of employment. Mr. Payne will also receive
medical, dental and other customary benefits. The employment agreement provides
that Mr. Payne will not compete with the Company for two years if he resigns or
is terminated for cause.
The Company intends to retain other management employees pursuant to
employment and consulting agreements. The Company intends to offer stock options
to such employees. The Company has no current plans to pay cash compensation to
its directors.
STOCK OPTION AND COMPENSATION PLAN
The Company has reserved for issuance 700,000 shares of Common Stock
pursuant to its 1995 Stock Option and Incentive Compensation Plan (the "Stock
Option Plan"). As of the date of this Prospectus, the Company has granted an
aggregate of 338,000 options, 167,500 of which were granted subsequent to June
30, 1996.
The Plan is administered by a stock option committee (the "Stock Option
Committee") which has the discretion to determine the number and purchase price
of shares subject to stock options (which price may not be below 85% of the fair
market value of the Common Stock on the date granted), the term of each option,
and the time or times during its term when the option becomes exercisable.
For a one-year period following the Effective Date, the Company will not
grant options to promoters, employees or affiliates of the Company which,
together with options previously granted to such persons, would in the aggregate
exceed 15% of the then outstanding shares of Common Stock.
BOARD OF DIRECTORS
Each of the Company's directors has been elected to serve until the next
annual meeting of shareholders. The Company's executive officers are appointed
annually by the Company's directors. Each of the Company's directors continues
to serve until his or her successor has been designated and qualified. Directors
currently receive no fees.
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<PAGE> 27
DIRECTOR STOCK OPTIONS
As of the Effective Date, the Company granted options to acquire an
aggregate of 50,000 shares of Common Stock at an exercise price of $4.33 per
share to Messrs. O'Dowd and Brosig, the Company's two outside directors. These
options vest on a pro-rata basis on the first, second and third anniversaries of
the Effective Date and are exercisable for ten years from the date of grant.
CERTAIN TRANSACTIONS
On January 1, 1996, the Company transferred the real estate, excluding
improvements, of its Linden Hills Unit and the site of the proposed unit in the
Highland Park area of St. Paul, Minnesota to David W. Anderson, Chairman and
Chief Executive Officer of the Company, in exchange for amounts due to Mr.
Anderson and assumption of bank debt totaling $781,023. These properties were
transferred to Mr. Anderson at the Company's cost which, due to the short amount
of time which elapsed between the transfer and the Company's original
acquisition, the Company believes approximated the fair market values of the
real estate exchanged. Mr. Anderson concurrently transferred the real estate to
S&D Land Holdings, Inc. ("S&D"), a Minnesota company wholly owned by Mr.
Anderson, and entered into leases with the Company for such real estate. See
Note (7) to the Consolidated Financial Statements. The Company also leases the
Roseville Unit and the real estate for the Minnetonka Unit from S&D. The Company
does not currently intend to enter into any additional leases with S&D. See
"Business -- Property and Unit Locations."
The Company has a $2,000,000 revolving note with David W. Anderson. The
note bears interest at 8%, is unsecured and due on demand. The outstanding
balance on the note was $359,349 at June 30, 1996. This note was paid in full in
August 1996.
Pursuant to a license and trademark agreement between the Company and Grand
Pines Resort, Inc., a Minnesota corporation wholly-owned by David W. Anderson
("Grand Pines"), the Company licenses its trademarks and recipes to Grand Pines
in exchange for a 4% annual royalty fee on gross food sales. Also, pursuant to a
management agreement between the Company and Grand Pines Resort, Inc., the
Company has agreed to provide certain management services relative to the
Hayward Facility in exchange for a fee of 3% of gross food sales.
It is the Company's belief that each transaction referred to in this
section was on terms no less favorable to the Company than could have been
obtained from non-affiliated parties. Any future transactions and loans with
officers, directors or 5% shareholders of the Company's Common Stock will be on
terms no less favorable to the Company than could be obtained from unaffiliated
third parties. All future material affiliated transactions and loans, and any
forgiveness of loans, must be approved by a majority of the independent outside
members of the Company's Board of Directors who do not have an interest in the
transactions.
PRINCIPAL SHAREHOLDERS
There are presently 100,000,000 shares of the Company's Common Stock
authorized, of which 3,356,250 shares are issued and outstanding. The following
table sets forth certain information regarding beneficial ownership of the
Company's Common Stock as of the date of this Prospectus, as adjusted to give
effect to the issuance of the securities offered hereby, by (i) each person
known by the Company to be the beneficial owner of more than 5% of the
outstanding Common Stock, (ii) each director of the Company, (iii) each
executive officer of the Company, and (iv) all executive officers and directors
of the Company as a group. See "Description of Securities -- Conversion of
Notes." Unless otherwise indicated, each of the following persons has sole
voting and investment power with respect to the shares of Common Stock set forth
opposite their
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<PAGE> 28
respective names. The address of directors and executive officers is 12700
Industrial Boulevard, Suite 60, Minneapolis, Minnesota 55441.
<TABLE>
<CAPTION>
PERCENT
-----------------------
SHARES OF PRIOR TO AFTER
NAME COMMON STOCK OFFERING OFFERING(1)
- ----------------------------------------------------------- ------------ -------- -----------
<S> <C> <C> <C>
David W. Anderson.......................................... 2,000,000(2) 59.6% 35.4%
William L. Timm............................................ 600,000(3) 17.9 10.6
Mark A. Payne.............................................. 25,000(4) 0.7 0.4
Martin J. O'Dowd........................................... 13,000 0.4 0.2
Thomas J. Brosig........................................... 20,000 0.6 0.4
OKABENA Partnership K...................................... 292,750(5) 8.7 5.2
All officers and directors as a group (5 persons).......... 2,058,000 60.9 36.4
</TABLE>
- -------------------------
(1) Does not include any Shares that may be purchased in the offering by the
listed persons.
(2) Owned in joint tenancy with his spouse, Kathryn Anderson. Includes 100,000
shares owned by Grand Pines Resorts, Inc., a corporation wholly-owned by Mr.
Anderson. 600,000 of such Shares are subject to an option to purchase for
$1.00 per share held by William L. Timm, the Company's President. Such
options vest over a five-year period in equal increments beginning March 1,
1997. Giving effect to such options, Mr. Anderson's percentage ownership
would be 41.7% prior to the offering and 26.1% after the offering.
(3) Includes 600,000 shares beneficially owned by David W. Anderson subject to
an option held by Mr. Timm to purchase for $1.00 per share. Such options
vest over a five-year period in equal increments beginning March 1, 1997.
(4) Represents shares issuable upon exercise of stock options to be vested on
the Effective Date that will be exercisable within 60 days. Does not include
100,000 shares pursuant to options granted to Mr. Payne on August 12, 1996
which vest and become exercisable ratably over a four-year period.
(5) Includes 10,000 shares owned by Gary S. Kohler, an affiliate. The address of
both such persons is 5140 Norwest Center, 90 South Seventh Street,
Minneapolis, Minnesota 55402. None of the Partnership nor any person who may
be deemed to be an ultimate beneficial owner of the shares held by the
Partnership is otherwise affiliated with the Company, the Underwriter or any
of their affiliates.
26
<PAGE> 29
DESCRIPTION OF SECURITIES
UNITS
Each Unit offered hereby consists of one share of Common Stock and one
redeemable Class A Warrant. Warrants are immediately exercisable and, commencing
ten trading days after the Effective Date, separately transferable from the
Common Stock. Each Class A Warrant entitles the holder to purchase at any time,
until the earlier of redemption by the Company or four years following the
Effective Date, one share of Common Stock at an exercise price of $8.50 per
warrant, subject to adjustment.
CAPITAL STOCK
The Company's authorized capital stock consists of 100,000,000 undesignated
shares, $.01 par value per share in the case of Common Stock, and a par value as
determined by the Board of Directors in the case of Preferred Stock. After the
closing of this Offering, there will be issued and outstanding 6,001,250 shares
of Common Stock (if the Underwriter's over-allotment option is exercised in
full).
COMMON STOCK
There are no preemptive, subscription, conversion or redemption rights
pertaining to the Common Stock. The absence of preemptive rights could result in
a dilution of the interest of existing shareholders should additional shares of
Common Stock be issued. Holders of the Common Stock are entitled to receive such
dividends as may be declared by the Board of Directors out of assets legally
available therefor, and to share ratably in the assets of the Company available
upon liquidation.
Each share of Common Stock is entitled to one vote for all purposes and
cumulative voting is not permitted in the election of directors. Accordingly,
the holders of more than 50% of all of the outstanding shares of Common Stock
can elect all of the directors. Significant corporate transactions such as
amendments to the articles of incorporation, mergers, sales of assets and
dissolution or liquidation require approval by the affirmative vote of the
majority of the outstanding shares of Common Stock. Other matters to be voted
upon by the holders of Common Stock normally require the affirmative vote of a
majority of the shares present at the particular shareholders' meeting. The
Company's directors and officers as a group beneficially own approximately 60.9%
of the outstanding Common Stock of the Company. Upon completion of this
Offering, such persons will beneficially own approximately 36.4% of the
outstanding shares (34.3% if the Underwriter's over-allotment option is
exercised in full). See "Principal Shareholders." Accordingly, such persons will
continue to be able to substantially control the Company's affairs, including,
without limitation, the sale of equity or debt securities of the Company, the
appointment of officers, the determination of officers' compensation and the
determination whether to cause a registration statement to be filed. There are
119 holders of record of the Company's Common Stock as of the date of this
Prospectus.
The rights of holders of the shares of Common Stock may become subject in
the future to prior and superior rights and preferences in the event the Board
of Directors establishes one or more additional classes of Common Stock, or one
or more additional series of Preferred Stock. The Board of Directors has no
present plan to establish any such additional class or series.
CLASS A WARRANTS
The Class A Warrants included as part of the Units being offered hereby
will be issued under and governed by the provisions of a Warrant Agreement (the
"Warrant Agreement") between the Company and Norwest Bank Minnesota, N.A., as
Warrant Agent (the "Warrant Agent"). The following summary of the Warrant
Agreement is not complete, and is qualified in its entirety by reference to the
Warrant Agreement, a copy of which has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part.
Commencing ten days after the Effective Date, the shares of Common Stock
and the Class A Warrants offered as part of the Units will be detachable and
separately transferable. One Class A Warrant entitles the holder
("Warrantholder") thereof to purchase one share of Common Stock during the four
years following
27
<PAGE> 30
the Effective Date, subject to earlier redemption, provided that at such time a
current prospectus relating to the shares of Common Stock issuable upon exercise
of the Class A Warrants is in effect and the issuance of such shares is
qualified for sale or exempt from qualification under applicable state
securities laws. Each Class A Warrant will be exercisable at an exercise price
of $8.50 per warrant, subject to adjustment in certain events.
The Class A Warrants are subject to redemption by the Company beginning 90
days after the Effective Date, on not less than 30 days written notice, at a
price of $.01 per warrant at any time following a period of 10 consecutive
trading days where the per share average closing bid price of the Common Stock
exceeds 120% of the Exercise Price (subject to adjustment), provided that a
current prospectus covering the shares issuable upon the exercise of the Class A
Warrants is then effective under federal securities laws. For these purposes,
the closing bid price of the Common Stock shall be determined by the closing bid
price as reported by Nasdaq so long as the Common Stock is quoted on Nasdaq and,
if the Common Stock is listed on a national securities exchange, shall be
determined by the last reported sale price on the primary exchange on which the
Common Stock is traded. Holders of Class A Warrants will automatically forfeit
all rights thereunder except the right to receive the $.01 redemption price per
warrant unless the Class A Warrants are exercised before they are redeemed.
The Warrantholders are not entitled to vote, receive dividends, or exercise
any of the rights of holders of shares of Common Stock for any purpose. The
Class A Warrants are in registered form and may be presented for transfer,
exchange or exercise at the office of the Warrant Agent. Although the Company
has applied for listing of the Class A Warrants on the Nasdaq SmallCap Market,
there is currently no established market for the Class A Warrants, and there is
no assurance that any such market will develop.
The Warrant Agreement provides for adjustment of the exercise price and the
number of shares of Common Stock purchasable upon exercise of the Class A
Warrants to protect Warrantholders against dilution in certain events, including
stock dividends, stock splits, reclassification, and any combination of Common
Stock, or the merger, consolidation, or disposition of substantially all the
assets of the Company.
The Class A Warrants may be exercised upon surrender of the certificate
therefor on or prior to the expiration date (or earlier redemption date) at the
offices of the Warrant Agent, with the form of "Election to Purchase" on the
reverse side of the certificate properly completed and executed as indicated,
accompanied by payment of the full exercise price (by certified or cashier's
check payable to the order of the Company) for the number of Class A Warrants
being exercised.
SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of this Offering, there will be 5,656,250 shares of Common
Stock issued and outstanding (6,001,250 if the Underwriter's over-allotment
option is exercised in full). The shares purchased in this Offering will be
freely tradeable without registration or other restriction under the Securities
Act of 1933, as amended (the "Act"), except for any shares purchased by an
"affiliate" of the Company (as defined in the Act).
All the currently outstanding shares were issued in reliance upon the
"private placement" exemptions provided by the Act and are deemed restricted
securities within the meaning of Rule 144 ("Restricted Shares"). Restricted
Shares may not be sold unless they are registered under the Act or are sold
pursuant to an applicable exemption from registration, including an exemption
under Rule 144. It is expected that 1,356,250 Restricted Shares will become
eligible for sale in July 1998, assuming all of the other requirements of Rule
144 have been satisfied. In addition, the Company has agreed to file a
registration statement relating to these shares one year following the Effective
Date, provided that the Company is then eligible to use Form S-3.
In general, under Rule 144 as currently in effect, any person (or persons
whose shares are aggregated) including persons deemed to be affiliates, whose
restricted securities have been fully paid for and held for at least two years
from the later of the date of issuance by the Company or acquisition from an
affiliate, may sell such securities in broker's transactions or directly to
market makers, provided that the number of shares sold in any three month period
may not exceed the greater of 1% of the then-outstanding shares of Common Stock
28
<PAGE> 31
or the average weekly trading volume of the shares of Common Stock in the
over-the-counter market during the four calendar weeks preceding the sale. Sales
under Rule 144 are also subject to certain notice requirements and the
availability of current public information about the Company. After three years
have elapsed from the later of the issuance of restricted securities by the
Company or their acquisition from an affiliate, such securities may be sold
without limitation by persons who are not affiliates under the rule.
In general, under Rule 701 as currently in effect, any employee, consultant
or advisor of the Company who purchases shares from the Company by exercising a
stock option outstanding on the date of the Offering is eligible to resell such
shares 90 days after the date of the Prospectus in reliance on Rule 144, but
need not comply with certain restrictions contained in Rule 144, including the
holding period requirement. As soon as practicable after the Offering, the
Company intends to register 700,000 shares of Common Stock that are reserved for
issuance under the Stock Option Plan. See "Management." After the effective date
of such registration statement, shares issued upon exercise of outstanding
options would generally be eligible for immediate resale in the public market,
subject to vesting under the applicable option agreements.
Following this Offering, the Company cannot predict the effect, if any,
that sales of the Common Stock or the availability of such Common Stock for sale
will have on the market price prevailing from time to time. Nevertheless, sales
by existing shareholders of substantial amounts of Common Stock could adversely
affect prevailing market prices for the Common Stock if and when a public market
exists. David W. Anderson, Chairman and Chief Executive Officer of the Company,
has agreed that he will not sell, grant any option for the sale of, or otherwise
dispose of any shares of Common Stock for 365 days after the Effective Date
without the prior written consent of the Underwriter. The Company's other
executive officers and directors have agreed to be subject to the same
restrictions for a period of 180 days.
MINNESOTA ANTI-TAKEOVER LAW
The Company is governed by the provisions of Sections 302A.671 and 302A.673
of the Minnesota Business Corporation Act. In general, Section 302A.671 provides
that the shares of a corporation acquired in a "control share acquisition" have
no voting rights unless voting rights are approved in a prescribed manner. A
"control share acquisition" is an acquisition, directly or indirectly, of
beneficial ownership of shares that would, when added to all other shares
beneficially owned by the acquiring person, entitle the acquiring person to have
voting power of 20% or more in the election of directors. In general, Section
302A.673 prohibits a publicly-held Minnesota corporation from engaging in a
"business combination" with an "interested shareholder" for a period of four
years after the date of the transaction in which the person became an interested
shareholder, unless the business combination is approved in a prescribed manner.
"Business combination" includes mergers, asset sales and other transactions
resulting in a financial benefit to the interested shareholder. An "interested
shareholder" is a person who is the beneficial owner, directly or indirectly, of
10% or more of the corporation's voting stock or who is an affiliate or
associate of the corporation and at any time within four years prior to the date
in question was the beneficial owner, directly or indirectly, of 10% or more of
the corporation's voting stock.
TRANSFER AGENT AND REGISTRAR
Firstar Trust Company is the transfer agent and registrar for the Common
Stock, the Class A Warrants and the Units.
29
<PAGE> 32
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement between
the Company and R.J. Steichen and Company (the "Underwriter"), the Underwriter
has agreed to purchase from the Company, and the Company has agreed to sell to
the Underwriter, 2,300,000 Units.
The Underwriting Agreement provides that the obligations of the Underwriter
are subject to approval of certain legal matters by counsel and to various other
conditions. The nature of the Underwriter's obligations are such that they are
committed to purchase and pay for all of the Units if any are purchased.
The Underwriter proposes to offer the Units directly to the public at the
public offering price set forth on the cover page of this Prospectus, and at
such price less a concession not in excess of $ per Unit to certain other
dealers who are members of the National Association of Securities Dealers, Inc.
After the public offering, the initial offering price and other selling terms
may be changed by the Underwriter. The Underwriter has advised the Company that
it does not intend to confirm sales of Units to any accounts over which it
exercises discretionary authority.
The Company has granted the Underwriter a 45-day over-allotment option to
purchase up to an aggregate of 345,000 additional Units exercisable at the
public offering price less the underwriting discount. The Underwriter may
exercise such option only to cover over-allotments made in connection with the
sale of the Units offered hereby.
David W. Anderson, Chairman and Chief Executive Officer of the Company, has
agreed that he will not sell, grant any option for the sale of, or otherwise
dispose of any equity securities of the Company (or any securities convertible
into or exercisable or exchangeable for equity securities of the Company), for a
period of 365 days after the date hereof without the prior written consent of
the Underwriter. The Company's other executive officers and directors have
agreed to be subject to the same restrictions for a period of 180 days.
Each of the Company and the Underwriter has agreed to indemnify the other
(including officers, directors and control persons of each other) against
certain liabilities, losses and expenses, including liabilities under the Act,
or to contribute to payments that the Underwriter may be required to make in
respect thereof. Insofar as indemnification for liabilities arising under the
Act may be permitted to directors, officers and controlling persons of the small
business issuer pursuant to the foregoing provisions, or otherwise, the small
business issuer 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.
The Company has agreed to sell to the Underwriter, for $50.00, five-year
warrants to purchase up to 230,000 shares of Common Stock (the "Underwriter's
Warrant") at 140% of the Price to Public. The Underwriter's Warrant may be
exercised commencing one year after the Effective Date. The exercise price and
the number of shares may, under certain circumstances, be subject to adjustment
pursuant to anti-dilution provisions.
The Company has agreed to pay the Underwriter a nonaccountable expense
allowance equal to 2.0% of the aggregate offering price of the shares or
$299,000 ($343,850 if the Underwriter's over-allotment option is exercised in
full).
In July 1996, the Company sold an aggregate of 1,356,250 shares of Common
Stock in a private placement in which the Underwriter acted as selling agent.
The Underwriter received agent's commissions of approximately $427,000. The
Underwriter was given a one-year right of first refusal with respect to the
Company's initial public offering.
At the request of the Company, up to 15% of the Units offered hereby (the
"Designated Units") may be reserved for sale to persons designated by the
Company. The price of the Designated Units will be the Price to Public set forth
on the cover of this Prospectus.
Prior to the Offering, there exists no public market for the securities of
the Company. The initial public offering price of the Units and the exercise
price of the Warrants have been arbitrarily determined by negotiation between
the Company and the Underwriter and bear no relationship to the Company's
current
30
<PAGE> 33
operating results, book value, net worth, financial statement criteria of value,
the history of and prospects for the industry in which the Company principally
competes or the capability of the Company's management. There can be no
assurance, however, that the price at which the Common Stock, the Class A
Warrants or the Units will sell in the public market after this Offering will
not be lower than the price at which they are sold by the Underwriter.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for the
Company by Maslon Edelman Borman & Brand, a Professional Limited Liability
Partnership, Minneapolis, Minnesota. Certain legal matters relating to the sale
of the shares of Common Stock will be passed upon for the Underwriter by
Doherty, Rumble & Butler, P.A., Minneapolis, Minnesota.
EXPERTS
The financial statements for the periods ended December 31, 1994 and 1995
included herein have been audited by Lund Koehler Cox & Company, PLLP,
independent public accountants, as indicated in their report with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in giving said report.
ADDITIONAL INFORMATION
The Company is not a reporting company under the Securities Exchange Act of
1934, as amended. The Company has filed with the Washington, D.C. Office of the
Securities and Exchange Commission (the "Commission") a Registration Statement
on Form SB-2 under the Act with respect to the Common Stock offered hereby. This
Prospectus filed as a part of the Registration Statement does not contain all of
the information contained in the Registration Statement and the exhibits
thereto, certain portions of which have been omitted in accordance with the
rules and regulations of the Commission. For further information with respect to
the Company and the securities offered hereby, reference is made to such
Registration Statement including the exhibits and schedules thereto. Statements
contained in this Prospectus as to the contents of any contract, agreement or
other documents are not necessarily complete, and in each instance, reference is
made to such contract or other document filed as an exhibit to the Registration
Statement, each such statement being qualified in all respects by such
reference. The Registration Statement and exhibits may be inspected without
charge and copied at the Washington office of the Commission, 450 Fifth Street,
N.W., Washington, DC 20549, and copies of such material may be obtained at
prescribed rates from the Commission's Public Reference Section at the same
address.
31
<PAGE> 34
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Report of Independent Public Accountants.............................................. F-2
Consolidated Financial Statements:
Balance Sheets...................................................................... F-3
Statements of Operations............................................................ F-4
Statements of Stockholder's Equity.................................................. F-5
Statements of Cash Flows............................................................ F-6
Notes to Consolidated Financial Statements............................................ F-7
</TABLE>
F-1
<PAGE> 35
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Famous Dave's of America, Inc.:
We have audited the accompanying consolidated balance sheet of Famous
Dave's of America, Inc. and Subsidiary as of December 31, 1995 and the related
consolidated statements of operations, stockholder's equity and cash flows for
the period from March 14, 1994 (inception) to December 31, 1994 and the year
ended December 31, 1995. These consolidated financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the consolidated financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the consolidated financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of Famous
Dave's of America, Inc. and Subsidiary as of December 31, 1995 and the results
of their operations and their cash flows for the period from March 14, 1994
(inception) to December 31, 1994 and the year ended December 31, 1995 in
conformity with generally accepted accounting principles.
LUND KOEHLER COX & COMPANY, PLLP
Minneapolis, Minnesota
August 2, 1996
F-2
<PAGE> 36
FAMOUS DAVE'S OF AMERICA, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
JUNE 30,
1996
DECEMBER 31, -----------
1995
------------ (UNAUDITED)
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents.......................................... $ 100,297 $ 252,137
Inventories........................................................ 10,921 53,049
Prepaids and other current assets.................................. 69,176 409,409
---------- ----------
Total current assets............................................ 180,394 714,595
---------- ----------
PROPERTY, EQUIPMENT AND LEASEHOLD IMPROVEMENTS, NET.................. 1,203,265 1,682,654
---------- ----------
OTHER ASSETS:
Construction in progress........................................... 73,487 995,964
Prepaid equity issuance costs...................................... 0 82,324
Pre-opening expenses, net of accumulated amortization of $3,081.... 0 35,987
---------- ----------
Total other assets.............................................. 73,487 1,114,275
---------- ----------
$1,457,146 $ 3,511,524
========== ==========
LIABILITIES AND STOCKHOLDER'S EQUITY
CURRENT LIABILITIES:
Note payable -- bank............................................... $ 0 $ 1,000,000
Mortgage note payable -- bank...................................... 347,823 0
Note payable -- stockholder........................................ 276,046 359,349
Current portion of capital lease obligation........................ 0 50,224
Accounts payable................................................... 109,974 1,312,154
Accrued rent -- S&D Land Holdings, Inc. (related party)............ 0 82,729
Accrued interest -- stockholder.................................... 0 22,492
Accrued payroll -- stockholder..................................... 0 32,527
Accrued payroll and related withholdings........................... 13,412 42,474
Other current liabilities.......................................... 16,081 51,986
---------- ----------
Total current liabilities....................................... 763,336 2,953,935
CAPITAL LEASE OBLIGATION, NET OF CURRENT PORTION..................... 0 251,981
---------- ----------
Total liabilities............................................... 763,336 3,205,916
---------- ----------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDER'S EQUITY:
Common stock, $.01 par value, 100,000,000 shares authorized,
2,000,000 shares issued and outstanding......................... 20,000 20,000
Additional paid-in capital......................................... 980,000 980,000
Accumulated deficit................................................ (306,190) (694,392)
---------- ----------
Total stockholder's equity...................................... 693,810 305,608
---------- ----------
$1,457,146 $ 3,511,524
========== ==========
</TABLE>
See accompanying notes to consolidated financial statements.
F-3
<PAGE> 37
FAMOUS DAVE'S OF AMERICA, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
TWENTY-SIX WEEKS ENDED
MARCH 14, 1994 ------------------------
(INCEPTION) TO YEAR ENDED JUNE 30, JUNE 30,
DECEMBER 31, DECEMBER 31, 1995 1996
1994 1995 ---------- ----------
-------------- ------------- (UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C>
SALES:
Restaurant............................... $ 0 $ 481,510 $ 23,601 $1,001,055
Retail................................... 0 0 0 14,801
---------- ---------- ---------- ----------
Total sales........................... 0 481,510 23,601 1,015,856
---------- ---------- ---------- ----------
COSTS AND EXPENSES:
Food and beverage costs -- restaurant.... 0 169,789 13,278 326,451
Cost of sales -- retail.................. 0 0 0 10,149
Restaurant operating expenses............ 0 302,217 45,991 391,232
Depreciation and amortization............ 0 17,009 2,000 36,289
General, administrative and
development........................... 0 332,331 57,040 634,460
---------- ---------- ---------- ----------
Total costs and expenses.............. 0 821,346 118,309 1,398,581
---------- ---------- ---------- ----------
Loss from operations.................. 0 (339,836) (94,708) (382,725)
---------- ---------- ---------- ----------
OTHER INCOME (EXPENSE):
Royalty income -- related party.......... 0 33,646 0 17,015
Interest expense......................... 0 0 0 (22,492)
---------- ---------- ---------- ----------
Total other income (expense).......... 0 33,646 0 (5,477)
---------- ---------- ---------- ----------
NET LOSS................................... $ 0 $ (306,190) $ (94,708) $ (388,202)
========== ========== ========== ==========
PROFORMA DATA -- UNAUDITED (SEE NOTE 9)
Historical net loss...................... $ 0 $ (306,190) $ (94,708) $ (388,202)
Proforma provision for income taxes...... 0 0 0 0
---------- ---------- ---------- ----------
Proforma net loss........................ $ 0 $ (306,190) $ (94,708) $ (388,202)
========== ========== ========== ==========
Proforma net loss per common share....... $ 0.00 $ (0.14) $ (0.04) $ (0.18)
========== ========== ========== ==========
Shares used in per share calculations.... 2,135,417 2,135,417 2,135,417 2,135,417
========== ========== ========== ==========
</TABLE>
See accompanying notes to consolidated financial statements.
F-4
<PAGE> 38
FAMOUS DAVE'S OF AMERICA, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF STOCKHOLDER'S EQUITY
<TABLE>
<CAPTION>
COMMON STOCK ADDITIONAL STOCK
------------------- PAID-IN SUBSCRIPTION ACCUMULATED
SHARES AMOUNT CAPITAL RECEIVABLE DEFICIT TOTAL
--------- ------- ---------- ------------ ----------- ---------
<S> <C> <C> <C> <C> <C> <C>
BALANCE -- MARCH 14, 1994
(INCEPTION)......... 0 $ 0 $ 0 $ 0 $ 0 $ 0
Issuance of common stock for
$.50 per share............. 2,000,000 20,000 980,000 (1,000,000) -- 0
Payments received on stock
subscription............... -- -- -- 425,270 -- 425,270
Net loss...................... -- -- -- -- 0 0
--------- ------- -------- ----------- --------- ---------
BALANCE -- DECEMBER 31, 1994.... 2,000,000 20,000 980,000 (574,730) 0 425,270
Payments received on stock
subscription............... -- -- -- 574,730 -- 574,730
Net loss...................... -- -- -- -- (306,190) (306,190)
--------- ------- -------- ----------- --------- ---------
BALANCE -- DECEMBER 31, 1995.... 2,000,000 20,000 980,000 0 (306,190) 693,810
Net loss (unaudited).......... -- -- -- -- (388,202) (388,202)
--------- ------- -------- ----------- --------- ---------
BALANCE -- JUNE 30, 1996
(UNAUDITED)......... 2,000,000 $20,000 $ 980,000 $ 0 $(694,392) $ 305,608
========= ======= ======== =========== ========= =========
</TABLE>
See accompanying notes to consolidated financial statements.
F-5
<PAGE> 39
FAMOUS DAVE'S OF AMERICA, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
TWENTY-SIX WEEKS ENDED
MARCH 14, 1994 --------------------------
(INCEPTION) TO YEAR ENDED JUNE 30, JUNE 30,
DECEMBER 31, DECEMBER 31, 1995 1996
1994 1995 ----------- -----------
-------------- ------------ (UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss.................................. $ 0 $ (306,190) $ (94,708) $ (388,202)
Adjustments to reconcile net loss to cash
flows from operating activities:
Depreciation and amortization.......... 0 17,009 2,000 36,289
Changes in working capital items --
Inventories.......................... 0 (10,921) (3,500) (42,128)
Prepaids and other current assets.... (2,742) (66,434) (11,889) (340,233)
Accounts payable..................... 0 109,974 134,652 367,660
Accrued rent -- S&D Land Holdings,
Inc. ............................. 0 0 0 82,729
Accrued interest -- stockholder...... 0 0 0 22,492
Accrued payroll -- stockholder....... 0 0 0 32,527
Accrued payroll and related
withholdings...................... 0 13,412 7,912 29,062
Other current liabilities............ 0 16,081 938 35,905
--------- ---------- --------- -----------
Cash flows from operating
activities...................... (2,742) (227,069) 35,405 (163,899)
--------- ---------- --------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of property, equipment and
leasehold improvements................. (411,905) (808,369) (369,804) (991,415)
Payment of construction in progress....... 0 (73,487) 0 (87,957)
Payment of pre-opening expenses........... 0 0 0 (39,068)
--------- ---------- --------- -----------
Cash flows from investing
activities...................... (411,905) (881,856) (369,804) (1,118,440)
--------- ---------- --------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from note payable -- bank........ 0 0 0 1,000,000
Proceeds from mortgage note payable --
bank................................... 0 375,000 0 0
Payments on mortgage note payable --
bank................................... 0 (27,177) 0 0
Advances on note payable -- stockholder,
net.................................... 0 276,046 0 516,503
Payments received on stock subscription... 425,270 574,730 429,879 0
Prepaid equity issuance costs paid........ 0 0 0 (82,324)
--------- ---------- --------- -----------
Cash flows from financing
activities...................... 425,270 1,198,599 429,879 1,434,179
--------- ---------- --------- -----------
INCREASE IN CASH AND CASH EQUIVALENTS....... 10,623 89,674 95,480 151,840
CASH AND CASH EQUIVALENTS, BEGINNING........ 0 10,623 10,623 100,297
--------- ---------- --------- -----------
CASH AND CASH EQUIVALENTS, ENDING........... $ 10,623 $ 100,297 $ 106,103 $ 252,137
========= ========== ========= ===========
</TABLE>
See accompanying notes to consolidated financial statements.
F-6
<PAGE> 40
FAMOUS DAVE'S OF AMERICA, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1994 AND 1995
(INCLUDING DATA APPLICABLE TO UNAUDITED PERIODS)
(1) NATURE OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES
NATURE OF BUSINESS -- Famous Dave's of America, Inc. (formerly known as
Famous Dave's of Minneapolis, Inc.) (the Company) was incorporated in the State
of Minnesota on March 14, 1994. The Company develops, owns and operates American
roadhouse style barbeque restaurants (the Units) under the name "Famous Dave's
Bar-B-Que Shack". The Company opened its first Unit in the Linden Hills area of
Minneapolis (the Linden Hills Unit) in June 1995. Prior to opening the Linden
Hills Unit, the Company had no revenues and its activities were devoted solely
to development.
The Company opened its second Unit in June 1996 in Roseville, Minnesota, a
Minneapolis/St. Paul suburb and is presently developing three additional Units
in the Minneapolis/St. Paul area.
PRINCIPLES OF CONSOLIDATION -- The consolidated financial statements
include the accounts of Famous Dave's of America, Inc. and its wholly owned
subsidiary Lake & Hennepin BBQ and Blues, Inc. Lake & Hennepin BBQ and Blues,
Inc. had no operating activity through June 30, 1996. All significant
intercompany transactions have been eliminated in consolidation.
FISCAL YEAR -- Beginning January 1, 1996, the Company adopted a 52/53 week
accounting period ending on the Sunday nearest December 31 of each year. Prior
periods using a calendar year end have not been restated for comparative
purposes as the differences are immaterial.
CASH AND CASH EQUIVALENTS -- The Company includes as cash equivalents
certificates of deposit and all other investments with original maturities of
three months or less which are readily convertible into known amounts of cash.
INVENTORIES -- Inventories are recorded at the lower of cost (first-in,
first-out) or market value.
DEPRECIATION -- Property, equipment and leasehold improvements are recorded
at cost. Improvements are capitalized while repair and maintenance costs are
charged to operations when incurred. Furniture, fixtures and equipment are
depreciated using the straight-line method over their estimated useful lives of
five to seven years. Leasehold improvements are amortized using the
straight-line method over the shorter of their estimated useful lives or the
lease term including option periods.
PREPAID EQUITY ISSUANCE COSTS -- Direct costs of obtaining equity capital
by issuing stock are deducted from the related proceeds, and the net amount is
recorded as contributed stockholders' equity. Costs paid or incurred prior to
the completion of an equity sale are recorded as a prepaid asset until the
completion of the equity offering.
PRE-OPENING EXPENSES -- It is the Company's policy to capitalize the direct
and incremental costs associated with opening a new Unit which consist primarily
of hiring and training the initial workforce and other direct costs. These costs
are amortized over the first twelve months of the Unit's operations if the
recoverability of such costs can be reasonably assured. Expenses incurred prior
to opening the Company's first Unit were charged to operations when incurred due
to the developmental nature of the Unit.
MUSIC PRODUCTION COSTS -- In accordance with Financial Accounting Standards
Board Statement No. 50 "Financial Reporting in the Record and Music Industry",
the Company has expensed all amounts related to music production costs in the
period incurred.
RIB PROMOTIONAL ACTIVITY -- The Company incurs expenses for participation
in rib festivals and other events and records these expenses in the period
incurred net of any related revenues generated by the activity.
INCOME TAXES -- Through March 3, 1996 the Company, with the consent of its
sole stockholder, had elected under the Internal Revenue Code to be an S
Corporation. In lieu of corporation income taxes, a
F-7
<PAGE> 41
FAMOUS DAVE'S OF AMERICA, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
stockholder of an S Corporation is taxed on his proportionate share of the
company's taxable income. See Note 9.
RECENTLY ISSUED ACCOUNTING STANDARD -- During fiscal year 1996 the Company
adopted Financial Accounting Standards Board Statement No. 121 "Accounting for
the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of"
(Statement 121). Statement 121 establishes accounting standards for the
recognition and measurement of impairment of long-lived assets, certain
identifiable intangibles, and goodwill either to be held or disposed of. The
adoption of Statement 121 did not have a material impact on the Company's
financial position or results of operations.
MANAGEMENT'S USE OF ESTIMATES -- The preparation of financial statements in
conformity with generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
NET LOSS PER COMMON SHARE -- Net loss per common share is computed by
dividing net loss by the weighted average number of common shares outstanding
and dilutive common equivalent shares assumed to be outstanding during each
period. Common equivalent shares consist of dilutive options to purchase common
stock. However, pursuant to certain rules of the Securities and Exchange
Commission, the calculation also includes equity securities, including options
and warrants, issued within one year of an initial public offering with an issue
price less than the initial public offering price, even if the effect is
anti-dilutive. The treasury stock method was used in determining the dilutive
effect of such issuances.
(2) INVENTORIES
Inventories consisted of the following at:
<TABLE>
<CAPTION>
DECEMBER 31, JUNE 30,
1995 1996
------------- ---------
<S> <C> <C>
Food and beverage....................................... $ 4,950 $ 19,279
Retail goods............................................ 5,971 33,770
------- -------
$10,921 $ 53,049
======= =======
</TABLE>
(3) PROPERTY, EQUIPMENT AND LEASEHOLD IMPROVEMENTS
Property, equipment and leasehold improvements consisted of the following
at:
<TABLE>
<CAPTION>
DECEMBER 31, JUNE 30,
1995 1996
------------- ----------
<S> <C> <C>
Land, buildings and improvements...................... $ 1,066,447 $1,008,095
Furniture, fixtures and equipment..................... 153,827 584,751
Portable kitchen equipment............................ 0 136,141
Less: accumulated depreciation........................ (17,009) (46,333)
---------- ----------
$ 1,203,265 $1,682,654
========== ==========
</TABLE>
F-8
<PAGE> 42
FAMOUS DAVE'S OF AMERICA, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
(4) CONSTRUCTION IN PROGRESS
Construction in progress consists of direct and indirect costs related to
the Company's uncompleted development of three additional Units in the
Minneapolis/St. Paul area. Total costs incurred were $73,487 and $995,964
(including capitalized interest of $9,067 and $9,067) as of December 31, 1995
and June 30, 1996.
(5) NOTES PAYABLE
NOTE PAYABLE -- BANK -- The Company has a $1,000,000 revolving note due
June 26, 1997, accruing interest at the prime rate (effective rate of 8.25%),
and secured by all the assets of the Company and the personal guaranty of the
sole stockholder. The balance outstanding at June 30, 1996 was $1,000,000.
MORTGAGE NOTE PAYABLE -- BANK -- The Company had a mortgage note maturing
September 1996, accruing interest at 1% over the prime rate (effective rate of
9.75%), secured by a real estate mortgage on the site of its proposed St. Paul,
Minnesota Unit. The balance outstanding at December 31, 1995 was $347,823. This
note was assumed by S&D Land Holdings, Inc. on January 1, 1996. See Note 7.
NOTE PAYABLE -- STOCKHOLDER -- The Company has a $2,000,000 revolving note
with its sole stockholder. The note bears interest at 8%, is unsecured and is
due on demand. Outstanding balances on the note were $276,046 and $359,349 at
December 31, 1995 and June 30, 1996.
(6) CAPITAL LEASE OBLIGATION
The Company leases certain equipment under an agreement that expires June
2001. Interest is provided for at a rate of 11%. The obligation is secured by
the equipment under lease. Prior to signing the lease, the Company made deposits
for this equipment of approximately $156,500 that will be refunded to the
Company by the lessor. In addition, the Company has made, and will be reimbursed
by the lessor for, deposits of $100,000 for equipment to be leased under pending
lease commitments.
Future minimum lease payments for the years ending December 31 are as
follows:
<TABLE>
<S> <C>
1996............................................................... $ 39,130
1997............................................................... 78,259
1998............................................................... 78,259
1999............................................................... 78,259
2000............................................................... 78,259
Thereafter......................................................... 39,129
--------
Total.............................................................. 391,295
Less: amount representing interest................................. (89,090)
--------
Present value of future minimum lease payments..................... 302,205
Less: current portion.............................................. (25,840)
--------
Obligation under capital lease, net of current portion............. $276,365
========
</TABLE>
(7) RELATED PARTY TRANSACTIONS
S&D LAND HOLDINGS, INC. -- On January 1, 1996, the Company transferred the
real estate, excluding improvements, of its Linden Hills Unit and the site of a
proposed Unit in St. Paul, Minnesota to its sole stockholder in exchange for
amounts due to the stockholder and assumption of bank debt (see Note 5) totaling
$781,023. The Company believes the exchange prices approximated the fair market
values of the real estate exchanged. The stockholder concurrently transferred
the real estate to S&D Land Holdings, Inc. (S&D), a company wholly owned by the
stockholder, and entered into leases with the Company for the real estate (see
Note 11). At June 30, 1996, the Company owed S&D $82,729 for rent through June
30, 1996.
F-9
<PAGE> 43
FAMOUS DAVE'S OF AMERICA, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
GRAND PINES RESORTS, INC. -- Grand Pines Resorts, Inc. (Grand Pines), is a
company wholly owned by the sole stockholder of the Company. The Company charges
Grand Pines a royalty of 4% of its food sales. Royalty income was $33,646 and
$17,015 for the year ended December 31, 1995 and the twenty-six weeks ended June
30, 1996. The Company also provides certain management services to Grand Pines
for 3% (4% in 1995) of its food sales. Management services income is netted with
general, administrative and development expenses in the Company's consolidated
statements of operations and was $33,646 and $12,761 for the year ended December
31, 1995 and the twenty-six weeks ended June 30, 1996.
(8) STOCKHOLDER'S EQUITY
STOCK SPLIT -- On June 11, 1996, the Company declared a 2,000-for-1 stock
split. The stock split has been retroactively reflected in the accompanying
consolidated financial statements.
STOCK OPTION PLAN -- The Company adopted a Stock Option and Compensation
Plan (the "Plan") in 1995, pursuant to which options and other awards to acquire
an aggregate of 700,000 shares of the Company's common stock may be granted.
Stock options, stock appreciation rights, restricted stock, other stock and cash
awards may be granted under the Plan. In general, options vest over a period of
five years and expire ten years from the date of grant.
Stock option transactions during 1995 and 1996 were as follows:
<TABLE>
<CAPTION>
SHARES PRICE PER SHARE
------- ---------------
<S> <C> <C>
Outstanding at December 31, 1994....................... 0 $ 0
Granted.............................................. 150,000 1.00
Canceled............................................. 0 0
------- ----------
Outstanding at December 31, 1995....................... 150,000 1.00
Granted.............................................. 25,000 3.50
Canceled............................................. 0 0
------- ----------
Outstanding at June 30, 1996........................... 175,000 $ 1.00 - 3.50
======= ==========
</TABLE>
(9) INCOME TAXES -- UNAUDITED PROFORMA DATA
The Company was an S Corporation through March 3, 1996. Accordingly, losses
incurred through March 3, 1996 have been recognized by the Company's sole
stockholder.
The unaudited proforma data in the accompanying consolidated financial
statements accounts for income taxes as if the Company had been subject to
federal and state income taxes at regular marginal corporate tax rates. The
Company generated net losses for both financial reporting and income tax
purposes.
From March 4, 1996 through June 30, 1996 the Company generated a net
operating loss of approximately $200,000 which, if not used, will expire in
2011. Future changes in the ownership of the Company may place limitations on
the use of this net operating loss carryforward. The Company has recorded a full
valuation allowance against its deferred tax asset due to the uncertainty of
realizing the related benefit.
F-10
<PAGE> 44
FAMOUS DAVE'S OF AMERICA, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
(10) SUPPLEMENTAL CASH FLOWS INFORMATION
<TABLE>
<CAPTION>
DECEMBER 31, JUNE 30,
1995 1996
------------ --------
<S> <C> <C>
Cash paid for interest................................................ $9,067 $ 0
====== ========
Non cash investing and financing activities:
Equipment purchased under capital lease obligation.................... $ 0 $302,205
====== ========
Real estate exchanged to retire debt.................................. $ 0 $781,023
====== ========
Construction purchased with accounts payable.......................... $ 0 $834,520
====== ========
</TABLE>
(11) COMMITMENTS AND CONTINGENCIES
OPERATING LEASES -- The Company has entered into various operating leases
as follows:
LEASES WITH S&D LAND HOLDINGS, INC. -- The Company leases the real estate
for certain of its current or proposed Units from S&D Land Holdings, Inc., a
company wholly owned by the Company's sole stockholder. Each lease generally has
a ten-year term with two five-year options to extend and requires the payment of
base rent plus the payment of real estate taxes and operating expenses as
follows:
Linden Hills Unit -- Base rent of $48,800 per year payable monthly,
adjusted annually for inflation. Expires in 2005 with two five-year
extensions available.
Roseville Unit -- Base rent of $82,200 per year payable monthly,
adjusted annually for inflation. Expires in 2002 with one five-year
extension available.
Proposed St. Paul, Minnesota Unit -- Base rent of $44,900 per year
payable monthly, adjusted annually for inflation. Expires in 2005 with two
five-year extensions available.
Proposed Minnetonka, Minnesota Unit -- Base rent of $124,129 per year
payable monthly, adjusted annually for inflation. Expires in 2005 with two
five-year extensions available.
CORPORATE OFFICE -- The Company has a lease for its corporate office space
that expires in 1998. Base rent is $3,951 per month. The Company also is
required to pay its pro rata share of real estate taxes and operating expenses.
PROPOSED MINNEAPOLIS, MINNESOTA UNIT -- The Company leases space for its
proposed Minneapolis, Minnesota Unit under a lease that expires in 2011, but may
be terminated at the Company's election after the first five years. The lease
requires initial base rent of $159,516 per year payable monthly, plus a
percentage rent of 5% of annual gross sales in excess of $3,190,320, payable
annually. The Company has the right to extend the term for two five-year
periods. The Company may receive approximately 18 months of base rent credit and
certain other incentives if it completes its improvements and opens for business
on or before October 1, 1996. In addition to the base and percentage rents, the
lease requires the Company to pay real estate taxes and operating expenses.
F-11
<PAGE> 45
FAMOUS DAVE'S OF AMERICA, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
Future minimum rental payments (excluding percentage rents) for the
operating leases described above are as follows for the years ending December
31:
<TABLE>
<S> <C>
1996.............................................................. $ 395,591
1997.............................................................. 506,957
1998.............................................................. 491,153
1999.............................................................. 459,545
2000.............................................................. 459,545
Thereafter........................................................ 1,367,553
----------
Total............................................................. $3,680,344
==========
</TABLE>
EMPLOYMENT AGREEMENTS -- The Company has employment agreements with three
of its officers. The agreements require minimum annual compensation of $100,000
to $125,000 and have terms of two to three years. All of the contracts require
at least six month severance payments with resulting two year non-competes with
one of the contracts requiring up to twelve months severance.
(12) SUBSEQUENT EVENTS (UNAUDITED)
PRIVATE PLACEMENT OF COMMON STOCK -- In July 1996, the Company sold
1,356,250 shares of its common stock in a private placement for $3.50 per share,
and received net proceeds of approximately $4,200,000. The Company has used and
plans to use the net proceeds from this private placement of common stock to
complete the development of its Units and for working capital.
STOCK OPTIONS -- Subsequent to June 30, 1996, the Company granted options
to acquire 167,500 shares of common stock at exercise prices ranging from $3.50
to $4.33 per share and cancelled 4,500 options to acquire shares of common stock
at $3.50 per share.
F-12
<PAGE> 46
[Narrative description of photographs that appear on the inside back cover page
of prospectus]
Picture #1 -- A photograph of the interior of the Company's Linden Hills Unit,
with several oilcloth-covered tables in the foreground and the
counter where customers place their meal orders in the background.
The order counter features a tin roof, brightly painted timbers
and signs highlighting various menu items, shelves containing
bottles of Famous Dave's BBQ Sauce and items of rustic Americana,
and self-serve beverage fountains. Caption: "'May you always be
surrounded by good friends and great barbeque.'(SM) -- Famous
Dave."
Picture #2 -- One of the restaurant's cooks holds a large platter of barbecued
ribs while standing behind a large table laden with platters of
food served at the Company's restaurants. Caption: "BBQ platters,
sandwiches, and desserts."
Picture #3 -- A photograph of diners seated around a table, on which is
displayed the Company's "garbage can lid" entree. Caption: "St.
Louis style ribs are a specialty."
Picture #4 -- A photograph of diners seated around a table in the process of
eating their meal. Caption: "Plenty of sauce, napkins, and
friends."
Picture #5 -- Two of the Company's employees are shown bringing seated diners
their meals. Caption: "Down-home friendly service."
Picture #6 -- Two diners seated at a table are shown having a conversation with
a restaurant employee. Caption: "Like a good ol' backyard
barbeque."
<PAGE> 47
------------------------------------------------------
------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS, AND, IF GIVEN
OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY OR THE UNDERWRITER. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY
ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED
OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO
SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
---------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Prospectus Summary..................... 3
Risk Factors........................... 6
Use of Proceeds........................ 11
Dilution............................... 12
Dividend Policy........................ 12
Capitalization......................... 13
Management's Discussion and Analysis of
Financial Condition and Results of
Operations........................... 14
Business............................... 17
Management............................. 23
Certain Transactions................... 25
Principal Shareholders................. 25
Description of Securities.............. 27
Underwriting........................... 30
Legal Matters.......................... 31
Experts................................ 31
Additional Information................. 31
Index to Consolidated Financial
Statements........................... F-1
</TABLE>
----------------------------
UNTIL , 1996 (25 DAYS AFTER THE DATE OF THE PROSPECTUS), ALL
DEALERS EFFECTING TRANSACTIONS IN THE REGISTERED SECURITIES, WHETHER OR NOT
PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS.
THIS IS IN ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN
ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR
SUBSCRIPTIONS.
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
FAMOUS DAVE'S
OF AMERICA, INC.
FAMOUS DAVE'S LOGO
2,300,000 UNITS
CONSISTING OF 2,300,000 SHARES
OF COMMON STOCK AND 2,300,000
REDEEMABLE CLASS A WARRANTS
------------------------------
PROSPECTUS
------------------------------
RJ STEICHEN & COMPANY LOGO
, 1996
------------------------------------------------------
------------------------------------------------------
<PAGE> 48
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is governed by Minnesota Statutes Chapter 302A. Minnesota
Statutes Section 302A.521 provides that a corporation shall indemnify any person
made or threatened to be made a party to any proceeding by reason of the former
or present official capacity of such person against judgments, penalties, fines,
including, without limitation, excise taxes assessed against such person with
respect to an employee benefit plan, settlements, and reasonable expenses,
including attorney's fees and disbursements, incurred by such person in
connection with the proceeding, if, with respect to the acts or omissions of
such person complained of in the proceeding, such person has not been
indemnified by another organization or employee benefit plan for the same
expenses with respect to the same acts or omissions; acted in good faith;
received no improper personal benefit and Section 302A.255, if applicable, has
been satisfied; in the case of a criminal proceeding, had no reasonable cause to
believe the conduct was unlawful; and in the case of acts or omissions by
persons in their official capacity for the corporation, reasonably believed that
the conduct was in the best interests of the corporation, or in the case of acts
or omissions by persons in their capacity for other organizations, reasonably
believed that the conduct was not opposed to the best interests of the
corporation.
As permitted by Section 302A.251 of the Minnesota Statutes, the Articles of
Incorporation of the Company provide that a director shall have no personal
liability to the Company and its shareholders for breach of his fiduciary duty
as a director, to the fullest extent permitted by law.
The Underwriting Agreement contains provisions under which the small
business issuer on the one hand, and the Underwriter, on the other hand, have
agreed to indemnify each other (including officers and directors of the small
business issuer and the Underwriter and any person who may be deemed to control
the small business issuer or the Underwriter) against certain liabilities,
including liabilities under the Securities Act of 1933, as amended.
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the issuance and distribution of
the Units registered hereby, other than underwriting discounts and fees, are set
forth in the following table:
<TABLE>
<S> <C>
SEC registration fee............................................... $ 13,681
NASD filing fee.................................................... 6,000
Nasdaq listing fee................................................. 8,500
Legal fees and expenses............................................ 80,000
Accounting fees and expenses....................................... 40,000
Blue Sky fees and expenses......................................... 20,000
Transfer agent fees and expenses................................... 1,000
Printing and engraving expenses.................................... 40,000
Miscellaneous...................................................... 10,819
--------
Total............................................................ $220,000
========
</TABLE>
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES.
In connection with the formation of the Company in March, 1994, the Company
issued 2,000,000 shares of Common Stock to David W. Anderson, Chairman and Chief
Executive Officer, for an aggregate of $1,000,000. The Company believes that
such sale of securities was exempt from registration pursuant to Section 4(2) of
the Securities Act as an isolated sale to an "Accredited Investor" as defined in
Regulation D of the Securities Act of 1933, as amended (the "Securities Act").
In connection with additional capitalization of the Company on July 29, 1996,
the Company sold and issued an aggregate of 1,356,250 shares of Common Stock to
certain "Accredited Investors" for a total aggregate consideration of
$4,746,875. R.J. Steichen & Co., Inc., the Underwriter, was involved in such
offering and received Agent's commissions totaling $427,219
II-1
<PAGE> 49
pursuant to such offering. The Company believes that each and every such sale
and issuance of such securities was made to an "Accredited Investor" on the
basis of representations made in writing to the Company by each purchaser prior
to such sale and thus was exempt from registration pursuant to Section 4(2) of
the Securities Act and Rule 506 promulgated thereunder.
ITEM 27. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- ---------------------------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement*
1.2 Form of Underwriter's Warrant*
3.1 Articles of Incorporation*
3.2 By-laws*
3.3 Amendment to Articles of Incorporation dated May 31, 1996 increasing the number
of authorized shares**
4 Form of Warrant Agreement**
5 Opinion of Maslon Edelman Borman & Brand, a Professional Limited Liability
Partnership*
10.1 Lease Agreement by and between S&D Land Holdings, Inc., and Famous Dave's of
Minneapolis, Inc. as of January 1, 1996 (Linden Hills)*
10.2 Lease Agreement by and between S&D Land Holdings, Inc., and Famous Dave's of
Minneapolis, Inc. as of January 1, 1996 (Highland Park)*
10.3 Lease Agreement by and between S&D Land Holdings, Inc., and Famous Dave's of
Minneapolis, Inc. as of January 15, 1996 (Minnetonka)*
10.4 Sublease Agreement by and between S&D Land Holdings, Inc., and Famous Dave's of
Minneapolis, Inc. as of January 1, 1996 (Roseville)*
10.5 Lease Agreement by and between Calhoun Square Associates Limited Partnership and
Lake & Hennepin BBQ and Blues, Inc. dated January 4, 1996, as amended on March
26, 1996 and as further amended on July 15, 1996 (Calhoun Square)**
10.6 Assignment and Assumption of Lease Agreement by and between Innovative Gaming,
Inc., Carlson Real Estate Company, and Famous Dave's of America, Inc. as of May
13, 1996 and Side Agreement dated May 16, 1996 between Innovative Gaming, Inc.
and Famous Dave's of America, Inc. (corporate headquarters)*
10.7 Company's 1995 Stock Option and Compensation Plan*
10.8 Employment Agreement between the Company and David W. Anderson dated as of March
4, 1996*
10.9 Employment Agreement between the Company and William L. Timm dated as of March 4,
1996*
10.10 Employment Agreement between the Company and Mark A. Payne dated as of August 12,
1996*
10.11 Trademark License Agreement between Famous Dave's of America, Inc. and Grand
Pines Resorts, Inc.*
10.12 Management Agreement dated January 1, 1996 between Famous Dave's Enterprises,
Inc. and Famous Dave's of Minneapolis, Inc.*
10.13 Amendment dated August 12, 1996 to the Company's 1995 Stock Option and
Compensation Plan**
24.1 Consent of Maslon Edelman Borman & Brand, a Professional Limited Liability
Partnership (included in Exhibit 5)**
24.2 Consent of Lund Koehler Cox & Company, PLLP**
25 Powers of Attorney*
27.1 Financial Data Schedule**
</TABLE>
- -------------------------
* Previously filed.
** Filed herewith.
II-2
<PAGE> 50
ITEM 28. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the small business
issuer pursuant to the foregoing provisions or otherwise, the small business
issuer 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 small business issuer of
expenses incurred or paid by a director, officer or controlling person of the
small business issuer 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 small business issuer 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.
The undersigned small business issuer hereby undertakes that it will:
(1) 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.
(2) For determining any liability under the Securities Act, treat the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the small business issuer under Rule 424(b)(1) or
(4) or Rule 497(h) under the Securities Act as part of this registration
statement as of the time the Commission declared it effective.
(3) For determining any liability under the Securities Act, treat each
post-effective amendment that contains a form of prospectus as a new
registration statement for the securities offered in the registration
statement, and that offering of the securities at that time as the initial
bona fide offering of those securities.
The small business issuer hereby undertakes to provide to the Underwriter
at the closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the Underwriter to
permit prompt delivery to each purchaser.
II-3
<PAGE> 51
SIGNATURES
In accordance with 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 SB-2 and has authorized this Amendment
No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Minneapolis, State of
Minnesota, on October 1, 1996.
FAMOUS DAVE'S OF AMERICA, INC.
By /s/ DAVID W. ANDERSON
------------------------------------
David W. Anderson
Chairman of the Board and
Chief Executive Officer
In accordance with the requirements of the Securities Act of 1933, this
Amendment No. 1 to the Registration Statement has been signed by the following
persons in the capacities and on the dates stated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------- ------------------------------------ -------------------
<C> <S> <C>
/s/ DAVID W. ANDERSON Chairman of the Board and October 1, 1996
- ----------------------------------- Chief Executive Officer
David W. Anderson
/s/ WILLIAM L. TIMM President October 1, 1996
- -----------------------------------
William L. Timm
/s/ MARK A. PAYNE Vice President, Finance, October 1, 1996
- ----------------------------------- Chief Financial Officer, Secretary
Mark A. Payne and Treasurer
/s/ THOMAS J. BROSIG Director October 1, 1996
- -----------------------------------
Thomas J. Brosig
/s/ MARTIN J. O'DOWD Director October 1, 1996
- -----------------------------------
Martin J. O'Dowd
</TABLE>
II-4
<PAGE> 52
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
PAGE
EXHIBIT NO. DESCRIPTION OF EXHIBIT NUMBER
- ----------- ------------------------------------------------------------------------- ------
<C> <S> <C>
1.1 Form of Underwriting Agreement*
1.2 Form of Underwriter's Warrant*
3.1 Articles of Incorporation*
3.2 By-laws*
3.3 Amendment to Articles of Incorporation dated May 31, 1996 increasing the
number of authorized shares**
4 Form of Warrant Agreement**
5 Opinion of Maslon Edelman Borman & Brand, a Professional Limited
Liability Partnership**
10.1 Lease Agreement by and between S&D Land Holdings, Inc., and Famous Dave's
of Minneapolis, Inc. as of January 1, 1996 (Linden Hills)*
10.2 Lease Agreement by and between S&D Land Holdings, Inc., and Famous Dave's
of Minneapolis, Inc. as of January 1, 1996 (Highland Park)*
10.3 Lease Agreement by and between S&D Land Holdings, Inc., and Famous Dave's
of Minneapolis, Inc. as of January 15, 1996 (Minnetonka)*
10.4 Sublease Agreement by and between S&D Land Holdings, Inc., and Famous
Dave's of Minneapolis, Inc. as of January 1, 1996 (Roseville)*
10.5 Lease Agreement by and between Calhoun Square Associates Limited
Partnership and Lake & Hennepin BBQ and Blues, Inc. dated January 4,
1996, as amended on March 26, 1996 and as further amended on July 15,
1996 (Calhoun Square)**
10.6 Assignment and Assumption of Lease Agreement by and between Innovative
Gaming, Inc., Carlson Real Estate Company, and Famous Dave's of America,
Inc. as of May 13, 1996 and Side Agreement dated May 16, 1996 between
Innovative Gaming, Inc. and Famous Dave's of America, Inc. (corporate
headquarters)*
10.7 Company's 1995 Stock Option and Compensation Plan*
10.8 Employment Agreement between the Company and David W. Anderson dated as
of March 4, 1996*
10.9 Employment Agreement between the Company and William L. Timm dated as of
March 4, 1996*
10.10 Employment Agreement between the Company and Mark A. Payne dated as of
August 12, 1996*
10.11 Trademark License Agreement between Famous Dave's of America, Inc. and
Grand Pines Resorts, Inc.*
10.12 Management Agreement dated January 1, 1996 between Famous Dave's
Enterprises, Inc. and Famous Dave's of Minneapolis, Inc.*
10.13 Amendment dated August 12, 1996 to the Company's 1995 Stock Option and
Compensation Plan**
24.1 Consent of Maslon Edelman Borman & Brand, a Professional Limited
Liability Partnership (included in Exhibit 5)**
24.2 Consent of Lund Koehler Cox & Company, PLLP**
25 Powers of Attorney*
27.1 Financial Data Schedule**
</TABLE>
- -------------------------
* Previously filed.
** Filed herewith.
<PAGE> 1
EXHIBIT 3.3
ARTICLES OF AMENDMENT
OF
FAMOUS DAVE'S OF AMERICA, INC.
The undersigned Chief Executive Officer of Famous Dave's of America,
Inc. (the "Corporation") hereby certifies that the following Articles of
Amendment were adopted by a joint written action of the shareholders and
directors of the Corporation dated May 31, 1996, pursuant to the provisions of
the Minnesota Business Corporation Act.
1. The name of the Corporation is Famous Dave's of America, Inc.
2. Article 3 of the Articles of Incorporation is amended to read
in its entirety as follows:
ARTICLE 3
CAPITAL
A. THE CORPORATION IS AUTHORIZED TO ISSUE ONE HUNDRED MILLION
(100,000,000) SHARES OF CAPITAL STOCK, HAVING A PAR VALUE OF
ONE CENT ($.01) PER SHARE IN THE CASE OF COMMON STOCK, AND
HAVING A PAR VALUE AS DETERMINED BY THE BOARD OF DIRECTORS IN
THE CASE OF PREFERRED STOCK, TO BE HELD, SOLD AND PAID FOR AT
SUCH TIMES AND IN SUCH MANNER AS THE BOARD OF DIRECTORS MAY
FROM TIME TO TIME DETERMINE IN ACCORDANCE WITH THE LAWS OF THE
STATE OF MINNESOTA.
B. IN ADDITION TO ANY AND ALL POWERS CONFERRED UPON THE BOARD OF
DIRECTORS BY THE LAWS OF THE STATE OF MINNESOTA, THE BOARD OF
DIRECTORS SHALL HAVE THE AUTHORITY TO ESTABLISH BY RESOLUTION
MORE THAN ONE CLASS OR SERIES OF SHARES, EITHER PREFERRED OR
COMMON, AND TO FIX THE RELATIVE RIGHTS, RESTRICTIONS AND
PREFERENCES OF ANY SUCH DIFFERENT CLASSES OR SERIES, AND THE
AUTHORITY TO ISSUE SHARES OF A CLASS OR SERIES TO ANOTHER
CLASS OR SERIES TO EFFECTUATE SHARE DIVIDENDS, SPLITS OR
CONVERSION OF THE CORPORATION'S OUTSTANDING SHARES.
C. THE BOARD OF DIRECTORS SHALL ALSO HAVE THE AUTHORITY TO ISSUE
RIGHTS TO CONVERT ANY OF THE CORPORATION'S SECURITIES INTO
SHARES OF STOCK OF ANY CLASS OR CLASSES, THE AUTHORITY TO
ISSUE OPTIONS TO PURCHASE OR SUBSCRIBE FOR SHARES OF STOCK OF
ANY CLASS OR CLASSES, AND THE AUTHORITY TO ISSUE SHARE
PURCHASE OR SUBSCRIPTION WARRANTS OR ANY OTHER EVIDENCE OF
SUCH OPTION RIGHTS WHICH SET FORTH THE TERMS, PROVISIONS AND
CONDITIONS THEREOF, INCLUDING THE PRICE OR PRICES AT WHICH
SUCH SHARES MAY BE SUBSCRIBED FOR OR PURCHASED. SUCH OPTIONS,
WARRANTS AND RIGHTS, MAY BE TRANSFERABLE OR NONTRANSFERABLE
AND SEPARABLE OR INSEPARABLE FROM OTHER SECURITIES OF THE
CORPORATION. THE BOARD OF DIRECTORS IS AUTHORIZED TO FIX THE
TERMS, PROVISIONS AND CONDITIONS OF SUCH OPTIONS, WARRANTS AND
RIGHTS, INCLUDING THE CONVERSION BASIS OR BASES AND THE OPTION
PRICE OR PRICES AT WHICH SHARES MAY BE SUBSCRIBED FOR OR
PURCHASED.
<PAGE> 2
3. This amendment has been adopted pursuant to Chapter 302A of
the Minnesota Business Corporation Act.
IN WITNESS WHEREOF the undersigned has hereunto set his hand this 31st
day of May, 1996.
FAMOUS DAVE'S OF AMERICA, INC.
By
------------------------------------------
David W. Anderson, Chief Executive Officer
75619
<PAGE> 1
EXHIBIT 4
WARRANT AGREEMENT
WARRANT AGREEMENT dated as of October ___, 1996 by and between Famous
Dave's of America, Inc., a Minnesota corporation (the "Company"), and Firstar
Trust Company, as Warrant Agent (the "Warrant Agent").
A. The Company proposes to issue up to 2,300,000 Redeemable Class A
Warrants (the "Warrants") evidencing the right to purchase an aggregate of up
to 2,300,000 authorized but previously unissued shares of Common Stock, $.01
par value per share, of the Company (the "Common Stock"). The Warrants would
be issued in connection with the issuance by the Company of up to 2,300,000
Units, each Unit consisting of one share of Common Stock and one Warrant, in
connection with the Company's Registration Statement on Form SB-2.
B. The Company desires the Warrant Agent to act on behalf of the Company,
and the Warrant Agent desires so to act, in connection with the issuance,
registration, transfer, exchange and exercise of the Warrants.
NOW THEREFORE, it is agreed as follows:
ARTICLE I.
APPOINTMENT OF WARRANT AGENT; ISSUANCE,
FORM AND EXECUTION OF WARRANT CERTIFICATES
Section 1.1. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company, and the Warrant Agent hereby
accepts the agency established herein and agrees to perform its agency duties
in accordance with the terms and conditions of this Warrant Agreement.
Section 1.2. Warrant Certificates. The Company shall execute and deliver
to the Warrant Agent certificates which the Company has authorized to represent
the Warrants ("Warrant Certificates"). The Warrant Certificates shall be
substantially as set forth in Exhibit A hereto and may have such legends,
summaries or endorsements printed, lithographed or engraved thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of
this Warrant Agreement, or as may be required to comply with any law or with
any rule or regulation relating to listing of the Warrants on the NASDAQ stock
market, including the SmallCap Market System, or on any stock exchange or to
conform to usage. The Warrant Certificates shall be dated with the date of
their issuance.
Section 1.3. Execution of Warrant Certificates. The Warrant Certificates
shall be executed on behalf of the Company by a duly authorized officer of the
Company, either manually or by facsimile signature printed thereon. The
Warrant Certificates shall be manually countersigned by the Warrant Agent and
shall not be valid for any purpose unless so countersigned. Any Warrant
Certificate may be signed on behalf of the Company by the person who at the
actual date of the signing of such Warrant Certificate shall have been the
proper officer
<PAGE> 2
of the Company, although at the date of issuance of such Warrant Certificate
any such person has ceased to be such officer of the Company.
ARTICLE II.
EXERCISE OF WARRANTS
Section 2.1. Exercise. Any or all of the Warrants represented by each
Warrant Certificate may be exercised by the holder thereof on or before 5:00
p.m., Minneapolis time, on October ___, 2001, unless extended by the Company,
by surrender of the Warrant Certificate with the Purchase Form, which is
printed on the reverse thereof (or a reasonable facsimile thereof) duly
executed by such holder, to the Warrant Agent at its principal office in
Minneapolis, Minnesota, accompanied by payment, in cash or by certified or
official bank check payable to the order of the Company, in an amount equal to
the product of the number of shares of Common Stock issuable upon exercise of
the Warrant represented by such Warrant Certificate, as adjusted pursuant to
the provisions of Article III hereof, multiplied by the exercise price of
$8.50, as adjusted pursuant to the provisions of Article III hereof (such price
as so adjusted from time to time being herein called the "Exercise Price"), and
such holder shall be entitled to receive such number of fully paid and
nonassessable shares of Common Stock, as so adjusted, at the time of such
exercise.
Section 2.2. Time of Exercise. Each exercise of Warrants shall be deemed
to have been effective immediately prior to the close of business on the
business day on which the Warrant Certificate relating to such Warrants shall
have been surrendered to the Warrant Agent as provided in Section 2.1, and at
such time the person or persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon such exercise as
provided in Section 2.3, shall be deemed to have become the holder or holders
of record thereof.
Section 2.3. Issuance of Shares of Common Stock; No Fractional Shares.
As soon as practicable after the exercise of any Warrant, and in any event
within ten (10) days after receipt by the Warrant Agent of the notice of
exercise under Section 2.1, the Company at its expense (including the payment
by it of any applicable issue taxes) will cause to be issued in the name of and
delivered to the holder thereof or as such holder (upon payment by such holder
of any applicable transfer taxes) may direct,
(a) a certificate or certificates for the number of fully paid and
nonassessable shares of Common Stock to which such holder shall be
entitled upon such exercise plus, in lieu of any fractional share to which
such holder would otherwise be entitled, an amount in cash equal to such
fraction multiplied by the then current value of a share of Common Stock,
such current value to be determined as follows:
(i) if the Common Stock shall be listed or admitted to
unlisted trading privileges on any single national securities
exchange, then such current value shall be computed on the
basis of the last reported sale price of the Common Stock on
such exchange on the last business day prior to the date
2
<PAGE> 3
of the exercise of such Warrant upon which a sale shall have
been effected; or
(ii) if the Common Stock shall not be so listed or
admitted to unlisted trading privileges and bid and asked
prices therefor in the over-the-counter market shall be
reported by NASDAQ, including the SmallCap Market System, then
such current value shall be the last reported sale on the last
business day prior to the date of the exercise of such
Warrant, or, in the event the last reported sale is
unavailable, the average of the closing bid and asked prices
on the last business day prior to the date of the exercise of
such Warrant as so reported; or
(iii) if the Common Stock shall be listed or admitted to
unlisted trading privileges on more than one national
securities exchange or one or more national securities
exchanges and in the over-the-counter market, then such
current value shall, if different as a result of calculation
under the applicable method(s) described above in this
Section, be deemed to be the higher number calculated in
connection therewith; or
(iv) if the Common Stock shall not be so listed or
admitted to unlisted trading privileges and such bid and asked
prices shall not be so reported, then such current value shall
be computed on the basis of the book value of Common Stock as
of the close of business on the last day of the month
immediately preceding the date upon which such Warrant was
exercised, as determined by the Company,
and
(b) in case such exercise includes only part of the Warrants
represented by any Warrant Certificate, a new Warrant Certificate or
Warrant Certificates of like tenor, calling in the aggregate on the face
or faces thereof for the number of shares of Common Stock equal (without
giving effect to any adjustment therein) to the number of such shares
called for on the face of such Warrant Certificate minus the number of
such shares designated by the holder for such exercise as provided in
Section 2.1. Warrants, represented by a properly assigned Warrant
Certificate, may be exercised by a new holder without first having a new
Warrant Certificate issued.
Section 2.4. Extension of Exercise Period; Change of Exercise Price. The
Company may, upon notice given to the Warrant Agent, and without the consent of
the holders of the Warrant Certificates, (i) reduce the Exercise Price during
all or any portion of the originally stated exercise period, or (ii) extend the
period over which the Warrants are exercisable beyond October ___, 2001 and
increase the Exercise Price for any period the Warrant exercise period is
extended. In the case of the extension of the exercise period or a change in
the Exercise Price, the Company must provide the Warrant Agent and the
Warrantholders of record notice of such extension of the exercise period,
specifying, as the case may be, the time to which such exercise period is
3
<PAGE> 4
extended, or specifying the new Exercise Price and the periods for which such
new Exercise Price is in effect, a reasonable time prior to the date such
extension or new Exercise Price is to take effect, such reasonable time to be
commercially reasonable and consistent with applicable securities laws and
regulations.
ARTICLE III.
ANTIDILUTION PROVISIONS
Section 3.1. Adjustment of Exercise Price.
(a) The Exercise Price shall be subject to the following adjustments.
In the event that:
(i) any dividends on any class of stock of the Company
payable in Common Stock or securities convertible into Common
Stock shall be paid by the Company;
(ii) the Company shall subdivide its then outstanding
shares of Common Stock into a greater number of shares; or
(iii) the Company shall combine outstanding shares of
Common Stock, by reclassification or otherwise;
then, in any such event, the Exercise Price in effect immediately prior to
such event shall (until adjusted again pursuant hereto) be adjusted
immediately after such event to a price (calculated to the nearest full
cent) determined by dividing (A) the number of shares of Common Stock
outstanding immediately prior to such event, multiplied by the then
existing Exercise Price, by (B) the total number of shares of Common Stock
outstanding immediately after such event (including the maximum number of
shares of Common Stock issuable in respect of any securities convertible
into Common Stock), and the resulting quotient shall be the adjusted
Exercise Price per share.
(b) No adjustment of the Exercise Price shall be made if the amount
of such adjustments shall be less than no per share, but in such case any
adjustment that would otherwise be required then to be made shall be
carried forward and shall be made at the time and together with the next
subsequent adjustment which, together with any adjustment or adjustments
so carried forward, shall amount to not less than no per share.
Section 3.2. Adjustment of Number of Shares Purchasable on Exercise of
Warrants. Upon each adjustment of the Exercise Price pursuant to Section 3.1,
the registered holder of each Warrant shall thereafter (until another such
adjustment) be entitled to purchase at the adjusted Exercise Price the number
of shares, calculated to the nearest full share, obtained by multiplying the
number of shares specified in such Warrant (as adjusted as a result of all
adjustments in the Exercise Price in effect prior to such adjustment) by the
Exercise Price in effect prior to such adjustment and dividing the product so
obtained by the adjusted Exercise Price.
4
<PAGE> 5
Section 3.3. Notice as to Adjustment. Upon any adjustment of the
Exercise Price and an increase or decrease in the number of shares of Common
Stock purchasable upon the exercise of the Warrants, then, and in each such
case, the Company shall within ten (10) days after the effective date of such
adjustment give written notice thereof, by first class mail, postage prepaid,
addressed to each registered Warrantholder at the address of such Warrantholder
as shown on the books of the Company, which notice shall state the adjusted
Exercise Price and the increased or decreased number of shares purchasable upon
the exercise of the Warrants, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based.
Section 3.4. Effect of Reorganization, Reclassification, Merger, Etc. If
at any time while any Warrant is outstanding there should be any capital
reorganization or reclassification of the capital stock of the Company (other
than the issue of any shares of Common Stock in subdivision of outstanding
shares of Common Stock by reclassification or otherwise and other than a
combination of shares provided for in Section 3.1 hereof) or any consolidation
or merger of the Company with another corporation or any sale, conveyance,
lease or other transfer by the Company of all or substantially all of its
assets to any other corporation, the holder of any Warrant shall, during the
remainder of the period such Warrant is exercisable, be entitled to receive,
upon payment of the Exercise Price, the number of shares of stock or other
securities or property of the Company, or of the successor corporation
resulting from such consolidation or merger, or of the corporation to which the
assets of the Company has been sold, conveyed, leased or otherwise transferred,
as the case may be, to which the Common Stock (and any other securities and
property) of the Company, deliverable upon the exercise of such Warrant, would
have been entitled upon such capital reorganization, reclassification of
capital stock, consolidation, merger, sale, conveyance, lease or other transfer
if such Warrant had been exercised immediately prior to such capital
reorganization, reclassification of capital stock, consolidation, merger, sale,
conveyance, lease or other transfer; and, in any such case, appropriate
adjustment (as determined by the Board of Directors of the Company) shall be
made in the application of the provisions set forth in this Warrant Agreement
with respect to the rights and interests thereafter of the Warrantholders to
the end that the provisions set forth in this Warrant Agreement (including the
adjustment of the Exercise Price and the number of shares issuable upon the
exercise of the Warrants) shall thereafter be applicable, as near as may be
reasonably practicable, in relation to any shares or other property thereafter
deliverable upon the exercise of the Warrants as if the Warrants had been
exercised immediately prior to such capital reorganization, reclassification of
capital stock, such consolidation, merger, sale, conveyance, lease or other
transfer and the Warrantholders had carried out the terms of the exchange as
provided for by such capital reorganization, reclassification, consolidation or
merger. The Company shall not effect any such capital reorganization,
consolidation, merger or transfer unless, upon or prior to the consummation
thereof, the successor corporation or the corporation to which the property of
the Company has been sold, conveyed, leased or otherwise transferred shall
assume by written instrument the obligation to deliver to the holder of each
Warrant such shares of stock, securities, cash or property as in accordance
with the foregoing provisions such holder shall be entitled to purchase.
5
<PAGE> 6
Section 3.5. Prior Notice as to Certain Events. In case at any time:
(a) The Company shall pay any dividend upon its Common Stock payable
in stock or make any distribution (other than cash dividends) to the
holders of its
Common Stock; or
(b) The Company shall offer for subscription pro rata to the holders
of its Common Stock any additional shares of stock of any class or any
other rights; or
(c) There shall be any capital reorganization or reclassification of
the capital stock of the Company, or consolidation or merger of the
Company with, or sale, conveyance, lease or other transfer of all or
substantially all of its assets to, another corporation; or
(d) There shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then in any one or more of such cases, the Company shall give prior written
notice, by first class mail, postage prepaid, addressed to each registered
Warrantholder at the address of such Warrantholder as shown on the books of the
Company, of the date on which (i) the books of the Company shall close or a
record shall be taken for such stock dividend, distribution or subscription
rights or (ii) such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding up shall take place, as the case may
be. Such notice shall also specify the date as of which the holders of the
Common Stock of record shall participate in such dividend, distribution or
subscription rights or shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation, or
winding up, as the case may be. Such written notice shall be given at least
twenty (20) days prior to the action in question and not less than twenty (20)
days prior to the record date or the date on which the Company's transfer books
are closed in respect thereto.
Section 3.6. Certain Obligations of the Company. The Company will not,
by amendment of its articles of incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant Agreement or the Warrant
Certificate, but will at all times in good faith assist in the carrying out of
all such terms. Without limiting the generality of the foregoing, the Company
(a) will take all such action as may be necessary or appropriate in order that
the Company may validly and legally issue fully paid and nonassessable shares
of such stock upon the exercise of all Warrants from time to time outstanding,
and (b) will not (i) transfer all or substantially all of its properties and
assets to any other person or entity, or (ii) consolidate with or merge into
any other entity where the Company is not the continuing or surviving entity,
or (iii) permit any other entity to consolidate with or merge into the Company
where the Company is the continuing or surviving entity but, in connection with
such consolidation or merger, the Common Stock then issuable upon the exercise
of the Warrants shall be changed into or exchanged for shares or other
securities or property of any other entity unless, in any such case, the other
entity acquiring such properties and assets,
6
<PAGE> 7
continuing or surviving after such consolidation or merger or issuing or
distributing such shares or other securities or property, as the case may be,
shall expressly assume in writing and be bound by all the terms of this Warrant
Agreement and the Warrant Certificates.
Section 3.7. Reservation and Listing of Common Stock. The Company will
at all times reserve and keep available, solely for issuance and delivery upon
the exercise of the Warrants, all shares of Common Stock from time to time
issuable upon such exercise. All such shares shall be authorized and, when
issued upon such exercise, shall be validly issued, fully paid and
nonassessable with no liability on the part of the holder thereof. The
Company, at its expense, will list on each national securities exchange on
which any Common Stock may at any time be listed, subject to official notice of
issuance, and will maintain such listing of, the shares of Common Stock from
time to time issuable upon the exercise of the Warrants.
Section 3.8. Registration or Exemption for Common Stock. The Company
will use its best efforts (a) at all times the Warrants are exercisable to
maintain an effective registration statement under the Securities Act of 1933,
as amended (the "Act"), covering Common Stock issuable upon exercise of the
Warrants, (b) from time to time to amend or supplement the prospectus contained
in such registration statement to the extent necessary in order to comply with
applicable law, (c) to qualify for exemption from the registration requirements
of the Act the Common Stock issuable upon exercise of the Warrants, and (d) to
maintain exemptions or qualifications, in those jurisdictions in which the
original registration statement relating to the Warrants was initially
qualified, to permit the exercise of the Warrants and the issuance of the
Common Stock pursuant to such exercise. The Warrant Agent shall have no
responsibility for the maintenance of such exemptions or qualifications or for
liabilities arising from the exercise or attempted exercise of Warrants in
jurisdictions where exemptions or qualifications have not been maintained or
are otherwise unavailable.
ARTICLE IV.
REDEMPTION OF WARRANTS
Section 4.1. Redemption Price. The Warrants may be redeemed at the
option of the Company, at any time 90 days after the date hereof following a
period of 20 consecutive trading days where the per share average closing bid
price of the Common Stock exceeds 120% of the Exercise Price, on notice as set
forth in Section 4.2, and at a redemption price equal to $.01 per Warrant. For
purposes of this Section, the closing bid price of the Common Stock shall be
determined by the closing bid price as reported by NASDAQ so long as the Common
Stock is quoted on NASDAQ and, if the Common Stock is listed on a national
securities exchange, shall be determined by the last reported sale price on the
primary exchange on which the Common Stock is traded.
Section 4.2. Notice of Redemption. In the case of any redemption of
Warrants, the Company or, at its request, the Warrant Agent in the name of and
at the expense of the Company shall give notice of such redemption to the
holders of the Warrants to be redeemed as hereinafter provided in this Section
4.2. Notice of redemption to the holders of Warrants shall be given by
7
<PAGE> 8
mailing by first-class mail a notice of such redemption not less than 30 days
prior to the date fixed for redemption. Any notice which is given in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the holder receives the notice. In any case, failure duly to
give such notice, or any defect in such notice, to the holder of any Warrant
Certificate shall not affect the validity of the proceedings for the redemption
of Warrants represented by any other Warrant Certificate. Each such notice
shall specify the date fixed for redemption, the place of redemption and the
redemption price of $.01 at which each Warrant is to be redeemed, and shall
state that payment of the redemption price of the Warrants will be made on
surrender of the Warrants at such place of redemption, and that if not
exercised by the close of business on the date fixed for redemption, the
exercise rights of the Warrants identified for redemption shall expire unless
extended by the Company. Such notice shall also state the current Exercise
Price and the date on which the right to exercise the Warrants will expire
unless extended by the Company.
Section 4.3. Payment of Warrants on Redemption; Deposit of Redemption
Price. If notice of redemption shall have been given as provided in Section
4.2, the redemption price of $.01 per Warrant shall, unless the Warrant is
theretofore exercised pursuant to the terms hereof, become due and payable on
the date and at the place stated in such notice. On and after such date of
redemption, provided that cash sufficient for the redemption thereof shall then
be deposited by the Company with the Warrant Agent for that purpose, the
exercise rights of the Warrants identified for redemption shall expire. On
presentation and surrender of Warrant Certificates at such place of payment in
such notice specified, the Warrants identified for redemption shall be paid and
redeemed at the redemption price of $.01 per Warrant. Prior to the date fixed
for redemption, the Company shall deposit with the Warrant Agent an amount of
money sufficient to pay the redemption price of all the Warrants identified for
redemption. Any monies which shall have been deposited with the Warrant Agent
for redemption of Warrants and which are not required for that purpose by
reason of exercise of Warrants shall be repaid to the Company upon delivery to
the Warrant Agent of evidence satisfactory to it of such exercise.
ARTICLE V.
CERTAIN OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS OF WARRANT CERTIFICATES
Section 5.1. No Rights of Shareholders. The Warrant Certificates shall
be issued in registered form only. No Warrant Certificate shall entitle the
holder thereof to any of the rights of a holder of shares of Common Stock of
the Company, including, without limitation, the right to vote, to receive
dividends and other distributions, or to receive any notice of, or to attend,
meetings of holders of Common Stock or any other proceedings of the Company.
Section 5.2. Loss, Theft, Destruction or Mutilation of Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to the Warrant Agent of the loss, theft, destruction or mutilation
of any Warrant Certificate, and (a) in the case of any such loss, theft, or
destruction, upon delivery to the Warrant Agent of an indemnity bond in form
and amount, and issued by a bonding company, reasonably satisfactory to the
Company, or (b) in the case of any
8
<PAGE> 9
such mutilation, upon surrender to and cancellation by the Warrant Agent of
such Warrant Certificate, the Company at its expense will execute and cause the
Warrant Agent to countersign and deliver, in lieu thereof, a new Warrant
Certificate of like tenor.
Section 5.3. Transfer Agent; Cancellation of Warrant Certificates;
Unexercised Warrants. Firstar Trust Company (and any successor), as transfer
agent (the "Transfer Agent"), is hereby irrevocably authorized and directed at
all times to reserve such number of authorized and unissued shares of Common
Stock as shall be sufficient to permit the exercise in full of all Warrants
from time to time outstanding. The Company will keep a copy of this Agreement
on file with the Transfer Agent. The Warrant Agent, and any successor thereto,
is hereby irrevocably authorized to requisition from time to time from the
Transfer Agent certificates for shares of Common Stock required for exercise of
Warrants. The Company will supply the Transfer Agent with duly executed
certificates for shares of Common Stock for such purpose and will make
available any cash required in settlement of fractional share interests. All
Warrant Certificates surrendered upon the exercise or redemption of Warrants
shall be cancelled by the Warrant Agent and shall thereafter be delivered to
the Company; such cancelled Warrant Certificates, with the Purchase Form on the
reverse thereof duly filled in and signed, shall constitute conclusive evidence
as between the parties hereto of the numbers of shares of Common Stock which
shall have been issued upon exercises of Warrants. Promptly after the last day
on which the Warrants are exercisable (set forth in Section 2.1 above), the
Warrant Agent shall certify to the Company the aggregate number of Warrants
then outstanding and unexercised. No shares of Common Stock shall be subject
to reservation with respect to Warrants not exercised prior to the time and
date identified in Section 2.1 above as the last time and date at which
Warrants may be exercised.
ARTICLE VI.
TRANSFER AND EXCHANGE OF WARRANT CERTIFICATES
Section 6.1. Warrant Register; Transfer or Exchange of Warrant
Certificates. The Warrant Agent shall cause to be kept at the principal office
of the Warrant Agent a register (the "Warrant Register") in which, subject to
such reasonable regulations as the Company may prescribe, provisions shall be
made for the registration of transfers and exchanges of Warrant Certificates.
Upon surrender for transfer or exchange of any Warrant Certificates, properly
endorsed, to the Warrant Agent, the Warrant Agent at the Company's expense will
issue and deliver to or upon the order of the holder thereof a new Warrant
Certificate or Warrant Certificates of like tenor, in the name of such holder
or as such holder (upon payment by such holder of any applicable transfer
taxes) may direct, calling in the aggregate on the face or faces thereof for
the number of shares of Common Stock called for on the face of the Warrant
Certificate so surrendered. Any Warrant Certificate surrendered for transfer
or exchange shall be cancelled by the Warrant Agent and shall thereafter be
delivered to the Company.
Section 6.2. Identity of Warrantholders. Until a Warrant Certificate is
transferred in the Warrant Register, the Company and the Warrant Agent may
treat the person in whose name the Warrant Certificate is registered as the
absolute owner thereof and of the Warrants represented thereby for all
purposes, notwithstanding any notice to the contrary, except that, if and when
any
9
<PAGE> 10
Warrant Certificate is properly assigned in blank, the Company and the Warrant
Agent may (but shall not be obligated to) treat the bearer thereof as the
absolute owner of the Warrant Certificate and of the Warrants represented
thereby for all purposes, notwithstanding any notice to the contrary.
ARTICLE VII.
CONCERNING THE WARRANT AGENT
Section 7. 1. Taxes. The Company will, from time to time, promptly pay to
the Warrant Agent, or make provision satisfactory to the Warrant Agent for the
payment of, all taxes and charges that may be imposed by the United States or
any State upon the Company or the Warrant Agent upon the transfer or delivery
of shares of Common Stock upon the exercise of Warrants, but the Company shall
not be obligated to pay any tax imposed in connection with any transfer
involved in the delivery of a certificate for shares of Common Stock in any
name other than that of the registered holder of the Warrant Certificate
surrendered in connection with the purchase thereof.
Section 7.2. Replacement of Warrant Agent in Certain Circumstances.
(a) The Warrant Agent may resign its duties and be discharged from
all further duties and liabilities hereunder after giving thirty (30) days
notice in writing to the Company, except that such shorter notice may be
given as the Company shall, in writing, accept as sufficient. The Company
may discharge the Warrant Agent at any time with or without reason,
effective upon thirty (30) days written notice to the Warrant Agent or
such shorter period as the Warrant Agent shall, in writing, accept as
sufficient. If the office of Warrant Agent becomes vacant by resignation,
discharge, incapacity to act or otherwise, the Company shall appoint in
writing a new Warrant Agent, the principal office of which shall be in
Minnesota. If the Company shall fail to make such appointment within a
period of thirty (30) days after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Warrant Agent
or by the holder of a Warrant Certificate, then the holder of any Warrant
Certificate may apply to any court of competent jurisdiction for the
appointment of a new Warrant Agent. Any new Warrant Agent, whether
appointed by the Company or by such a court, shall be a corporation
organized and doing business under the laws of the United States or of the
State of Minnesota, of good standing, and having its principal office in
Minnesota, which is authorized under such laws to exercise corporate trust
powers and is subject to supervision or examination by Federal or State
authority. Any new Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to the Company an instrument accepting such
appointment hereunder and thereupon such new Warrant Agent without any
further act or deed shall become vested with all the rights, powers,
duties and responsibilities of the Warrant Agent hereunder with like
effect as if it had been named as the Warrant Agent; but if for any reason
it becomes necessary or expedient to have the former Warrant Agent execute
and deliver any further assurance, conveyance, act or deed, the same shall
be done and shall be legally and validly executed and delivered by the
former Warrant Agent. Not later than the effective date of any such
10
<PAGE> 11
appointment the Company shall file notice thereof with the former
Warrant Agent. The Company shall promptly give notice of any such
appointment to the holders of the Warrant Certificates by mail to their
addresses as shown in the Warrant Register. Failure to file or give such
notice, or any defect therein, shall not affect the legality or validity
of the appointment of the successor Warrant Agent.
(b) Any company into which the Warrant Agent or any new Warrant Agent
may be merged or converted or with which it may be consolidated or any
company resulting from any merger, conversion or consolidation to which
the Warrant Agent or any new Warrant Agent shall be a party shall be the
successor Warrant Agent under this Warrant Agreement without any further
act; provided that if such company would not be eligible for appointment
as a successor Warrant Agent under the provisions of paragraph (a) of this
Section 7.2 the Company shall forthwith appoint a new Warrant Agent in
accordance with such provisions. Any such successor Warrant Agent may
adopt the prior countersignature of any predecessor Warrant Agent and
deliver Warrant Certificates countersigned and not delivered by such
predecessor Warrant Agent or may countersign Warrant Certificates either
in the name of any predecessor Warrant Agent or the name of the successor
Warrant Agent.
Section 7.3. Remuneration of Warrant Agent. The Company will pay the
Warrant Agent reasonable remuneration for its services as Warrant Agent
hereunder and will reimburse the Warrant Agent upon demand for all expenditures
that the Warrant Agent may reasonably incur in the execution of its duties
hereunder.
Section 7.4. Further Assurances. The Company will perform, exercise,
acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and assurances as may
reasonably be required by the Warrant Agent for the carrying out or performing
by the Warrant Agent of the provisions of this Warrant Agreement.
Section 7.5. Limitations on Liabilities of the Warrant Agent.
(a) The Warrant Agent may consult with legal counsel (who may
be legal counsel for the Company), and the opinion of such counsel
shall be full and complete authorization and protection of the
Warrant Agent as to any action taken or omitted by it in good faith
and in accordance with such opinion.
(b) Whenever, in the performance of its duties under this
Warrant Agreement, the Warrant Agent shall deem it necessary or
desirable that any matter be proved or established, or that any
instructions with respect to the performance of its duties hereunder
be given, by the Company prior to taking or suffering any action
hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively
proved and established, or such instructions may be given, by a
certificate or instrument signed by an officer of the Company and
delivered to the Warrant Agent; and such certificate or instrument
shall be full authorization to the Warrant Agent for any action
taken
11
<PAGE> 12
or suffered in good faith by it under the provisions of this Warrant
Agreement in reliance upon such certificate or instrument; but in
its discretion the Warrant Agent may in lieu thereof accept other
evidence of such matter or may require such further or additional
evidence as it may deem reasonable.
(c) The Warrant Agent shall be liable hereunder only for its
own negligence or willful misconduct. The Warrant Agent shall act
hereunder solely as agent, and its duties shall be determined solely
by the provisions hereof. The Company agrees to indemnify the
Warrant Agent and save it harmless against any and all liabilities,
including judgments, costs and counsel fees, for anything done or
omitted by the Warrant Agent in the execution of this Warrant
Agreement except as a result of the Warrant Agent's negligence or
willful misconduct.
(d) The Warrant Agent shall not be liable for or by reason of
any of the statements of fact or recitals contained in this Warrant
Agreement or in the Warrant Certificates (except its
countersignature thereof) or be required to verify the same, but all
such statements and recitals are and shall be deemed to have been
made by the Company only.
(e) The Warrant Agent shall not be under any responsibility in
respect to the validity or execution of any Warrant Certificate
(except its countersignature thereof); nor shall it be responsible
for any breach by the Company of any covenant or condition contained
in this Warrant Agreement or in any Warrant Certificate; nor shall
it be responsible for the making of any adjustment in the Exercise
Price, or number of shares issuable upon exercise of the Warrant
Certificates or responsible for the manner, method or amount of any
such adjustment or the facts that would require any such adjustment;
nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of
any shares of Common Stock to be issued pursuant to this Warrant
Agreement or any Warrant Certificate or as to whether any shares of
Common Stock or other securities are or will be validly authorized
and issued and fully paid and nonassessable.
Section 7.6. Amendment and Modification. The Warrant Agent may, without
the consent or concurrence of the holders of the Warrant Certificates, by
supplemental agreement or otherwise, join with the Company in making any
changes or corrections in this Warrant Agreement that they shall have been
advised by counsel (a) are required to cure any ambiguity or to correct any
defective or inconsistent provision or clerical omission or mistake or manifest
error herein contained, (b) add to the obligations of the Company in this
Warrant Agreement further obligations thereafter to be observed by it, or
surrender any right or power reserved to or conferred upon the Company in this
Warrant Agreement, or (c) do not or will not adversely affect, alter or change
the rights, privileges or immunities of the holders of Warrant Certificates not
provided for under this Warrant Agreement; provided, however, that any term of
this Warrant Agreement or any Warrant Certificate may be changed, waived,
discharged or terminated by an
12
<PAGE> 13
instrument in writing signed by each party against which enforcement of such
change, waiver, discharge or termination is sought, or by which the same is to
be performed or observed.
ARTICLE VIII.
OTHER MATTERS
Section 8.1. Successors and Assigns. All the covenants and provisions of
this Warrant Agreement by or for the benefit of the Company or the Warrant
Agent shall bind and inure to the benefit of their respective successors and
assigns.
Section 8.2. Notices. Any notice or demand authorized by this Warrant
Agreement to be given or made by the Warrant Agent or by the holder of any
Warrant Certificate to or on the Company shall be sufficiently given or made if
sent by first class or registered mail, postage prepaid, addressed (until
another address is filed in writing by the Company with the Warrant Agent) as
follows:
Famous Dave's of America, Inc.
12700 Industrial Park Boulevard, Suite 60
Plymouth, MN 55441
Any notice or demand authorized by this Warrant Agreement to be given or made
by the holder of any Warrant Certificate or by the Company to or on the Warrant
Agent shall be sufficiently given or made if sent by first class or registered
mail, postage prepaid, addressed (until another address is filed in writing by
the Warrant Agent with the Company) as follows:
Firstar Trust Company
615 East Michigan Street
Milwaukee, MI 53201-2077
Section 8.3. Governing Law. This Warrant Agreement and the Warrant
Certificates are being delivered in the State of Minnesota and shall be
construed and enforced in accordance with and governed by the laws of such
State.
Section 8.4. No Benefits Conferred. Nothing in this Warrant Agreement
expressed and nothing that may be implied from any of the provisions hereof is
intended, or shall be construed, to confer upon, or give to, any person or
corporation other than the Company, the Warrant Agent, and the holders of the
Warrant Certificates, any right, remedy or claim under or by reason of this
Agreement or of any covenant, condition, stipulation, promise or agreement
herein; and all covenants, conditions, stipulations, promises and agreements in
this Warrant Agreement contained shall be for the sole and exclusive benefit of
the Company, the Warrant Agent, their respective successors and the holders of
the Warrant Certificates.
13
<PAGE> 14
Section 8.5. Headings. The descriptive headings used in this Warrant
Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, this Warrant Agreement has been duly executed by the
parties hereto as of the day and year first above written.
FAMOUS DAVE'S OF AMERICA, INC.
By __________________________________
Its Chief Executive Officer
FIRSTAR TRUST COMPANY
By __________________________________
Its ______________________________
14
<PAGE> 15
EXHIBIT A
No. _____________ Certificate for ______ Warrants
THIS WARRANT CERTIFICATE MAY BE
TRANSFERRED SEPARATELY FROM THE COMMON STOCK CERTIFICATE
WITH WHICH IT IS INITIALLY ISSUED
EXERCISABLE ON OR BEFORE, AND VOID AFTER,
5:00 P.M. MINNEAPOLIS TIME OCTOBER _____, 2001
FAMOUS DAVE'S OF AMERICA, INC.
WARRANTS TO PURCHASE COMMON STOCK OF
FAMOUS DAVE'S OF AMERICA, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF MINNESOTA
THIS CERTIFIES that CUSIP 307068 11 4
or assigns, is the owner of the number of Warrants set forth above, each of
which represents the right to purchase from Famous Dave's of America, Inc., a
Minnesota corporation (the "Company"), at any time on or before 5:00
Minneapolis time, October ___, 2001, upon compliance with and subject to the
conditions set forth herein and in the Warrant Agreement hereinafter referred
to, one share (subject to adjustments referred to below) of the Common Stock of
the Company (such shares or other securities or property purchasable upon
exercise of the Warrants being herein called the "Shares"), by surrendering
this Warrant Certificate, with the Purchase Form on the reverse side duly
executed, at the principal office of Firstar Trust Company, or its successor,
as warrant agent (the "Warrant Agent"), and by paying in full, in cash or by
certified or official bank check payable to the order of the Company, the
exercise price of $8.50 per share.
Upon any exercise of less than all the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder a new Warrant Certificate in
respect of the Warrants as to which this Warrant Certificate was not exercised.
Upon the surrender for transfer or exchange hereof, properly endorsed, to
the Warrant Agent, the Warrant Agent at the Company's expense will issue and
deliver to the order of the holder hereof, a new Warrant Certificate or Warrant
Certificates of like tenor, in the name of such holder or as such holder (upon
payment by such holder of any applicable transfer taxes) may
<PAGE> 16
direct, calling in the aggregate on the face or faces thereof for the number of
shares of Common Stock called for on the face hereof.
The Warrant Certificates are issued only as registered Warrant
Certificates. Until this Warrant Certificate is transferred in the Warrant
Register, the Company and the Warrant Agent may treat the person in whose name
this Warrant Certificate is registered as the absolute owner hereof and of the
Warrants represented hereby for all purposes, notwithstanding any notice to the
contrary.
This Warrant Certificate is issued under the Warrant Agreement dated as of
October ___, 1996 between the Company and the Warrant Agent. The Warrant
Agreement is hereby incorporated by reference into this Warrant Certificate and
this Warrant Certificate is subject to the terms and provisions contained in
said Warrant Agreement, to all of which terms and provisions the registered
holder of this Warrant Certificate consents by acceptance hereof. Copies of
said Warrant Agreement are on file at the principal office of the Warrant Agent
in Milwaukee, Wisconsin, and may be obtained by writing to the Warrant Agent.
The number of Shares receivable upon the exercise of the Warrants
represented by this Warrant Certificate and the exercise price per share are
subject to adjustment upon the happening of certain events specified in the
Warrant Agreement.
No fractional Shares of the Company's Common Stock will be issued upon the
exercise of Warrants. As to any final fraction of a share which a holder of
Warrants exercised in the same transaction would otherwise be entitled to
purchase on such exercise, the Company shall pay a cash adjustment in lieu of
any fractional Share determined as provided in the Warrant Agreement.
The Warrants may be redeemed at the option of the Company, at any time
following a period of 10 consecutive trading days where the per share average
closing bid price of the Common Stock exceeds 120% of the Exercise Price, on
notice as set forth in the Warrant Agreement, and at a redemption price equal
to $.01 per Warrant. If notice of redemption shall have been given as provided
in the Warrant Agreement and cash sufficient for the redemption be deposited by
the Company for that purpose, the exercise rights of the Warrants identified
for redemption shall expire at the close of business on such date of redemption
unless extended by the Company.
This Warrant Certificate shall not entitle the holder hereof to any of the
rights of a holder of Common Stock of the Company, including, without
limitation, the right to vote, to receive dividends and other distributions, to
exercise any preemptive right, or to receive any notice of, or to attend
meetings of holders of Common Stock or any other proceedings of the Company.
This Warrant Certificate shall be void and the Warrants and any rights
represented hereby shall cease unless exercised on or before 5:00 p.m.
Minneapolis time on October ___, 2001, unless extended by the Company.
<PAGE> 17
This Warrant Certificate shall not be valid for any purpose until it shall
have been countersigned by the Warrant Agent.
WITNESS the facsimile signatures of the Company's duly authorized
officers.
FAMOUS DAVE'S OF AMERICA, INC.
By ______________________________
Chairman of the Board
By ______________________________
Secretary
COUNTERSIGNED AND REGISTERED:
as Warrant Agent
FIRSTAR TRUST COMPANY
By ______________________________
Authorized Officer
<PAGE> 18
[REVERSE OF WARRANT CERTIFICATE]
THE CORPORATION WILL FURNISH ANY SHAREHOLDER UPON REQUEST AND WITHOUT CHARGE, A
COPY OF THE ARTICLES OF INCORPORATION AND A FULL STATEMENT OF THE DESIGNATIONS,
PREFERENCES, LIMITATIONS, AND RELATIVE RIGHTS OF THE SHARES OF EACH CLASS OR
SERIES AUTHORIZED TO BE ISSUED, SO FAR AS THEY HAVE BEEN DETERMINED, AND THE
AUTHORITY OF THE BOARD TO DETERMINE THE RELATIVE RIGHTS AND PREFERENCES OF
SUBSEQUENT CLASSES OR SERIES.
TO: Famous Dave's of America, Inc.
c/o Firstar Trust Company
Warrant Agent
PURCHASE FORM
(To be Executed by the Registered Holder
in Order to Exercise of Warrant Certificates)
The undersigned hereby irrevocably elects to exercise ________________* of
the Warrants represented by the Warrant Certificate and to purchase for cash
the Shares issuable upon the exercise of said Warrants and requests that
certificates for such Shares shall be issued in the name of
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF
REGISTERED HOLDER OF CERTIFICATE
______________________________________________________________________________
(Print Name)
______________________________________________________________________________
(Address)
Dated: __________________________ Signature: ______________________________
* Insert here the number of Warrants evidenced on the face of this Warrant
Certificate (or, in the case of a partial exercise, the portion thereof being
exercised), in either case without making any adjustment for additional Common
Stock or any other securities or property or cash which, pursuant to the
adjustment provisions referred to in this Warrant Certificate, may be
deliverable upon exercise.
<PAGE> 19
ASSIGNMENT FORM
(To be Executed by the Registered Holder
in Order to Transfer Warrant Certificates)
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers
____________________________________ of the Warrants to purchase shares of
Common Stock represented by this Warrant Certificate unto
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
______________________________________________________________________________
______________________________________________________________________________
and does hereby irrevocably constitute and appoint ___________________________
Attorney to transfer this Warrant Certificate on the records of the Company
with full power of substitution in the premises.
Dated:________________________ Signature(s) ______________________________
SIGNATURE(S) GUARANTEED:
_____________________________
NOTICE
The signature(s) to the Purchase Form or the Assignment Form must
correspond to the name as written upon the face of this Warrant Certificate in
every particular without alteration or enlargement or any change whatsoever.
89275-1
<PAGE> 1
EXHIBIT 5
[MASLON EDELMAN BORMAN & BRAND LETTERHEAD]
September 30, 1996
Famous Dave's of America, Inc.
12700 Industrial Park Boulevard, Suite 60
Minneapolis, Minnesota 55441
Re: Registration Statement on Form SB-2
Ladies and Gentlemen:
We have acted on behalf of Famous Dave's of America, Inc. (the
"Company") in connection with a Registration Statement on Form SB-2 (the
"Registration Statement") filed by the Company with the Securities and Exchange
Commission relating to Units (the "Units"), each consisting of one share (the
"Unit Shares") of Common Stock, $.01 par value (the "Common Stock") of the
Company and one Class A Warrant (the "Warrants") to purchase one share of the
Common Stock, and shares (the "Warrant Shares") of the Common Stock issuable
upon exercise of the Warrants, all of which are to be issued by the Company.
Upon examination of such corporate documents and records as we have deemed
necessary or advisable for the purposes hereof and including and in reliance
upon certain certificates by the Company, it is our opinion that:
1. The Company is a validly existing corporation in good standing
under the laws of the State of Minnesota.
2. The Units, the Unit Shares, the Warrants and the Warrant
Shares, when issued and sold as contemplated in the Registration Statement,
will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Maslon Edelman Borman & Brand, PLLP
<PAGE> 1
EXHIBIT 10.5
January 4, 1996
Tenant shall use its best efforts to get approval from the City of
Minneapolis to enclose the Farmers Market Area. In the event Tenant is unable
to secure such approval and the Farmers Market Area is not enclosed and
occupied by Tenant, then Landlord and Tenant shall modify the Lease to remove
the Farmers Market Area from the Premises to adjust Annual Minimum Rent and
Percentage Rent Breakpoints on a pro-rata basis.
LANDLORD: CALHOUN SQUARE ASSOCIATES
LIMITED PARTNERSHIP
By Calhoun Square Associates
General Partner of Calhoun
Square Associates Limited
Partnership
By RHH Limited Partnership
General Partner of Calhoun
Square Associates
By ______________________________________
General Partner of
RHH Limited Partnership
TENANT: LAKE & HENNEPIN BBQ
AND BLUES, INC.
By_______________________________________
Its_________________________________
<PAGE> 2
SHOPPING CENTER LEASE
CALHOUN SQUARE
Minneapolis, Minnesota
LANDLORD: CALHOUN SQUARE ASSOCIATES
LIMITED PARTNERSHIP
TENANT: LAKE & HENNEPIN BBQ AND
BLUES, INC.
<PAGE> 3
TABLE OF CONTENTS
Article Page
- ------- ----
I - PERTINENT DATA . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II -- PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
III -- TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
IV -- MINIMUM RENT . . . . . . . . . . . . . . . . . . . . . . . . . . 6
V -- PERCENTAGE RENT . . . . . . . . . . . . . . . . . . . . . . . . . 7
VI - SALES REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . 10
VII -- ADDITIONAL RENT . . . . . . . . . . . . . . . . . . . . . . . . 10
VIII -- CONSTRUCTION AND PREPARATION OF LEASED PREMISES . . . . . . . . 11
IX - USE OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . 12
X -- OPERATION AND MAINTENANCE OF PARKING RAMP AND OTHER COMMON AREAS . 14
XI -- REPAIRS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
XII - INSTALLATIONS, ALTERATIONS AND SIGNS . . . . . . . . . . . . . . 18
XIII - UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
XIV - TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
XV - ADVERTISING AND PROMOTION . . . . . . . . . . . . . . . . . . . . 21
XVI - INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
XVII - INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
XVIII - ACCESS TO Premises . . . . . . . . . . . . . . . . . . . . . . 29
XIX - DAMAGE BY FIRE OR OTHER CASUALTY . . . . . . . . . . . . . . . . 29
XX - EMINENT DOMAIN . . . . . . . . . . . . . . . . . . . . . . . . . . 30
XXI - ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . 32
XXII - COMPETITION . . . . . . . . . . . . . . . . . . . . . . . . . . 33
XXIII - FAILURE TO DO BUSINESS . . . . . . . . . . . . . . . . . . . . 34
XXIV - DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
XXV - SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . 41
<PAGE> 4
XXVI - SURRENDER OF POSSESSION . . . . . . . . . . . . . . . . . . . . 42
XXVII - FINANCIAL ABILITY OF TENANT . . . . . . . . . . . . . . . . . . 43
XXVIII - SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . 43
XXIX - QUIET ENJOYMENT . . . . . . . . . . . . . . . . . . . . . . . . 44
XXX - CORPORATE TENANT . . . . . . . . . . . . . . . . . . . . . . . . 44
XXXI - TENANT'S STATEMENT . . . . . . . . . . . . . . . . . . . . . . . 44
XXXII - RULES AND REGULATIONS, HOURS . . . . . . . . . . . . . . . . . 45
XXXIII - NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
XXXIV - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 46
<PAGE> 5
LEASE
This Lease Agreement, made and entered into this ____ day of January,
1996, by and between CALHOUN SQUARE ASSOCIATES LIMITED PARTNERSHIP, with
offices at 3001 Hennepin Avenue South, Suite 301B, Minneapolis, Minnesota
55408, hereinafter called the "Landlord" and LAKE & HENNEPIN BBQ AND BLUES,
INC., hereinafter called the "Tenant," with offices at ________________________
_______________________________.
WITNESSETH:
That, in consideration of the mutual covenants and agreements herein
contained, Landlord and Tenant do hereby agree as follows:
ARTICLE I - PERTINENT DATA
Each reference in this Lease to any of the following terms shall be
construed to include the pertinent data set forth below.
1. PREMISES: The area designated as space No. G-109, consisting
of approximately 5,950 square feet, plus the patio adjacent thereto consisting
of approximately 1,445 square feet (which area shall not be included in
determining the gross leasable area of the Premises as provided in Article II,
Section 3), and the currently existing farmers' market area (hereinafter the
"Farmers Market Area") immediately east of space no. G-108 and G-109 consisting
of approximately 1,050 square feet, all as further described in Article II.
The leasable area as to which rent is payable is 7,000 square feet in
aggregate.
2. TERM: Fifteen full lease years, commencing on June 1, 1996
and ending on May 31, 2011. In addition, Tenant shall have options for two
extended terms of five (5) years each as provided in Exhibit F, Section 8.
3. PERMITTED USE: A full-service bar-b-que restaurant having a
full-service bar and providing live blues entertainment with take-out dining
available. In addition, Tenant shall be permitted to sell related merchandise
bearing Tenant's trade name and/or logo, pre-recorded music by bands appearing
live at the Premises, and merchandise such as t-shirts related to such bands,
provided such merchandise and music sales shall be incidental to Tenant's
primary restaurant, bar and entertainment use.
4. ANNUAL MINIMUM RENT:
(a) For each year during the initial ten (10) years of the term of
the Lease (i.e., through May 31, 2006), annual minimum rent shall be $126,000
per year, payable $10,500 per month.
(b) Provided that Tenant completes its improvements (except for
punch list items which do not prevent Tenant from operating) and opens for
business on or before August 1, 1996 (subject to
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delays by reason of Acts of God, the negligence of Landlord or unreasonable
delays by Landlord in reviewing Tenant's plans and specifications or other
cause beyond the control of Tenant, provided that Tenant shall promptly notify
Landlord in writing of such delays and shall use due diligence to overcome such
delays as expeditiously as possible), and further provided that Tenant has met
the requirements of Exhibit F, Section 6 as to the cost of tenant improvements,
and further provided that Tenant is not in default beyond applicable cure
periods of any of the covenants, terms and conditions of the Lease to be
performed by Tenant, Tenant shall have a credit of $250,000 against the annual
minimum rent next coming due hereunder. (See also Exhibit F, Section 69.)
(c) For the five (5) years beginning on June 1, 2006 and ending
May 31, 2011, annual minimum rent for each year during the first five (5) year
extended term shall be $168,000 per year, payable $14,000 per month.
(d) If Tenant effectively exercises the first option to extend the
term of the Lease for an additional period of five (5) years beginning on June
1, 2011, annual minimum rent for each year during the first five (5) year
extended term shall be $182,000 per year, payable $15,167 per month.
(e) If Tenant effectively exercises the second option to extend
the term of the Lease for an additional period of five (5) years beginning on
June 1, 2016, annual minimum rent for each year during the second five (5) year
extended term shall be $210,000 per year, payable $17,500 per month.
5. PERCENTAGE RENT RATE: Five percent (5%) of annual gross sales.
Accordingly, for each year during the initial ten (10) years of the Lease,
Tenant shall pay percentage rent equal to 5% of annual gross sales in excess of
$2,520,000; for each year of the next five years (i.e., June 1, 2006 - May 31,
2011) of the Lease, Tenant shall pay percentage rent equal to 5% of annual
gross sales in excess of $3,360,000; for each year of the first option term of
the Lease, Tenant shall pay percentage rent equal to 5% of annual gross sales
in excess of $3,640,000; and for each year of the second option term of the
Lease, Tenant shall pay percentage rent equal to 5% of annual gross sales in
excess of $4,200,000. Notwithstanding anything to the contrary, provided that
Tenant is not in default beyond applicable cure periods of any of the
covenants, terms and conditions of the Lease to be performed by Tenant, Tenant
shall have a credit against annual percentage rent coming due in each of the
first five (5) full fiscal years of the initial term of $12,500. The maximum
credit for which Tenant is eligible hereunder shall be $62,500. To the extent
the full $12,500 credit is not used in any year, it shall be lost, it being the
agreement of the parties that the credits shall not be cumulative.
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6. TENANT'S TRADE NAME: Famous Dave's BAR-B-QUE or Famous Dave's
BAR-B-QUE & Blues.
7. SECURITY DEPOSIT: $0.00
8. COMMENCEMENT DATE: June 1, 1996. Tenant shall have the right
of early possession as provided in Exhibit F, Section 9 for purposes of
preparing the Premises for occupancy.
9. ADDITIONAL PROVISIONS: Exhibit F contains additional
provisions and amendments to this Lease. In the event of any conflict between
the provisions contained in Exhibit F and any other provision of this Lease and
its Exhibits, the provisions of Exhibit F shall control.
ARTICLE II -- PREMISES
SECTION 1. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord for the term, at the rental and upon the covenants and conditions
set forth herein, the Premises outlined in red on Exhibit B. The Premises,
having the gross leasable area as set forth in Article I, which Landlord and
Tenant hereby conclusively agree represents the gross leasable area of the
Premises for all purposes of this Lease, constitute a part of a shopping
center, commonly known as Calhoun Square Shopping Center, at the Southeast
corner of Hennepin Avenue and Lake Street, in the City of Minneapolis, County
of Hennepin, State of Minnesota. The term "shopping center," as used herein,
shall mean all land, buildings or other improvements owned or leased by
Landlord within the boundaries of the tract indicated on Exhibit A. Landlord
reserves the right to use the exterior walls and the roof of, and the right to
install, maintain, use and repair pipes, ducts, conduits, vents and wires
through, the Premises. Landlord shall be entitled to permit other tenants,
utility companies and others to exercise such rights. Landlord and anyone else
exercising such rights shall use reasonable efforts to avoid unreasonable
interference or disturbance of Tenant's decoration or operations within the
selling area of the Premises in connection with such installation.
Notwithstanding the description of the Premises herein or the depiction of the
shopping center on Exhibit B, Landlord may at any time, in its sole discretion,
and with or without monetary gain to it or others, increase, reduce, rearrange
or change the number, dimensions, or locations of the shopping center
buildings, common areas, and parking areas as Landlord shall determine, or
devote the same to other purposes either temporarily or permanently; add
permanent or portable kiosks, carts or other sales facilities; build additional
stories on any building or build adjoining the same; and change store sizes and
the identity and type of other stores or tenancies. No such changes, or any of
them, shall invalidate or affect this Lease nor result in any liability of
Landlord to Tenant. Landlord and Tenant shall, on request by either, modify
Exhibit B to reflect any such change(s).
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SECTION 2. The exhibits hereto set forth the general layout of the
shopping center and may indicate certain existing or proposed store divisions
and the identities and locations of certain tenants, but neither said exhibits
nor anything else shall be deemed to be or contain any warranty, representation
or agreement on the part of the Landlord that any of said matters shall be
exactly as indicated on said exhibits or that any particular merchant shall
open or remain open for business, or as to the identity, type, number or size
of other stores or tenancies in the shopping center.
SECTION 3. If, by reason of casualty, condemnation or a shift in the
location of the Premises, the Premises shall be increased or reduced in size,
then the gross leasable area of the premises shall be measured from the outside
of exterior walls or of those walls facing corridors or stairways or other
common areas and from the mid-point of walls common to adjacent tenant
premises. No deduction shall be made for columns or other structural or
mechanical elements within the Premises. If the Premises includes any
mezzanine, terrace, deck, plaza or outdoor area, all of such area shall be
included in calculating the gross leasable area of the Premises. If any
storage areas are separately leased to Tenant, such areas shall be excluded in
calculating the gross leasable area of the Premises.
SECTION 4. The term "gross leasable area in the shopping center," as
hereinafter used, shall be deemed to mean the total gross leasable area in all
buildings in the shopping center (as initially constructed or as hereinafter
enlarged or reduced) which is from time to time designated by Landlord for
occupancy by tenants of the shopping center, excluding the square footage of
building roofs, common areas (as defined in Article X hereof), outdoor sales
areas, and any storage areas separately used by tenants. All measurements
shall be made in the manner set forth in Section 3 of this Article.
ARTICLE III -- TERM
SECTION 1. The term of this Lease and Tenant's obligation to pay rent
and all other charges shall commence upon that date (hereinafter called the
"Commencement Date") which is the earlier of (a) the Commencement Date
specified in Article I, or (b) the date upon which Tenant shall open the
Premises for business to the public. The term of this Lease shall continue
thereafter for the period specified in Article I. As used in this Lease, the
term "lease year" means a 12 calendar month period beginning on the
Commencement Date if it is the first day of a calendar month and otherwise
beginning on the first day of the first full calendar month following the
Commencement Date. If the Commencement Date is other than the first day of a
calendar month, the period beginning on the Commencement Date and ending on the
last day of the calendar
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month in which the Commencement Date occurs shall be referred to as a "partial
lease year."
SECTION 2. Within seven (7) days following the Commencement Date,
Tenant shall deliver to Landlord a signed and completely filled in Tenant's
Estoppel Certificate (in the form of Exhibit "D").
ARTICLE IV -- MINIMUM RENT
SECTION 1. The annual minimum rent payable during the term of this
Lease shall be payable by Tenant in equal monthly installments, on or before
the first day of each month, in advance, at the office of the Landlord or at
such other place designated by Landlord, without prior demand therefore, and
without any deduction or set-off whatsoever. If the Commencement Date shall
occur upon a day other than the first day of a calendar month, Tenant shall
pay, upon the Commencement Date, the minimum rent for the resulting partial
lease year prorated on a per diem basis.
SECTION 2. Tenant waives and disclaims any present or future right to
apply any obligation of Landlord to Tenant, however incurred or created, as a
set-off against or counterclaim in any action for any payment or part payment
of rent owing hereunder (including minimum rent, percentage rent and additional
rents), and agrees that it will not claim or assert such right, set-off or
counterclaim.
ARTICLE V -- PERCENTAGE RENT
SECTION 1. As used in this Lease, the term "fiscal year" means a 12
calendar month period beginning on February 1 and ending on the following
January 31 and the term "partial fiscal year" shall mean a period beginning on
the Commencement Date (if other than February 1) and ending on the following
January 31 or a period beginning on February 1 and ending on the last day of
the term of this Lease (if other than January 31). As used in this Lease the
term "Fiscal Year" shall mean any fiscal year or partial fiscal year during the
term of this Lease. In addition to the payment of the annual minimum rent,
Tenant shall pay to Landlord in the manner, upon the conditions and at the
times hereinafter set forth, during each Fiscal Year during the term hereof, a
sum equivalent to the amount, if any, by which the percentage specified in
Article I hereof of the gross sales, as hereinafter defined, from all business
done in and from the Premises during such Fiscal Year exceeds the minimum rent
(other than that for basement storage space, if any) for such Fiscal Year.
Said percentage rent shall be payable as hereinafter provided, at the office of
the Landlord or such other place as Landlord may designate, without any prior
demand therefor, and without any set-off or deduction whatsoever.
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Percentage rent shall be due and payable in full thirty (30) days
after the end of each Fiscal Year during the term of this Lease with respect to
gross sales during said Fiscal Year. The first payment of percentage rent
shall be due and payable thirty (30) days after the end of the first Fiscal
Year for which percentage rent is due. After the first such Fiscal Year for
which percentage rental is payable, Tenant shall pay to Landlord with the
monthly minimum rental payment, as estimated percentage rent, one-twelfth
(1/12th) of ninety percent (90%) of the percentage rent paid for the
immediately prior Fiscal Year. If such immediately prior Fiscal Year was a
partial fiscal year, the monthly estimated percentage rent payments shall be
one-twelfth (1/12th) of ninety percent (90%) of the result obtained by dividing
the percentage rent for such immediately preceding partial fiscal year by the
number of days in such partial fiscal year and multiplying the resulting
quotient by 365. If, at the end of any Fiscal Year, the total amount of
estimated percentage rent paid by Tenant exceeds the total amount of percentage
rent required to be paid by Tenant for the said Fiscal Year, Tenant shall
receive a credit equivalent to such excess which shall be credited against the
next payments due hereunder. Any excess estimated percentage rental paid
during the last Fiscal Year of the lease term will be refunded to Tenant as
soon as the amount of such excess is ascertained. If, at the end of any Fiscal
Year, the total amount of estimated percentage rent paid by Tenant is less than
the total amount of percentage rent required to be paid by Tenant for said
Fiscal Year, the balance shall be due and payable in full thirty (30) days
after the end of said Fiscal Year.
SECTION 2. The term "gross sales," as used herein, means the
aggregate dollar amount of all sales of Tenant from business conducted at, upon
or from the Premises, whether such sales be evidenced by check, credit, charge
account, exchange or otherwise, without reserve or deduction for inability or
failure to collect, and shall include, but not be limited to, the amounts
received from the sale of goods, wares, merchandise, beverages and food
(including gift and merchandise certificates) and for services performed on or
at the Premises, together with the amount of all orders taken or received at
the Premises, whether such orders be filled from the Premises or elsewhere, and
whether such sales be made by means of mechanical or other vending devices in
the Premises, and shall include all deposits not refunded to purchasers. If
any one or more departments or other divisions of Tenant's business shall be
sublet by Tenant or conducted by any person, firm or corporation other than
Tenant, (without implying Landlord's consent thereto) then there shall be
included in gross sales all the gross sales of such departments or divisions,
in the same manner and with the same effect as if the business or sales of such
departments and divisions of the Tenant's business had been conducted by Tenant
itself. Gross sales shall also include proceeds of business interruption
insurance or similar insurance payable with respect to covered losses from
business done at or
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from the Premises and proceeds of employee fidelity insurance payable with
respect to covered losses from business done at or from the Premises to the
extent such proceeds represent gross sales not previously reported by the
Tenant. To the extent that any proceeds of business interruption insurance or
similar insurance are paid to Tenant on other than a "gross sales" basis, as
between Landlord and Tenant, the amount of recovery shall be recomputed to
arrive as nearly as possible at the equivalent of gross sales. Gross sales
shall be reduced by the amount of any cash refunds or allowances made on
merchandise claimed to be defective or unsatisfactory, provided that the sales
price of said merchandise shall have been included in gross sales when
originally sold. Gross sales shall not include the amount of any sales, use or
gross receipts tax imposed by any federal, state, municipal or governmental
authority directly on sales and collected from customers, provided that the
amount thereof is added to the selling price or absorbed therein and paid by
Tenant to such governmental authority. No franchise or capital stock tax and
no income or similar tax based upon income or profits as such shall be deducted
from gross sales in any event whatever. Gross sales shall not include
merchandise transferred out of the Premises and transported to another store of
Tenant or an affiliate of Tenant where such exchange of merchandise is made
solely for the convenient operation of the business of Tenant and not for the
purpose of consummating a sale which has theretofore been made at, in, or from
the Premises nor shall gross sales include merchandise returned by Tenant to
shippers or manufacturers. All sales shall be recorded on cash registers
equipped with a transaction number control or recorded on sales checks which
are numerically controlled. There shall be no adjustment to gross sales for
cash shortages.
SECTION 3. Tenant shall keep in the Premises or some other location
mutually agreed on by Landlord and Tenant a permanent accurate set of books and
records of all sales of merchandise and all revenue derived from business
conducted in the Premises during each day of the term hereof, and all
supporting records, including excise tax reports and state sales tax, business
and occupation tax and gross income tax reports and all original sales records,
cash register ribbons and sales slips or sales checks and any other pertinent
original sales records; and such pertinent records will be kept, retained and
preserved for at least three (3) years after the expiration of each Fiscal Year
or until the completion of any litigation in which they are relevant, whichever
is later. All such records, including sales tax reports, state gross income tax
reports, business and occupation tax reports and excise tax reports, shall be
open to inspection of Landlord and its agents at all reasonable times during
ordinary business hours.
SECTION 4. The acceptance by Landlord of payments of percentage rent
shall be without prejudice to the Landlord's right to an examination of the
Tenant's books and records of its gross sales and inventories of merchandise at
the Premises in order to
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verify the amount of annual gross sales received by the Tenant. Landlord may,
at any reasonable time, cause a complete audit to be made of Tenant's entire
business affairs and records relating to the Premises for the period covered by
any statement issued by the Tenant as hereinafter set forth. Such audit shall
be conducted at the location where the books and records relative thereto are
kept as above provided. If such audit shall disclose a liability for
percentage rent to the extent of two percent (2%) or more in excess of the
percentage rentals theretofore computed and paid by Tenant for such period,
Tenant shall promptly pay to Landlord the cost of said audit in addition to the
deficiency, which deficiency shall be payable in any event, and in addition,
Landlord may, at its option, terminate this Lease upon five (5) days notice to
Tenant. Any information obtained by the Landlord as a result of such audit
shall be held in strict confidence by Landlord except in any litigation or
arbitration proceedings between the parties and except further, that Landlord
may disclose such information to its mortgagees and to prospective buyers and
lenders.
ARTICLE VI - SALES REPORTS
On or before the fifteenth (15th) day of each calendar month to and
including the calendar month following the termination of the term of this
Lease, Tenant shall prepare and deliver to Landlord at the place where rent is
payable a monthly statement of gross sales during the preceding calendar month
verified by the affidavit of Tenant. On or before the thirtieth (30th) day
after the end of each Fiscal Year, Tenant shall prepare and deliver to Landlord
at the place where rent is payable a yearly statement of gross sales prepared
and certified by a certified public accountant as being full, true, and correct
and as having been prepared in accordance with generally accepted accounting
principles consistently applied, such statement to be delivered whether or not
percentage rent is payable.
ARTICLE VII -- ADDITIONAL RENT
SECTION 1. In addition to the minimum rent and percentage rent, all
other payments required of Tenant pursuant to the provisions of this Lease
shall be deemed, for the purpose of securing the collection thereof, to be
additional rent due hereunder whether or not the same be designated as such,
including, but not limited to, payments for Utilities (XIII), Common Areas (X),
Taxes (XIV), Insurance (XVII) and Advertising and Promotion (XV). Landlord
shall have the same rights and remedies upon Tenant's failure to pay the same
as for non-payment of the minimum rent, and shall have such rights upon
Tenant's failure to pay percentage rent or estimate thereof as well. All such
payments of additional rent shall, unless otherwise provided, be paid in
monthly installments with the minimum rent payments (and estimated percentage
rent, if any). The monthly payments shall be based, in each case, on
Landlord's reasonable estimate of such costs made at
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the beginning of each Fiscal Year; the payments for any partial month shall be
pro-rated. If, at the end of any Fiscal Year, the amount paid by Tenant is
less than its share, the balance, as shown on Landlord's statement, shall be
paid on or before the first day of the following month, and if the amount paid
by Tenant is greater than its share, the excess, as shown on said statement,
shall be credited against the next payments (whether of rent or otherwise) due
hereunder. All provisions dealing with abatement of rent are to be construed
to refer to abatement of minimum rent only, and not abatement of any other
payment required hereunder.
SECTION 2. If Tenant shall fail to pay any rent within five (5) days
after the due date, Tenant shall be obligated to pay a late payment charge
equal to the greater of Fifty and no/l00 Dollars ($50.00) or five percent (5%)
of any rent payment not paid when due to reimburse Landlord for its additional
administrative costs. In addition, all rent and other payments required of
Tenant under the provisions of this Lease shall bear interest commencing five
(5) days after the due date of each payment and continuing until the date
actually paid by Tenant, at a rate equal to three (3) percentage points over
the prime rate published by Norwest Bank Minnesota, N.A., at the time the
payment was due or the maximum rate permissible by law, whichever is less.
ARTICLE VIII
CONSTRUCTION AND PREPARATION OF LEASED PREMISES
SECTION 1. Tenant agrees, that any remodeling of the interior and
exterior of the Premises shall be at Tenant's sole cost and expense and be in
accordance with plans and specifications approved by Landlord. Plans and
specifications for improvements shall be submitted for approval promptly after
execution of the Lease, and shall meet the requirements for "Tenants Work" set
forth in "Exhibit C." Tenant shall complete said work, complete installation
of fixtures and equip the Premises for Tenant's occupancy prior to the
Commencement Date. Unless otherwise specifically provided herein, Tenant is
taking the Premises "AS IS" and Landlord is under no obligation to make any
structural or other alterations, decoration, additions or improvements in or to
the Premises. By entering the Premises and commencing work, Tenant shall be
deemed to have inspected the Premises and to have accepted same.
SECTION 2. Tenant agrees that all workers of Tenant or any of
Tenant's contractors or subcontractors entering upon the Premises for
performance of Tenant's Work or for any subsequent repairs or alterations will
be union workers.
ARTICLE IX - USE OF PREMISES
SECTION 1. The Premises may be used and occupied by Tenant under
Tenant's trade name solely for the retail sale of merchandise
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falling within the classifications specified in Article I hereof. Tenant shall
not use or permit the Premises to be used for any other purpose or purposes or
under any other trade name without the prior written consent of Landlord.
Tenant shall not sell, offer to sell, or display any item or items of
merchandise not within such classifications. Tenant shall at all times operate
in and promote the Premises as a first quality retail establishment in
accordance with the standards of the shopping center as established by
Landlord. In no event shall Tenant in any manner operate in or promote the
Premises as a "discount," "off-price," "below market" or similar retailer. The
foregoing provision shall not prohibit Tenant from conducting periodic
promotional, seasonal or clearance sales of limited duration in the Premises.
Tenant agrees to utilize the entire Premises, fully stocked and adequately
staffed, during the entire term of this Lease and any renewal thereof, and to
conduct its business at all times in good faith, in a high grade and reputable
manner, and in such manner as will produce the maximum amount of rent from the
Premises. Tenant shall promptly comply with all laws, ordinances,
governmental orders and regulations, and insurance company requirements
affecting the Premises and the cleanliness, safety, use and occupation thereof.
Tenant shall stock in the Premises only such merchandise as Tenant intends to
offer for sale at retail in the Premises. Tenant acknowledges that it is
Landlord's intent that the shopping center be operated in a manner which is
consistent with the highest standards of decency and morals prevailing in the
community which it serves. Toward that end, Tenant agrees that it will not
sell, distribute, display or offer for sale any item which, or conduct its
business in any manner which, in Landlord's good faith judgment is inconsistent
with the quality of operation of the shopping center or may tend to injure or
detract from the moral character or image of the shopping center within such
community. Without limiting the general prohibition against other uses, it is
expressly agreed that Tenant will not use the Premises for the sale of liquor,
prescription drugs, groceries or food items (except as hereinbefore
specifically permitted), pornographic materials, drug-related paraphernalia or
any illegal activity.
SECTION 2. No provision of this Lease is intended to grant an
exclusive right to conduct a particular business, sell any particular
merchandise or offer any particular service within the shopping center.
SECTION 3. The Premises shall be used only for business and commercial
purposes, and no industrial, manufacturing, packaging, or processing activities
shall be conducted therein. Tenant shall not use the Premises for any purpose
which increases the rate of premium on or invalidates any policy of insurance
covering the shopping center, the operation thereof or any appurtenances
thereto; nor conduct any auction, fire sale, closing-out or bankruptcy sales in
or about the Premises; nor obstruct the sidewalks or common areas or use the
same for business or display
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purposes; nor abuse any part of the shopping center; nor use plumbing for any
purpose other than that for which constructed; nor make or permit any noise or
odor objectionable to the public, to other occupants of the building or the
Landlord to emit from the Premises; nor create or permit a nuisance thereon;
nor do any act tending to injure the reputation of the shopping center; nor
place nor permit any radio or television antenna, loudspeaker or sound
amplifier, or any phonograph or other devices similar to any of the foregoing
on the roof or outside of the building or at any place where the same may be
seen or heard outside of the Premises; nor use or permit to be used entrances
other than those specified by Landlord for delivery or pick-up of merchandise
or supplies to or from the Premises, or permit trucks or other delivery
vehicles while being used for any such purpose to be parked at any place except
at such facilities as are specifically provided for such purpose; nor use or
permit the use of any portion of the Premises as sleeping quarters; nor install
or operate in the Premises any mechanical, self-operating or automatic vending
machines without Landlord's prior written approval; nor keep or permit the
keeping of any animal in or about the Premises; nor distribute or display
handbills, posters or other advertising of political or religious nature on or
about the Premises or the sidewalks, streets, passageways or public areas
within or surrounding the shopping center.
SECTION 4. Tenant shall keep the Premises clean, safe, and free from
rubbish and dirt at all times. Tenant shall store all trash and garbage and
make the same available for regular pick-up and cartage in accordance with such
rules regarding trash and garbage as Landlord may from time to time establish.
ARTICLE X
OPERATION AND MAINTENANCE OF PARKING RAMP AND OTHER COMMON AREAS
SECTION 1. As used in this Lease, the term "common areas" shall mean
all of the shopping center improvements except that area which is leased or
held for lease to tenants, and shall include but shall not be limited to,
access roads, walkways, driveways, sidewalks, parking areas, loading docks and
areas, package pick-up stations, courts, ramps, elevators, escalators,
landscaped and planting areas, stairways, roof, water, sewer and other utility
pipes and conduits serving the shopping center, comfort stations and all other
areas and improvements which may be provided from time to time by Landlord for
the general use in common of the tenants or customers.
SECTION 2. Landlord shall have the right to restrict employees
generally from parking areas in the parking ramp designated exclusively for
customers or others, to enforce parking charges, and to discourage non-customer
parking. Upon reasonable request by Landlord, Tenant shall furnish a complete
list of the names of the Tenant's employees at the Premises who have
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automobiles and of the state license numbers of their automobiles,
respectively, and the state license number of all motor vehicles operated by
Tenant. Revenues derived from the parking ramp shall be applied to offset the
expenses of management, operation and maintenance thereof. If said revenues
exceed said expenses, the net revenue shall belong to Landlord.
SECTION 3. Landlord shall manage, operate and maintain the parking
ramp and all other common areas and facilities within the shopping center. The
manner in which such common areas and facilities shall be managed, operated and
maintained and the expenditures therefor shall be at the sole discretion of
Landlord. Landlord shall have the right to use the common areas for displays,
promotions, programs, games, and other uses which may be of interest to all or
part of the general public. Any fees or charges derived from such uses of the
common areas (other than parking) shall be added to the promotional Fund to
defray the cost of the event from which such fees were derived or other events
or promotions.
All common areas and facilities not within the Premises which Tenant
may be permitted to use and occupy, are to be used and occupied under a
revocable license, and if the amount of such areas be diminished, Landlord
shall not be subject to any liability nor shall Tenant be entitled to any
compensation or diminution or abatement of rent, nor shall such diminution of
such areas be deemed constructive or actual eviction.
SECTION 4. Tenant agrees to pay, as additional rent, a sum equal to
Tenant's proportionate share of all costs and expenses of every kind and
nature, whether foreseen or unforeseen, paid or incurred by Landlord in
managing, operating and maintaining the shopping center and Tenant's
proportionate share of all costs and expenses paid or incurred by Landlord for
the joint benefit of all tenants, including, but not limited to personal
property or use taxes; fees for permits or licenses; landscaping, gardening and
planting; cleaning; painting (including line painting); decorating; paving;
lighting; sanitary control; policing, security guards and patrols; music and
intercom systems; maintenance, installing and renting of signs; the net
expense, if any, of managing, operating, and maintaining the parking ramp;
removal of snow, trash, garbage and other refuse; heating, ventilating and air
conditioning the common areas; costs and expenses in connection with meeting
federal, state or local environmental or energy standards; fire protection;
water and sewage and other utility charges; the cost of all types of insurance
carried by Landlord covering the shopping center, including, without
limitation, public liability including liability for false arrest, property
damage, automobile coverage, fire and extended coverage, vandalism and
malicious mischief and all broad form coverage, insurance for costs of repair
and replacement of walls, roofs and other structural components, fidelity bonds
on employees, worker's compensation, rent loss,
<PAGE> 17
13
plate glass, signs and any other insurance; all costs borne by Landlord which,
though of a nature insured against under insurance policies maintained by
Landlord, are not covered by said policies due to "deductible" provisions
therein; all costs and expenses of maintaining, repairing and replacing paving,
curbs, sidewalks, walkways, roadways, parking surfaces, landscaping, drainage,
lighting and all utility systems other than those exclusively serving a single
leased Premises (including utility lines, pipes, and conduits serving the
center generally), maintenance and depreciation of all heating, ventilating and
air conditioning equipment serving the common areas and the cost of maintaining
and repairing the same; depreciation of and/or rental charges for machinery and
equipment used in maintaining and operating the common areas; all salaries and
compensation of on site personnel connected with such operation, maintenance
and management; to the total of which costs and expenses shall be added an
amount equal to fifteen percent (15%) thereof in payment of all administrative
costs of Landlord in relation thereto. Landlord may cause any or all of said
services to be provided by an independent contractor or contractors, the cost
of which shall likewise be treated as a common expense.
Tenant's proportionate share of such costs shall be a fraction, the
numerator of which is the gross leasable area of the Premises as specified in
Article I or as redetermined pursuant to Article II and the denominator of
which is the gross leasable area of the shopping center.
ARTICLE XI -- REPAIRS
SECTION 1. Landlord shall maintain the foundations, exterior walls
(except plate glass or other breakable material used in structural portions)
and roof of the shopping center in good repair, ordinary wear and tear
excepted. Except for costs of routine maintenance and repair, any costs of
such maintenance and repairs which is not covered by insurance shall be borne
by Landlord. If the need for any such repair is directly or indirectly
attributable to or results from the business activity being conducted within
the Premises or becomes necessary by reason of the negligence of Tenant, its
agents, servants, employees, or anyone else for whose acts Tenant is
responsible or by reason of anyone illegally entering in or upon the Premises,
and if such repair is caused by a risk which cannot be covered by standard fire
and extended coverage insurance and is not covered by other insurance, Tenant
agrees to reimburse Landlord for all costs and expenses incurred by Landlord
with respect to any such repair. Landlord shall commence repairs it is required
to perform as soon as, reasonably practicable after receiving written notice
from Tenant of the necessity for such repairs. Landlord shall not be obligated
to make repairs, replacements or improvements of any kind to the Premises, or
any equipment, facilities or fixtures contained
<PAGE> 18
14
therein or appurtenant thereto, even if such equipment, facilities, or fixtures
are located outside the Premises.
SECTION 2. Tenant, at its own expense, shall maintain the Premises at
all times in good order, condition and repair of equal quality with the
original work, ordinary wear and tear excepted, and in a clean, sanitary and
safe condition in accordance with all applicable laws, ordinances and
regulations; including, without limitation, all plumbing, sewage, ventilating
and electrical systems exclusively serving the Premises, doors, windows, floors
and floor coverings, interior walls and all interior painting and decorating,
and all equipment, facilities, fixtures and appurtenances. Tenant shall permit
no waste, damage, or injury to the Premises. If Tenant refuses or neglects to
commence necessary repairs within a reasonable period (no longer than five (5)
consecutive days) after written request, or does not adequately complete such
repairs within a reasonable time thereafter, Landlord may make the repairs
without liability to Tenant for any loss or damage that may occur to Tenant's
stock or business by reason thereof, and if Landlord makes such repairs, Tenant
shall pay to Landlord, on demand, the costs thereof.
SECTION 3. Tenant shall replace forthwith, at its own cost and
expense, any cracked or broken glass with glass of the same quality, including
plate glass or glass or other breakable materials used in structural portions,
and in any interior and exterior windows and doors in the Premises.
ARTICLE XII - INSTALLATIONS, ALTERATIONS AND SIGNS
SECTION 1. Tenant shall not erect or install any exterior or interior
window, door, floor, or hanging signs, advertising media or window or door
lettering or placards or other signs without Landlord's written consent.
SECTION 2. Tenant shall not make any repairs, alterations or
additions to the interior or exterior of Premises or make any contract therefor
without first procuring Landlord's written consent and delivering to Landlord
the plans and specifications and copies of the proposed contracts and necessary
permits, and shall furnish such indemnification against liens, costs, damages
and expenses and such insurance and other assurances as may be required by
Landlord. All permanent alterations, additions, improvements and fixtures,
other than trade fixtures, which may be made or installed by either of the
parties hereto upon the Premises shall, at the termination of this Lease become
the property of Landlord and shall remain upon and be surrendered with the
Premises as a part thereof, without damage or injury and without compensation
or credit to Tenant, unless Landlord, at its option, requires the removal of
any such alterations, additions, improvements or fixtures as provided in
Article XXVI, Section 3 hereof. All non-permanent alterations, additions,
improvements and fixtures which may be made or installed
<PAGE> 19
15
by Tenant upon the Premises shall remain at all times the property of the
Tenant and shall be removed by Tenant upon termination of this Lease. At the
time Tenant applies for Landlord's written consent to any alterations,
additions, improvements and fixtures, Landlord shall determine, in its
reasonable discretion, which are to be deemed permanent and which are
non-permanent for purposes hereof.
SECTION 3. Tenant covenants not to suffer any mechanic's lien to be
filed against the Premises or the shopping center by reason of any work, labor,
services or materials performed at or furnished to the Premises, to Tenant, or
to anyone holding the Premises through or under Tenant. If such mechanic's
lien shall at any time be filed, Tenant shall forthwith cause the same to be
discharged of record by payment, bond, order of a court of competent
jurisdiction or otherwise, but Tenant shall have the right to contest any and
all such liens. If Tenant shall fail to cause such lien to be discharged
within thirty (30) days after being notified of the filing thereof and before
judgment or sale thereunder, then, in addition to any other right or remedy
Landlord may, but shall not be obligated to, discharge the same by paying the
amount claimed to be due or by bonding or other proceeding deemed appropriate
by Landlord, and the amount so paid by Landlord and/or all costs and expenses
incurred by the Landlord in procuring the discharge of such lien, including
reasonable attorney's fees, shall be deemed to be additional rent for the
Premises and shall be due and payable by Tenant to Landlord on demand. Nothing
contained in this Lease shall be construed as a consent on the part of Landlord
to subject Landlord's estate in the Premises or any portion of the shopping
center to any lien or liability under the lien laws of the State of Minnesota.
ARTICLE XIII - UTILITIES
SECTION 1. Tenant shall pay for all heating, air conditioning,
electricity, gas, water and sewer charges, waste removal and other services
used in the Premises. Tenant shall pay for all such services from the time it
has access to the Premises pursuant to the terms of Exhibit C hereof. In the
event that heating, air conditioning or other services such as, but not
necessarily limited to, electricity, water, or trash and/or garbage compaction
and/or removal are provided to the Premises from a system also serving other
Premises in the shopping center, Tenant shall pay its share of operating,
maintaining and depreciation of such system as billed monthly by Landlord.
Tenant's share of such costs shall be the sum bearing the same relationship to
said costs as the gross leasable area of the Premises bears to the gross
leasable area of all of the Premises served by the system, or at Landlord's
sole option, Tenant's monthly share for any or all such services may be
determined by a study and opinion expressed by a professional engineer or other
consultant selected by Landlord. Such study shall determine the amount to be
billed to each tenant based upon
<PAGE> 20
16
usage estimates for each tenant and any other factors deemed relevant to
equitably apportioning the usage of the services and shall be billed at the
rates established by the supplier of such services for Tenant's usage. Such
computation may be changed from time to time during the term of the Lease as
Tenant's or other tenants' loads may change.
SECTION 2. Tenant shall keep any air conditioning and heating systems
under its control operating during business hours at levels sufficient to
satisfy the requirements of the Premises.
SECTION 3. Landlord shall not be liable in damages or otherwise if
the furnishing by Landlord or by any other supplier of any utility or other
service to the Premises shall be interrupted or impaired by fire, accident,
riot, strike, act of God, the making of repairs or improvements or by any
causes beyond Landlord's control, nor shall it constitute a constructive or
actual eviction nor cause abatement of minimum, percentage or additional rents.
ARTICLE XIV - TAXES
SECTION 1. During each calendar year during any part of which the term
of this Lease is in effect, Tenant shall pay to Landlord Tenant's share of all
taxes coming due and payable with respect to the land, buildings and
improvements comprising the shopping center. In addition, Tenant shall pay to
Landlord Tenant's share of annual installments of special assessments coming
due and payable with respect to the land, buildings and improvements comprising
the shopping center during each calendar year during any part of which the term
of this Lease is in effect. Tenant's share of such taxes and annual
installments of special assessments (including interest) shall be a fraction,
the numerator of which shall be the gross leasable area of the Premises as
specified in Article I or as redetermined pursuant to Article II and the
denominator of which shall be the gross leasable area of the shopping center,
excluding any portions separately taxed or assessed and for which such taxes
and special assessments (including interest) are directly allocated to the
tenants thereof. For the calendar years in which this Lease commences or
terminates, Tenant's liability for the amounts payable pursuant to this
paragraph shall be subject to a pro rata adjustment based upon the number of
days of said calendar year during which the term of this Lease is in effect.
Tenant shall pay the amounts payable pursuant to the preceding
paragraph in equal monthly installments due on the first (1st) day of each
month during each calendar year during the term of this Lease. Until the exact
amount payable during any calendar year is known, the monthly installments
shall be based on Landlord's estimate. As soon as is reasonably practicable
after the commencement of each calendar year during the term of the Lease,
Landlord will furnish to Tenant a statement showing the computation
<PAGE> 21
17
of the exact amount payable during said year. The monthly installments due
thereafter shall be in such amount as is required so that the amount payable
will be fully paid in equal installments over the remaining portion of said
calendar year. Landlord's and Tenant's obligations under this Article shall
survive the expiration of this Lease.
In the event Landlord is required under any mortgage covering the
shopping center to escrow taxes and annual installments of special assessments,
Landlord may, but shall not be obligated to, use the amount required to be so
escrowed as a basis for determining the amount of the monthly installments due
from Tenant hereunder.
SECTION 2. Tenant shall also reimburse Landlord for rental taxes, if
any, paid by Landlord on rentals from the Premises.
SECTION 3. Tenant shall pay all personal property and other taxes on
its property in the Premises.
SECTION 4. All costs and expenses incurred by Landlord, including
attorney's fees, in contesting the amount of any taxes or special assessments
shall be a common area expense for the purpose of Article X, Section 4 hereof.
ARTICLE XV - ADVERTISING AND PROMOTION
SECTION 1. Landlord shall establish a Promotional Fund for the
shopping center. The uses of the Promotional Fund shall include, but will not
necessarily be limited to, special and seasonal events, shows, displays, signs,
decor packages, community relations efforts, advertising, promotional
literature, research, tenant education and motivation and other activities
designed to attract customers to the shopping center and the hiring of a
promotional director if deemed appropriate or necessary by Landlord. Landlord
shall have the exclusive management, direction and control of all advertising,
promotion and public relations for the shopping center, including without
limitation, expenditures from the Promotional Fund. Landlord shall provide to
all tenants, at least once a year, a statement of the Promotional Fund
expenditures. Tenant may, at Tenant's cost, examine Landlord's books and
records relating to the Promotional Fund. Such examination shall be made
during normal business hours upon reasonable prior written notice to Landlord.
Landlord shall not be obligated to incur any expenses for the promotion of the
shopping center unless and until funds for the payment thereof are available in
the Promotional Fund.
As Tenant's contribution toward the advertising, promotion, public
relations and administrative expenses relating to the promotion of the shopping
center, Tenant shall pay to Landlord an amount equal to the lesser of $1.50 per
square foot of gross leasable area of the Premises, adjusted as provided below,
or one
<PAGE> 22
18
percent (1%) of Tenant's "sales Breakpoint" as set forth in Item 9 of the Data
Sheet for each lease year or partial lease year of the lease term, which sum
will be payable in equal monthly installments in advance on the first day of
each calendar month of the lease term. Should one percent (1%) of Tenant's
gross sales, as required to be reported following the end of each lease year or
partial lease year pursuant to Article VI, above, be more than the total
contribution to the Promotional Fund required by the above provisions of this
section for such lease year or partial lease year, then Tenant will pay to
Landlord, as additional rent an additional contribution sufficient to make
Tenant's total contributions to the Promotional Fund pursuant to this section 1
during such lease year or partial lease year equal to one percent (1%) of
Tenant's gross sales during such lease year or partial lease year, which
payment will accompany the statement of gross sales referred to above. In no
event, however, shall Tenant's contribution for any lease year exceed $1.50 per
square foot of gross leasable area of the Premises, adjusted as provided
herein. For each lease year commencing after December 31, 1989, Tenant's
contribution per square foot of gross leasable area of the Premises shall not
exceed the amount derived by multiplying $1.50 by a fraction, the numerator of
which is the "price index" (as defined in Article XXXIV, Section 15) for
January of the calendar year during which such lease year begins, and the
denominator of which is the price index for January, 1989. The failure of any
other tenant to contribute to the Promotional Fund will not affect Tenant's
obligations hereunder.
SECTION 2. In addition to the foregoing, Tenant shall spend the
amount set forth in Item 10 of the Data Sheet on advertising and promotion of
the opening of its business in the Premises within sixty (60) days of the
Commencement Date. The media and method of such advertising and promotion
shall be as determined by Tenant, but must in any event be in conformity with
the standards in the Tenant Advertising Criteria rules established by Landlord
pursuant to Article XXXII. Tenant shall provide Landlord with an accounting of
Tenant's expenditures pursuant to this section 2, prepared in accordance with
generally accepted accounting principles, within ninety (90) days of the
Commencement Date. If such accounting shall indicate that Tenant has expended
less than the amount required to be expended by this section 2, then Tenant
shall pay Landlord for deposit into the Promotional Fund, on demand, the amount
of the deficiency. In lieu of the foregoing, Tenant may elect, by notice to
Landlord given not later than the Commencement Date, to pay to Landlord the sum
set forth in Item 10 of the Data Sheet, to be used in a manner determined in
the sole discretion of Landlord, to advertise and promote the opening of
Tenant's business in the shopping center. Said sum shall be paid to Landlord
not later than the Commencement Date.
SECTION 3. In addition, Tenant agrees that during each lease year or
partial lease year it will spend on advertising and
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promotion of its business in the Premises an amount at least equal to one
percent (1%) of its gross sales during said lease year or partial lease year.
The media and method of such advertising and promotion shall be of Tenant's own
choosing but in any event must be in conformity with the standards in the
Tenant advertising Criteria rules established by Landlord pursuant to Article
XXXII. Tenant shall provide Landlord an accounting of such expenditures
prepared in accordance with generally accepted accounting principles and such
shall be made part of Tenant's annual report of gross sales furnished pursuant
to Article VI. If such accounting shall indicate that Tenant has expended less
than the amount required to be expended by this Section 3, then Tenant shall
pay to Landlord at the time the annual statement of gross sales is required to
be delivered, for deposit into the Promotional Fund, the amount of the
deficiency. Notwithstanding the foregoing, Tenant's expenditures for
advertising and promotion pursuant to this section 3 in the third and
succeeding lease years shall not be less than the amount required to be
expended by Tenant in the second lease year.
Amounts payable by Tenant pursuant to sections 1 and 2 of this Article
XV shall not be deemed to be amounts expended for advertising within the
meaning of this Section 3, but all expenditures made by Tenant for advertising
in connection with Tenant's other stores, if any, within a fifteen (15) mile
radius from the nearest perimeter boundary of the shopping center (provided
such advertising in each instance included the name of the shopping center and
its logo and encompassed or was distributed in the trade area of the shopping
center) may be applied to Tenant's obligation for that lease year or partial
lease year pursuant to this Section 3.
SECTION 4. In lieu and instead of the Promotional Fund, Landlord
shall have the right and option to form a Merchants Association; and in such
case, Tenant shall become a member of the Merchants Association (as soon as the
same has been formed) and Tenant agrees to remain a member in good standing of
said Association and Landlord agrees to promptly pay to said Association
Tenant's promotional contribution as and when actually paid to Landlord by
Tenant.
SECTION 5. The shopping center name is subject to change by Landlord.
Tenant agrees to refer to the shopping center by name in designating the
location of the Premises in all newspaper or other advertising, stationery,
other printed material and all other references to the location of the
Premises, and to include the address and identity of its business activity in
the Premises in all advertisements made by Tenant in which the address and
identity of any other local business activity of like character conducted by
Tenant shall be mentioned.
<PAGE> 24
20
SECTION 6. Except as provided in section 5 above, Tenant shall not
use as part of its name or style, or publish, advertise or use in any
solicitation or otherwise the name "Calhoun Square" or the words "Calhoun
Square" or any logo thereof without the prior written approval by Landlord of
the time, place and manner of such publication or use. Tenant further agrees
that after the date of termination of this lease, it will not, nor will any
person, firm or corporation which controls or is controlled by Tenant, operate
under or use in any manner any name which includes the name "Calhoun Square" or
any logo thereof. The prohibitions in this section shall apply as well to any
future name for the shopping center which may be selected by Landlord.
ARTICLE XVI - INDEMNITY
SECTION 1. Tenant agrees to defend, pay, indemnify and save harmless
Landlord (and/or any fee owner or ground or underlying lessor of the shopping
center or any part thereof) from and against any and all claims, demands,
suits, actions, proceedings, orders, decrees, judgments and damages of every
kind and nature, and from and against all costs and expenses, including
reasonable attorney's fees, arising out of or on account of any occurrence in,
upon, at or from the Premises, or occasioned wholly or in part through the use
and occupancy of the Premises or any improvements therein or appurtenances
thereto, or from the conduct of or management of the business conducted by
Tenant in the Premises, or from any breach or default on the part of Tenant in
the performance of any covenant or agreement on the part of Tenant to be
performed pursuant to the terms of this Lease, or from any act or omission or
negligence of Tenant, its agents, contractors, employees, sublessees,
concessionaires or licensees, or others for whose acts Tenant is responsible in
or about the Premises, or its appurtenances or any common areas of the shopping
center. In case of any action or proceeding brought against Landlord by reason
of any such claim, upon notice from Landlord, Tenant covenants to defend such
action or proceeding by counsel satisfactory to Landlord.
SECTION 2. Tenant and all those claiming by, through or under Tenant
shall keep their property in and shall occupy and use the Premises and any
improvements therein and appurtenances thereto and all portions of the shopping
center solely at their own risk; Tenant and all those claiming through Tenant
hereby release Landlord, to the full extent permitted by law, from all claims
of every kind, including loss of life, personal or bodily injury, damage to
merchandise, equipment, fixtures or other property or damage to business or for
business interruption, arising, directly or indirectly, out of or on account of
such occupancy and use or resulting from any present or future condition or the
state of repair thereof. Landlord shall not be responsible or liable for
damages at any time to Tenant, or to those claiming through Tenant, for any
loss of life, bodily or personal injury, damage to property or business, or for
business interruption that may be occasioned by
<PAGE> 25
21
the acts, omissions or negligence of any other persons, or any other tenants or
occupants of the shopping center. Landlord shall not be responsible or liable
for damages at any time for any defects, latent or otherwise, in any buildings
or improvements in the shopping center or any of the equipment, machinery,
utilities, appliances or apparatus therein, nor shall Landlord be responsible
or liable for damages at any time for loss of life, personal or bodily injury
or damage to any property or business of Tenant or those claiming through
Tenant, caused by or resulting from the bursting, breaking, leaking, running,
seeping, overflowing or backing up of water, steam, gas, sewage, snow or ice in
any part of the Premises, or caused by or resulting from acts of God or the
elements, or resulting from any defect or negligence in the occupancy,
construction, operation or use of any buildings or improvements in the shopping
center, including the Leased Premises or any of the equipment, fixtures,
machinery, appliances or apparatus therein. Tenant expressly acknowledges that
all of the foregoing provisions of this Article shall apply and become
effective from and after the date Landlord shall deliver possession of the
Premises to Tenant for installation of Tenant's improvements or otherwise.
ARTICLE XVII - INSURANCE
SECTION 1. Landlord shall procure such fire insurance and extended
coverage, sprinkler leakage insurance, rent loss insurance, structural repair
and maintenance insurance and other insurance Landlord may deem advisable or as
required by Landlord's mortgagee on all improvements constructed by Landlord
provided, however, that Tenant shall reimburse Landlord for Tenant's share of
the premiums for all such insurance. Tenant's share of such costs shall be
based on the ratio the gross leasable area of the Premises bears to the gross
leasable area in the shopping center (or such lesser amount of the gross
leasable area in the shopping center as may be covered by such insurance).
Landlord may, at its option, bill the portion of the insurance cost
attributable to the common areas together with other common area expenses,
pursuant to Article X hereof. In the event of damage to or destruction of the
shopping center or any part thereof due to risks which can be insured by
standard fire and extended coverage insurance or are covered by other insurance
maintained by Landlord, all claims of Landlord against Tenant, its agents,
employees or servants for any such damage or destruction, whether or not caused
by the negligence of anyone, are hereby waived by Landlord.
SECTION 2. Tenant agrees to secure and keep in force from and after
the date Landlord shall deliver possession of the Premises to Tenant and
throughout the Lease Term, at Tenant's own cost and expense:
a. Comprehensive or Commercial General Public Liability
Insurance on an occurrence personal
<PAGE> 26
22
injury and property damage basis with a minimum limit of
liability in an amount of Two Million Dollars
($2,000,000), or such greater amount as may be required
by Landlord from time to time, including water damage
and sprinkler leakage legal liability; which insurance
shall contain a contractual liability endorsement
covering the matters set forth in Article XVI hereof;
b. "All Risk" fire and extended coverage insurance in an
amount adequate to cover the full replacement value of
all of Tenant's leasehold improvements and of any work
done by Landlord at Tenant's expense and of all fixtures
and contents in the Premises in the event of a fire or
other casualty;
c. Broad Form Boiler and Machinery Insurance on all air
conditioning equipment, boilers and other pressure
vessels or systems, whether fired or unfired, installed
by or for the use of Tenant in, adjoining, above or
beneath the Premises; and if said objects and the damage
that may be caused by or result from them are not
covered by Tenant's all risk insurance mentioned in
subdivision b of this Section, such Boiler and Machinery
Insurance shall be in amounts specified by Landlord from
time to time.
d. Plate Glass Insurance covering all plate glass in the
Premises;
e. Such additional insurance during construction as is
required by Exhibit "C" of this Lease.
The insurance coverages set forth in this Section shall apply only to
Tenant's operations in the shopping center and separate additional coverage
shall be procured for Tenant's other locations, if any.
SECTION 3. All policies of insurance procured by Tenant shall:
a. Be issued by insurance companies reasonably acceptable
to Landlord;
b. Be written as primary policies not contributing with and
not in excess of coverage that Landlord may carry;
c. All Comprehensive General Liability Insurance procured
by Tenant under this section shall be issued for the
benefit of Landlord and Tenant and,
<PAGE> 27
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at Landlord's request, its mortgagee(s) and
ground lessor(s), as their respective interests may
appear;
d. Contain endorsements providing as follows: (i)
that such insurance may not be materially changed,
amended, canceled or allowed to lapse with respect to
Landlord except after twenty (20) days' prior written
notice from the insurance company to Landlord, sent
by registered mail, and (ii) that Tenant be solely
responsible for the payment of all premiums under
such policy and that Landlord shall have no
obligation for the payment thereof notwithstanding
that Landlord is or may be named as an insured.
The original policy or policies, or duly executed certificates for the
same, together with reasonably satisfactory evidence of payment of the premium
thereof shall be delivered to Landlord on or before the day Tenant begins
Tenant's Work under Exhibit "C" and upon renewals of such policies not less
than twenty (20) days prior to the expiration of the term of any such coverage.
The minimum limits of any insurance coverage required herein to be carried by
Tenant shall not limit Tenant's liability under Article XVI hereof.
SECTION 4. All policies procured by either Landlord or Tenant
pursuant to this Article shall contain an endorsement containing an express
waiver of any right of subrogation by the insurance company against Landlord or
Tenant, whichever the case may be (whether named as an insured or not). This
section shall not be construed as a waiver by either Landlord or Tenant of any
rights either may have in the event of a loss exceeding applicable insurance
coverage, said rights being specifically reserved except as they may be
modified by other provisions of this Article or any other Article of this
Lease.
SECTION 5. Tenant shall not carry a stock of goods or do anything in
or about the Premises which will in any way tend to increase insurance rates on
the Premises or the building in which the same are located without Landlord's
prior written consent. If Landlord shall consent to such use, Tenant agrees to
pay as additional rental any increase in insurance premiums resulting from the
business carried on in the Premises by Tenant. Tenant shall, at its own
expense, comply with the requirements of insurance underwriters and insurance
rating bureaus and governmental authorities having jurisdiction.
ARTICLE XVIII - ACCESS TO PREMISES
Landlord shall have the right to enter the Premises at all reasonable
hours for the purpose of inspecting the same or making repairs, additions or
alterations thereto or to the building in
<PAGE> 28
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which the same are located, or for the purpose of exhibiting the same to
prospective tenants, purchasers or others. Landlord shall not be liable to
Tenant in any manner for any expense, loss or damage by reason thereof, nor
shall the exercise of such right be deemed an eviction or disturbance of
Tenant's use or possession. If Tenant or Tenant's employees shall not be
personally present to permit an entry into the Premises when an emergency or
casualty occurs, Landlord may enter the same by the use of force or otherwise
without rendering Landlord liable therefor and without in any manner affecting
Tenant's obligations under this Lease. Tenant shall be solely responsible for
the control of access to, and the security of, the Premises and all property
located within the Premises.
ARTICLE XIX - DAMAGE BY FIRE OR OTHER CASUALTY
SECTION 1. In case the building in which the Premises are situated
shall be partially or totally destroyed by fire or other casualty which can be
covered by standard fire and extended coverage insurance or which is covered by
other insurance so as to become partially or totally untenantable, the same
shall be repaired as speedily as possible at the expense of Landlord to the
extent of the insurance proceeds, unless Landlord shall elect not to rebuild as
hereinafter provided, and a just and proportionate part of Tenant's rent shall
be abated until the Premises are so repaired based upon the time and the extent
the Premises are untenantable.
SECTION 2. In case the building in which the Premises are situated,
including common areas, shall be destroyed or so damaged by fire or other
casualty as to render more than fifty percent (50%) thereof untenantable, or in
case of any destruction or damage not covered by Landlord's insurance, Landlord
may, if it so elects, rebuild or restore said building to good condition within
a reasonable time after such destruction or damage or may, at its election, by
notice in writing within ninety (90) days after such destruction or damage,
terminate this Lease. If Landlord elects to rebuild or restore said building,
it shall within said ninety (90) day period, give Tenant notice of its
intention to do so and proceed with the rebuilding and restoration as promptly
as may be reasonable and a just and proportionate part of Tenant's rent shall
be abated until the Premises are repaired, based upon the time and the extent
the Premises are untenantable. In the event that the Premises are totally
destroyed and minimum rent is totally abated for a period of time, the term of
this Lease shall be extended for a period equal to the period of such
abatement.
SECTION 3. In no event in the case of any such destruction shall
Landlord be required to repair or replace Tenant's stock in trade, leasehold
improvements, fixtures, furniture, furnishings or floor coverings and
equipment. Tenant covenants to make such repairs and replacements.
<PAGE> 29
25
ARTICLE XX - EMINENT DOMAIN
SECTION 1. If the whole of the Premises shall be taken by any public
authority under the power or threat of eminent domain, then the term of this
Lease shall cease as of the day possession shall be taken by such public
authority, and the rent shall be paid up to that date with a proportionate
refund by Landlord of such rent as shall have been paid in advance.
SECTION 2. In the event more than ten percent (10%) in area of the
land underlying the shopping center shall be so taken, the Landlord shall have
the right to terminate this Lease by giving Tenant written notice of
termination within thirty (30) days after the taking of possession by such
public authority.
SECTION 3. If less than all but more than twenty-five percent (25%)
of the Premises shall be so taken, Tenant shall have the right either to
terminate this Lease, or subject to Landlord's right of termination as set
forth in Section 2 of this Article, to continue in possession of the remainder
of the Premises upon notice in writing to Landlord of Tenant's intention within
ten (10) days after such taking of possession. In the event Tenant elects to
remain in possession, and Landlord does not so terminate, all of the terms
herein provided shall continue in effect except that the minimum rent shall be
proportionately and equitable abated, based on the amount of the Premises
taken, and Landlord shall make all necessary repairs or alterations to restore
the portion of the Premises remaining to as near its former condition as the
circumstances will permit and to restore the building to the extent necessary
to constitute the remainder a complete architectural unit; provided, however,
that Landlord shall not be required to spend amounts in excess of the
respective amounts received by Landlord for the taking of such part of the
Premises and the building of which it forms a part, and Tenant, at Tenant's
expense, shall make all necessary repairs and alterations to those items listed
as "Tenant's Work" in Exhibit "C" hereto, including but not limited to Tenant's
trade and lighting fixtures, decor, signs and contents.
If less than twenty-five percent (25%) of the Premises shall be taken,
the lease term shall cease on the day of taking only as to the part so taken
(subject to Landlord's right of termination as set forth in Section 2 of this
Article); rent shall be proportionately abated and Landlord shall make
necessary repairs or alterations as described in the previous paragraph.
SECTION 4. All damages awarded for such taking under the power or
threat of eminent domain, whether for the whole or a part of the Premises,
shall be assigned to and be the property of Landlord without any participation
by Tenant, whether such damages shall be awarded as compensation for diminution
in value or taking of the leasehold estate or the fee of the Premises;
provided,
<PAGE> 30
26
however, that nothing herein contained shall be construed to preclude Tenant
from prosecuting any claim directly against the condemning authority, but not
against Landlord, for the value of or damage to and/or for the cost of removal
of Tenant's trade fixtures and other personal property which under the terms of
this Lease would remain Tenant's property upon the expiration of the lease
term, as may be recoverable by Tenant in Tenant's own right, provided further
that no such claim shall diminish or otherwise affect Landlord's award. Each
party agrees to execute and deliver to the other all instruments that may be
required to effectuate the provisions of this Section.
SECTION 5. If a part or parts of the parking areas are taken, equal
or less than thirty percent (30%) thereof as the same existed prior to such
taking, Tenant shall not be entitled to compensation, diminution or abatement
of any rent or other charges, nor shall the same be deemed an actual or
constructive eviction. If as a result of any such taking of the parking areas
the same are reduced below seventy percent (70%) thereof, Landlord shall have
the right, within one hundred eighty (180) days after receipt of the award in
condemnation, to supply substitute parking facilities sufficient to meet
minimum governmental requirements on the property of Landlord or within
reasonable proximity to the shopping center; and in connection therewith,
Landlord shall have the right to construct multi-deck, elevated, subterranean
or vertical parking facilities. If Landlord shall be unable to replace or
substitute any such parking facilities so taken to comply with the provisions
of the preceding sentence, Landlord and Tenant shall each have the right and
option to cancel and terminate this Lease, within ninety (90) days after the
earlier of the end of said one hundred eighty (180) days or the date on which
Landlord notifies Tenant that substitute parking facilities will not be
provided by giving the other party a thirty (30) days' notice in writing; and
in such event this Lease shall come to an end upon the expiration of said
thirty (30) days and neither party thereafter shall have any further rights and
obligations as against the other.
ARTICLE XXI - ASSIGNMENT AND SUBLETTING
SECTION 1. Tenant shall not assign or in any manner transfer this
Lease or any interest therein, nor sublet the Premises or any part or parts
thereof, nor permit occupancy by anyone with, through or under it, without the
prior written consent of Landlord. Consent by Landlord to one or more
assignments of this Lease or to one or more sublettings of the Premises shall
not operate as a waiver of Landlord's rights under this Article as to any
subsequent assignment or subletting. No assignment or sublease shall release
Tenant (or its Guarantors, if any) of any of its obligations under this Lease
or be construed or taken as a waiver of any of Landlord's rights or remedies
hereunder. For the purpose hereof, if Tenant is a corporation or partnership or
other entity, any change
<PAGE> 31
27
in the control of Tenant shall be deemed to be an assignment which shall
required Landlord's consent as set forth above.
SECTION 2. If Tenant desires at any time to make an assignment, it
shall first notify Landlord of its desire to do so and shall submit in writing
to Landlord (i) the name of the proposed assignee, mortgagee, subtenant or
other transferee (any of the foregoing being hereinafter referred to as an
"Assignee"), (ii) the nature of the proposed Assignee's business to be carried
on at the Premises, (iii) a copy of the proposed Assignment Agreement and any
other agreement to be entered into concurrently with such assignment, (iv) the
financial information as Landlord may reasonably request concerning the
proposed Assignee. Tenant shall pay to Landlord as additional rent at the time
of submitting its notification the sum of Five Hundred Dollars ($500.00) to
cover Landlord's administrative costs, overhead and counsel fees in connection
with reviewing such proposed assignment. Neither the furnishing of such
information nor the payment of such fee shall limit any of Landlord's rights or
alternatives under this Article XXI.
SECTION 3. None of Tenant's rights under this Lease, nor any estate
thereby created, shall pass to any trustee or receiver in bankruptcy, or any
assignee for the benefit of creditors, or by operation of law.
ARTICLE XXII - COMPETITION
In recognition of the fact that this Lease provides for a percentage
rent based on gross sales made by Tenant in or from the Premises, Tenant agrees
that neither Tenant nor any affiliate or subsidiary of Tenant, directly or
indirectly, shall under the same trade name or otherwise, operate, manage or
have any interest in any other competing store or business for the sale of
merchandise at retail, including a department or concession in another store,
within three (3) miles from the shopping center, excluding establishments of
Tenant in existence as of the date of the execution of this Lease, if any. If
Tenant should violate this covenant, Landlord may (in addition to Landlord's
other remedies) at its option, on each "date of adjustment" occurring
thereafter, increase the annual minimum rent payable to a sum which will be in
the same ratio to the annual minimum rent otherwise fixed pursuant to this
Lease as the ratio of the cost of living on the date of adjustment to the cost
of living for the first month of the term of this Lease (as reflected by the
"price index" published for said dates).
For purposes of this Article, the first "date of adjustment" shall be
the day Tenant first violates this covenant, and each subsequent February 1 for
the remainder of this Lease shall be a "date of adjustment." "Price index," as
used herein, shall have the same meaning as in Article XXXIV, Section 15
hereof.
<PAGE> 32
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The amount of the increase in minimum rent, if any, will not be known
on the date of adjustment; therefore, Tenant shall continue to pay minimum rent
each month at the rate computed as of the previous date of adjustment until the
new fixed minimum rent is determined. When such new minimum rent is determined,
Landlord shall give Tenant notice thereof and Tenant shall add to the monthly
payment first coming due thereafter the amount of arrears, if any. In no event
shall the minimum rental be less than that specified in Article I hereof.
ARTICLE XXIII - FAILURE TO DO BUSINESS
The parties covenant and agree that because of the difficulty or
impossibility of determining Landlord's damage by way of loss of anticipated
percentage rent from Tenant and other tenants in the shopping center, or by way
of loss of value of the shopping center or adverse publicity or appearance by
Tenant's actions, should Tenant (a) fail to take possession and open for
business in the Premises fully fixtured, stocked and staffed on the
Commencement Date, or (b) vacate, abandon or desert the Premises, or (c) cease
operating or conducting Tenant's business therein (except where the Premises
are rendered untenantable by reason of fire, casualty, permitted repairs or
alterations or other causes beyond Tenant's control) or (d) fail or refuse to
maintain business hours on such days or nights or any part thereof as
established by Landlord, then and in any of such events (hereinafter
collectively referred to as "failure to do business"), Landlord shall have the
right, at its option, (i) to collect not only fixed minimum rent and other
rents and charges herein reserved (including percentage rent), but also
additional rent equal to one-quarter (1/4) of the fixed minimum rent reserved
for the period of Tenant's failure to do business, computed at a daily rate for
each and every day or part thereof during such period; and such additional rent
shall be deemed to be liquidated damages to compensate Landlord for percentage
rent that might have been earned by Landlord during such period, and in
addition, at Landlord's option (ii) to treat such failure to do business as an
"Event of Default" within the meaning of Article XXIV of this Lease. As used
herein the terms "vacate," "abandon" or "desert" shall not be defeated because
Tenant may have left all or any part of its trade fixtures or other personal
property in the Premises.
ARTICLE XXIV - DEFAULT
SECTION 1. Upon the happening of any one or more of the following
events (herein referred to as an "Event of Default") Landlord may immediately
or at any time thereafter exercise any remedies conferred upon Landlord by law
or this Lease:
a. If this Lease be assigned or the Premises be sublet,
either voluntarily or by operation of law, except as
herein expressly provided; or
<PAGE> 33
29
b. If Tenant shall fail to pay, within ten (10) days after
the same is due, any rental, charge or other sum payable
hereunder or deliver statements required pursuant to the
terms hereof; or
c. Tenant shall fail to correct any default with respect to
Article XXIII hereof within five (5) days after written
notice of such default shall have been given to Tenant;
or
d. Tenant shall fail to keep, observe or perform any of the
other terms, covenants and conditions herein to be kept,
observed and performed by Tenant for more than thirty
(30) days after written notice shall have been given to
Tenant specifying the nature of such default; or
e. The making by Tenant of an assignment for the benefit of
its creditors; or
f. The levying of a writ of execution or attachment on or
against the property of Tenant; or
g. In the event proceedings are instituted in a court of
competent jurisdiction for the reorganization,
liquidation or involuntary dissolution of Tenant, or for
its adjudication as a bankrupt or insolvent, or for the
appointment of a receiver of the property of Tenant, and
said proceedings are not dismissed and any receiver,
trustee or liquidator appointed therein discharged
within thirty (30) days after the institution of said
proceedings.
SECTION 2. Among the remedies which Landlord may exercise are the
following:
a. Landlord shall have the immediate right to re-enter the
Premises and dispossess Tenant and all other occupants
therefrom and remove and dispose of all property therein
or, at Landlord's election, to store such property in a
public warehouse or elsewhere at the cost and for the
account of Tenant, all without service of any notice of
intention to re-enter with or without resort to legal
process (which Tenant hereby expressly waives), and
without Landlord being deemed guilty of trespass or
becoming liable for any loss or damage which may be
occasioned thereby. Any such re-entry shall hereinafter
be referred to as "Repossession." No such Repossession
of the Premises by Landlord shall be construed as an
election on its part to terminate this Lease.
<PAGE> 34
30
b. If an event of default shall have occurred and be
continuing, Landlord shall also have the right, at its
option, in addition to and not in limitation of any
other right or remedy, to terminate this Lease by giving
Tenant a written three (3) days' notice of cancellation
and upon the expiration of said three (3) days, this
Lease and the lease term hereof shall end and expire and
thereupon, unless Landlord shall have theretofore
elected to re-enter the Premises, Landlord shall have
the immediate right of re-entry as more fully described
in Section 2(a) of this Article, and Tenant and all
other occupants shall quit and surrender the Premises to
Landlord, but Tenant shall remain liable as hereinafter
mentioned.
c. From time to time after Repossession of the Premises,
whether or not this Lease has been terminated, Landlord
may, but shall not be obligated to, attempt to re-let
the Premises for the account of Tenant in the name of
Landlord or otherwise, for such term or terms (which may
be greater or less than the period which would otherwise
have constituted the balance of the term of this Lease)
and upon such terms (which may include concessions or
free rent) and for such uses as Landlord, in its
uncontrolled discretion, may determine, and may collect
and receive the rent therefor. Any rent received shall
be applied against Tenant's obligations hereunder, but
Landlord shall not be responsible or liable for any
failure to collect any rent due upon any such
re-letting.
d. No termination of this Lease pursuant to Section 2(b) of
this Article and no Repossession of the Premises
pursuant to Section 2(a) or (b) of this Article or
otherwise shall relieve Tenant of its liabilities and
obligations under this Lease, all of which shall survive
any such termination or Repossession. In the event of
any such termination or Repossession, whether or not the
Premises shall have been re-let, Tenant shall pay to
Landlord the minimum rent, additional rent and other
sums and charges to be paid by Tenant up to the time of
such termination or Repossession and thereafter Tenant,
until the end of what would be been the term of this
Lease in the absence of such termination or Repossession
shall pay to Landlord, as and for liquidated and agreed
current damages for Tenant's default, the equivalent of
the amount of the minimum rent, additional rent and such
other sums
<PAGE> 35
31
and charges which would be payable under this Lease by
Tenant if this Lease were still in effect, less the net
proceeds, if any, of any re-letting effected pursuant
to the provisions of section 2(c) of this Article after
deducting all of Landlord's expenses in connection with
such re-letting, including, without limitation, all
repossession costs, brokerage and management
commissions, operating expenses, legal expenses,
attorneys' fees, alteration costs, and expenses of
preparation for such re-letting. Tenant shall pay such
current damages to Landlord monthly on the days on
which the minimum rent would have been payable under
this Lease if this Lease were still in effect, and
Landlord shall be entitled to recover the same from
Tenant on each such day. At any time after such
termination or Repossession whether or not Landlord
shall have collected any current damages as aforesaid,
Landlord shall be entitled to recover from Tenant, and
Tenant shall pay to Landlord on demand, as and for
liquidated and agreed final damages for Tenant's
default, an amount equal to the then present value of
the excess of the minimum rent, additional rent and
other sums or charges reserved under this Lease from
the day of such termination or Repossession for what
would be the then unexpired term if the same had
remained in effect, over the then net fair rental value
of the Premises for the same period as determined by an
independent real estate appraiser named by Landlord.
For purposes of this section, "present value" shall be
computed by discounting such excess to present value at
a discount rate equal to one percentage point above the
discount rate then in effect at the Federal Reserve
Bank of Minneapolis.
e. In addition to all other remedies of Landlord,
Landlord shall be entitled to reimbursement upon
demand of all reasonable attorneys fees incurred by
Landlord in connection with any Event of Default.
f. In determining the Percentage Rent which would be
payable by Tenant for any period when Tenant is no
longer in possession of the Premises following an Event
of Default, the same shall be deemed to be for each
lease year during the remainder of the lease term
hereof, or the period equivalent thereto which
otherwise would have constituted the balance of the
lease term hereof, the average annual percentage rent
paid or payable by Tenant from the commencement of the
lease term hereof to the end of lease year immediately
preceding the occurrence of
<PAGE> 36
32
such Event of Default, or during the immediately
preceding three (3) full lease years, whichever period
is shorter.
g. Landlord and Tenant agree that the remedies available to
Landlord under law and the remedies expressly described
in this Lease may not be adequate; therefore, Tenant
hereby agrees that Landlord may institute any action or
proceeding to compel Tenant to specifically perform and
observe any covenant, agreement or condition of this
Lease or to enjoin Tenant from defaulting in the
performance or observance of any covenant, agreement or
condition of this Lease. Tenant hereby waives the claim
or defense that Landlord has an adequate remedy at law
and Tenant covenants that Tenant will not assert such
claim or defense in any such action or proceeding
h. In the event of any breach hereunder by Tenant, Landlord
may immediately or at any time thereafter, without
notice, perform or observe any of Tenant's obligations
hereunder for the account and at the expense of Tenant.
Such performance or observance by Landlord shall not
constitute a waiver of Tenant's default.
If Landlord at any time, by reason of such breach, is
compelled to pay, or elects to pay, any sum of money or
do any act which will require the payment of any sum of
money, or is compelled to incur any expense, including
reasonable attorneys' fees, by instituting or
prosecuting any action or proceeding to enforce
Landlord's rights hereunder, the sum or sums so paid by
Landlord, shall bear interest from the date of payment
at the rate specified in Article VII, Section 2 hereof.
i. The remedies conferred upon Landlord by law, and the
remedies conferred upon Landlord by this Lease are
cumulative; and no remedy shall be deemed to exclude any
other remedy. Each remedy may be exercised from time to
time, as often as occasion arises.
SECTION 3. This Lease is intended as and constitutes a security
agreement within the meaning of the Uniform Commercial Code. As security for
payment of rent, damages and all other payments to be made by Tenant, Tenant
hereby grants to Landlord a lien and security interest under the Uniform
Commercial Code in all property of Tenant now or hereafter placed on the
Premises, including but not limited to leasehold improvements, trade
<PAGE> 37
33
fixtures, furnishings and inventory. Tenant agrees to execute such financing
statements as Landlord may from time to time request in order to perfect this
security interest. Landlord may at its election file a copy of this Lease as a
financing statement. Landlord, as a secured party, shall be entitled to all of
the rights and remedies available to a secured party under the Uniform
Commercial Code.
SECTION 4. Should Landlord be in default under the terms of this
Lease, Landlord Shall have reasonable and adequate time (which shall be at
least thirty (30) days) in which to cure the same after written notice to
Landlord by Tenant.
In the event of any act or omission of Landlord which would give
Tenant the right, immediately or after lapse of a period of time, to cancel or
terminate this Lease, or to claim a partial or total eviction, Tenant shall not
exercise such right (a) until it has given written notice of such act or
omission to the holder of each superior mortgage and the lessor of each
superior lease whose name and address shall previously have been furnished to
Tenant in Writing; and (b) until a reasonable period for remedying such act or
omission shall have elapsed following the giving of such notice and following
the time when such holder or lessor shall have become entitled under such
superior mortgage or superior lease, as the case may be, to remedy the same
(which reasonable period shall in no event be less than the period to which
Landlord would be entitled under this Lease or otherwise, after similar notice,
to effect such remedy), provided that if such act or omission shall be one
which is not capable of being remedied by Landlord or such mortgage holder
within a reasonable period of time, Tenant shall not exercise such right if
such holder or Landlord shall with due diligence give Tenant written notice of
intention to, and commence and continue to remedy such act or omission.
Anything in this agreement to the contrary notwithstanding, Landlord
shall not be deemed in default with respect to the performance of any of the
terms, covenants and conditions of this Lease if the same shall be due to any
strike, lock-out or other labor trouble, material shortages, governmental
restrictions, fire, acts of God, the elements, war, riot, rebellion or any
other cause beyond the reasonable control of Landlord, and this Lease and the
obligation of Tenant to pay rent hereunder and perform all of the other
covenants to be performed hereunder by Tenant shall not be affected, impaired
or excused, except as otherwise specifically provided herein.
ARTICLE XXV - SECURITY DEPOSIT
Tenant hereby deposits with Landlord the sum referred to in Article I
hereof as security for the faithful performance by Tenant of every term and
condition of this Lease. If any of the rents herein reserved or any other sum
payable by Tenant to Landlord
<PAGE> 38
34
shall be overdue or unpaid, or if Landlord makes any payment on behalf of
Tenant or if there shall be a breach or default by Tenant in respect of any
term or condition of this Lease, Landlord may use all or any part of the
security to perform the same for the account of Tenant, or for any damages or
deficiency in the re-letting of the Premises, whether such damages or default
accrue before or after summary proceedings or re- entry by Landlord. The
provisions herein contained do not limit the rights of Landlord pursuant to the
terms of Article XXIV of this Lease. It is understood that no interest on said
security will be paid by Landlord to Tenant.
In the event of any sale, transfer or assignment of the Landlord's
interest under this Lease, Landlord may transfer or assign said security to the
vendee, transferee or assignee, as the case may be, and Landlord thereupon
shall be released from all liability for the repayment of said security, and
Tenant, in each instance, shall look solely to such vendee, transferee or
assignee, as the case may be, for repayment of said security. The provisions
hereof shall apply to each such sale, transfer or assignment and to each such
transfer or assignment of such security.
ARTICLE XXVI - SURRENDER OF POSSESSION
SECTION 1. At the expiration of the tenancy created hereunder,
whether by lapse of time or otherwise, Tenant shall surrender the Premises in
good condition and repair except for reasonable wear and tear, any repairs
specifically required herein to be performed by Landlord and loss by fire or
other causes which can be insured by standard fire and extended coverage
insurance or which is covered by other insurance. If the Premises is not
surrendered at the end of the term or the sooner termination thereof, Tenant
shall indemnify Landlord against loss or liability resulting from delay by
Tenant in so surrendering the Premises, including without limitation, claims
made by any succeeding tenant founded on such delay.
SECTION 2. In the event Tenant remains in possession of the Premises
after the expiration of the tenancy created hereunder without the execution of
a new lease, Tenant, at the option of Landlord, shall be deemed to be occupying
the Premises as a tenant from month to month, at a monthly rental equal to the
sum of (i) twice the monthly installment of minimum rent payable during the
last month of the lease term, (ii) the monthly common area charge, (iii) the
monthly promotional charge, and (iv) one-twelfth (1/12) of the average
percentage rent payable hereunder for the last lease year, subject to all the
other conditions, provisions and obligations of this Lease insofar as the same
are applicable to a month-to-month tenancy.
SECTION 3. Upon the expiration of the tenancy hereby created, if
Landlord so requires in writing at that time, Tenant shall immediately remove
any permanent alterations, additions, fixtures
<PAGE> 39
35
and improvements made or installed in the Premises by Tenant as designated in
said request, and shall remove all non-permanent alterations, additions,
improvements and fixtures made or installed therein by Tenant, and repair any
damage occasioned by all such removals at Tenant's expense, and in default
thereof, Landlord may effect such removals and repairs, and Tenant shall pay
Landlord the cost thereof, with interest as provided in Article VII, Section 2
hereof.
ARTICLE XXVII - FINANCIAL ABILITY OF TENANT
Not later than fifteen (15) days after the date of this Lease Tenant
shall furnish to Landlord evidence in form and substance satisfactory to
Landlord of Tenant's ability to perform its financial obligations under this
Lease including but not limited to payment of costs of Tenant's Work (as
defined in Exhibit "C"), costs of other initial leasehold improvements,
fixtures and furnishings of the Premises and costs of operation of Tenant's
business including working capital, inventory purchases and rent and costs and
charges under this Lease. In the event that Tenant is relying upon a lender's
commitment to provide financing, such commitment shall be in form and substance
satisfactory to Landlord. In making its determination of Tenant's financial
ability, Landlord may, but shall not be required to, take into account the
financial ability of any guarantors of Tenant's obligations under this Lease.
In the event that Tenant's financial condition (or the evidence of
such condition) is not satisfactory to Landlord, Landlord shall have the
option, exercisable by written notice delivered to Tenant within thirty (30)
days to terminate this Lease. In the event that this Lease is terminated
pursuant to this Article XXVII, any money or security deposited hereunder shall
be returned to Tenant and neither party shall have any further right, duty,
privilege or obligation hereunder.
ARTICLE XXVIII - SUBORDINATION
Tenant agrees that this Lease shall be subject and subordinate to all
covenants, restrictions, easements, agreements, liens and encumbrances now or
hereafter affecting the fee title to the shopping center property and to all
ground and underlying leases and mortgages, trust deeds, or any other method of
financing or refinancing in any amounts, and to any and all advances to be made
thereunder and to the interest thereon, which may now or hereafter be placed
against or affect any and all of the land and/or the Premises and/or any or all
of the buildings and improvements now or at any time hereafter constituting a
part of or adjoining the shopping center and all renewals, modifications,
replacements and extensions thereof. Tenant further agrees that upon
notification by Landlord to Tenant, this Lease shall be or become prior to any
ground and underlying leases and mortgages, trust deeds or any other method of
financing or refinancing that may heretofore or
<PAGE> 40
36
hereafter be placed on the shopping center or any part thereof. Tenant shall
execute and deliver whatever instruments may be required for the above
purposes, and failing to do so within ten (10) days after demand in writing, in
addition to the remedies provided in Article XXIV, does hereby make, constitute
and irrevocably appoint Landlord as its attorney-in-fact and in its name, place
and stead so to do.
ARTICLE XXIX - QUIET ENJOYMENT
Tenant, upon paying the rents herein reserved and performing and
observing all of the other terms, covenants and conditions of this Lease on the
Tenant's part to be performed and observed hereunder, shall peaceably and
quietly have, hold and enjoy the Premises during the lease term hereof, subject
nevertheless, to the terms of this Lease, and to any mortgages, ground or
underlying leases, agreements and encumbrances to which this Lease is or may be
subordinated.
ARTICLE XXX - CORPORATE TENANT
If Tenant is a corporation, the persons executing this Lease on behalf
of Tenant hereby covenant, represent and warrant that Tenant is a duly
incorporated or duly qualified (if foreign) corporation and is authorized to do
business in the State of Minnesota (a copy of evidence thereof to be supplied
to Landlord upon request), that each person executing this Lease on behalf of
Tenant is an officer of Tenant, and that he or they as such officers are duly
authorized to sign and execute this Lease (a copy of a resolution of the same
to be supplied to Landlord upon request).
ARTICLE XXXI - TENANT'S STATEMENT
Within ten (10) days after written request therefor by Landlord,
Tenant shall execute, acknowledge and deliver to Landlord or to any proposed
purchaser or lender a written statement, similar in form to Exhibit D hereto
attached, certifying: (a) the commencement date of this Lease; (b) that this
Lease is unmodified and in full force and effect (or if there have been
modifications, that the Lease with such modifications is in full force and
effect); (c) the dates to which the minimum rent and other charges have been
paid; (d) that there are no defenses or offsets to the Lease (or if there are
offsets, the offsets claimed by Tenant); and (e) such other matters as may
reasonably be requested by Landlord.
Tenant's failure to deliver such a statement within such time shall be
conclusive upon Tenant (i) that this Lease is in full force and effect, without
modification except as may be represented by Landlord, (ii) that there are no
uncured defaults in Landlord's
<PAGE> 41
37
performance, and (iii) that no rental has been paid in advance unless otherwise
herein specifically provided.
ARTICLE XXXII - RULES AND REGULATIONS, HOURS
Tenant agrees that Landlord may, from time to time, establish
reasonable rules and regulations for the management, safety, care and
cleanliness of the shopping center and the preservation of good order therein
and for the convenience of all occupants and tenants of the shopping center
including, but not limited to, rules concerning shopping center hours, trash
and garbage and parking. Landlord shall have the right to establish different
rules for different tenants or classes of tenants as Landlord in its sole
discretion deems necessary or appropriate. Tenant, together with all other
persons entering or occupying the Premises at Tenant's invitation or with
Tenant's permission, shall comply with such rules and regulations, which, by
this reference, become binding conditions of this Lease. Any changes from time
to time in such rules and regulations shall become effective upon delivery of a
copy thereof to Tenant at the Premises by Landlord and shall apply equally to
all tenants similarly situated without discrimination, except as otherwise
provided in this Lease. Tenant shall keep the Premises open for business during
the days and hours designated by Landlord from time to time. Landlord shall
have the right to establish different business hours and/or days for different
Tenants or classes of Tenants.
ARTICLE XXXIII - NOTICES
Whenever under this Lease a provision is made for notice of any kind,
such notice shall be in writing and signed by or on behalf of the party giving
or making the same, and it shall be deemed sufficient notice and service
thereof if delivered or tendered in person or if sent by registered or
certified mail, postage prepaid, return receipt requested, and if such notice
is to Tenant, to the post office address of Tenant set forth on the first page
of this Lease, or to the Premises; and if such notice is to Landlord, to the
address set forth on the first page of this Lease, or to the place then fixed
for the payment of rent. Either party may designate a different address to
which notices shall thereafter be sent by giving notice thereof to the other
party in accordance with this Article. If Landlord or Tenant is more than one
person, notice need be sent to but one tenant or one landlord, as the case may
be. The Tenant hereby agrees to give the mortgagee of the shopping center
notice of any default of the Landlord in the performance of any of the terms,
covenants and provisions to be performed by the Landlord hereunder, as required
by Article XXIV, Section 4 hereof.
ARTICLE XXXIV - MISCELLANEOUS
<PAGE> 42
38
SECTION 1. All negotiations, considerations, representations and
understandings between the parties are incorporated herein and may be modified
or altered only by a writing signed by the party to be charged.
SECTION 2. The headings of the several articles contained herein are
for convenience only and do not define, limit or construe the contents of such
articles.
SECTION 3. The word "Tenant," as used herein, shall include the
plural as well as the singular; if there are more than one Tenant hereunder,
the obligations imposed on Tenant shall be joint and several. Whenever herein
the singular number is used, the same shall include the plural, and the
masculine gender shall include the feminine and neuter genders.
SECTION 4. This Lease is submitted to Tenant on the understanding
that it will not be considered an offer or constitute an option to lease the
Premises and will not bind Landlord in any way until (a) Tenant has duly
executed and delivered duplicate originals to Landlord and (b) Landlord has
executed and delivered one of such originals to Tenant.
SECTION 5. Nothing contained herein shall be deemed or construed by
the parties hereto, nor by any third party, as creating the relationship of
principal and agent or of partnership or of joint venture between the parties
hereto.
SECTION 6. Landlord and Tenant acknowledge that each of them and
their counsel have had an opportunity to review this Lease and that this Lease
will not be construed against Landlord merely because Landlord's counsel has
prepared it.
SECTION 7. The invalidity or unenforceability of any provision
contained in this Lease shall not affect or impair the validity of any other
provision of this Lease.
SECTION 8. The laws of the State of Minnesota shall govern the
validity, performance and enforcement of this Lease.
SECTION 9. Upon request, Tenant agrees to execute a "Memorandum
Lease" for recording. Tenant shall not record this Lease or any memorandum
thereof without the prior written consent of Landlord.
SECTION 10. Tenant warrants that it has had no dealings with any
broker or agent in connection with this Lease and covenants to pay, hold
harmless and indemnify Landlord from and against any and all cost, expense or
liability for any compensation, commissions and charges claimed by any broker
or other agent with respect to this Lease or the negotiation thereof.
<PAGE> 43
39
SECTION 11. Tenant acknowledges and agrees that the liability of
Landlord under this Lease shall be limited to its interest in the shopping
center and any judgments rendered against Landlord shall be satisfied solely
out of the proceeds of sale of its interest in the shopping center. No personal
judgment shall lie against Landlord upon extinguishment of its rights in the
shopping center and any judgment so rendered shall not give rise to any right
of execution or levy against Landlord's assets. The foregoing provisions are
not intended to relieve Landlord from the performance of any of Landlord's
obligations under this Lease, but only to limit the personal liability of
Landlord in case of recovery of a judgment against Landlord; nor shall the
foregoing be deemed to limit Tenant's rights to obtain injunctive relief or
specific performance or to avail itself of any other right of remedy which may
be award Tenant by law or under this Lease.
SECTION 12. The various rights and remedies herein contained and
reserved to each of the parties hereto shall not be considered as exclusive of
any other right or remedy of such party, but shall be construed as cumulative
and shall be in addition to every other remedy now or hereafter existing at
law, in equity, or by statute. No delay or omission of the exercise of any
right or power by either party shall impair such right or power, or shall be
construed as a waiver of any default or as acquiescence therein. One or more
waivers of any covenant, term or condition of this Lease by either party shall
not be construed by the other party as a waiver of a subsequent breach of the
same covenant, term or condition.
The consent or approval by either party to or of any act by the other
party of a nature requiring consent or approval shall not be deemed to waive or
render unnecessary consent to or approval of any subsequent similar act. The
receipt by Landlord of rent or other charges with knowledge of a breach of any
provision of this Lease shall not be deemed a waiver of such breach. No
provision of this Lease shall be deemed to have been waived unless such waiver
shall be in writing and signed by the party to be charged. No waiver by
Landlord in favor of any other tenant or occupant shall constitute a waiver in
favor of the Tenant herein.
SECTION 13. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly rent and/or other charges herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent and/or other
charges then unpaid, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment by Tenant be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice
to Landlord's right to recover the balance of such rent and/or other charges or
pursue any other remedy in this Lease or by law provided.
<PAGE> 44
40
SECTION 14. The covenants, agreements and obligations herein
contained shall extend to, bind and inure to the benefit not only of the
parties hereto but their respective personal representatives, heirs, successors
and assigns, provided, that nothing in this section shall be deemed to permit
any assignment, subletting or occupancy by Tenant contrary to the provisions of
Article XXI. If Landlord or any successor or assign of Landlord shall assign
its interest in this Lease, it shall thereafter be entirely relieved of all
terms, covenants and obligations thereafter to be performed by Landlord under
this Lease, provided (a) that any funds then being held by Landlord or the then
grantor or transferor for Tenant's account shall be turned over, subject to
such interest, to the then grantee or transferee; and (b) notice of such
assignment shall be delivered to Tenant.
Tenant agrees that in the event of a sale, transfer or assignment of
the Landlord's interest in the shopping center or any part thereof, including
the Premises, or in the event any proceedings are brought for the foreclosure
of or for the exercise of any power of sale under any mortgage made by Landlord
covering the shopping center or any part thereof, including the Premises, or in
the event of a cancellation or termination of any ground or underlying lease
covering the shopping center or any part thereof, including the Premises, to
attorn to and to recognize such transferee, purchaser, ground or underlying
lessor or mortgagee as Landlord under this Lease.
SECTION 15. "Price index," as used in this Lease, means the
"Minneapolis St. Paul - All Items - Consumer Price Index for All Urban
Consumers (1982-1984 = 100)" issued from time to time by the Bureau of Labor
Statistics of the U.S. Department of Labor, or any other measure hereafter
employed by said Bureau or any successor in lieu thereof which purports to
reflect the change in the cost of living; if the government ceases to publish a
price index which will permit the measurement of the approximate cost of living
increase from time to time, then the amount of such increase shall be
determined by arbitration in accordance with the procedures of the American
Arbitration Association in order to give effect to the intent of this Section.
SECTION 16. This Lease may be executed in several counterparts, each
of which shall be deemed an original, and all such counterparts shall together
constitute one and the same instrument.
<PAGE> 45
41
IN WITNESS THEREOF, Landlord and Tenant have executed this
Lease as of the 4th day of January, 1996.
LANDLORD: CALHOUN SQUARE ASSOCIATES
LIMITED PARTNERSHIP
By Calhoun Square Associates
General Partner of Calhoun
Square Associates Limited
Partnership
By RHH Limited Partnership
General Partner of Calhoun
Square Associates
By _____________________________________
General Partner of
RHH Limited Partnership
TENANT: LAKE & HENNEPIN BBQ
AND BLUES, INC.
By _____________________________________
Its_______________________________
<PAGE> 46
EXHIBIT A
The Land described in the referenced instrument is located in Hennepin County,
Minnesota, and is described as follows:
Lots 2 thru 12, inclusive, Block 15 and all of the vacated alley in said Block
15, Calhoun Park.
Lots 1, 2, 3, 10, 11, 12, Block 14, Calhoun Park and all of the vacated alley
adjacent thereto.
Lots 4, 5 and 6, Block 14, Calhoun Park and the East 1/2 of the vacated alley
adjacent thereto.
Lots 7 thru 12, inclusive, Block 13, Calhoun Park.
Lots 7 thru 10, inclusive, Block 12, Calhoun Park.
All of the vacated Girard Avenue South lying North of the North line of West
31st Street and South of the North line of Lot 10, Block 12 extended west.
Part of the above property being registered property, more particularly
described as follows:
The North 1 foot of Lot 9 and the South 45 feet of Lot 10, Block 15, Calhoun
Park.
<PAGE> 47
EXHIBIT A-1
CALHOUN SQUARE LEASE
PERMITTED ENCUMBRANCES
To the best of Landlord's knowledge, the attached Condition of Title
(which pertains to the Torrens part of the real property described in Exhibit
A) describes the encumbrances as to all of the real property described in
Exhibit A except as follows:
(1) The mortgage identified in entry 1 has been satisfied and the
memorial has been deleted by order of the Examiner of Titles;
(2) The assignments of rents identified in entries 7 and 9 relate
to mortgages identified in entries 6 and 8, respectively, both
of which have been satisfied. Accordingly, the assignments of
rent are no longer effective.
Landlord and Tenant agree that the encumbrances in the attached
Condition of Title are permitted encumbrances.
[Attachment has been deleted -- document is of record in the Hennepin County
Clerk's office]
<PAGE> 48
EXHIBIT B
Exhibit B is a map showing location of the Property.
<PAGE> 49
EXHIBIT C
CONSTRUCTION
I. PRELIMINARY MATTERS:
A. DESIGN PACKAGE
Promptly upon execution of this Lease, Landlord shall deliver to
Tenant applicable architectural, structural, electrical and mechanical
information, design theme criteria and other data, details, and requirements
(hereinafter collectively referred to as "Design Package") with which Tenant
shall fully comply in the preparation of Tenant's Work. Landlord makes no
warranties or representations regarding the accuracy of plans, drawings or
other information prepared by or for the use of former tenants of the Premises
and furnished to Tenant. Tenant assumes all risks arising out of the use of
such plans, drawings and information.
B. TENANT CONTRACTS
Within ten (10) days after delivery by Landlord to Tenant of the
Design Package, Tenant shall inform Landlord, in writing, of the name, address
and telephone number of Tenant's architect or designer and also Tenant's
authorized business representative. Tenant agrees to promptly notify Landlord,
in writing, of any change or changes of its architect or designer and/or
business representative.
II. PLAN REVIEWAL:
A. SUBMISSION PROCEDURE
1. Preliminary Drawings. Within twenty (20) days after
the date on which Landlord delivers the Design
Package to Tenant, Tenant shall prepare and deliver
to Landlord a preliminary drawing of Tenant's
storefront.
2. Working Drawings. Within thirty (30) days after the
date of Landlord's delivery of the Design Package to
Tenant, Tenant shall prepare and submit to Landlord
both: (a) the working drawings and specifications
for Landlord's written approval (including working
drawings for the storefront); and (b) an estimate
prepared by Tenant's architect or designer, of the
probable cost of Tenant's Work, such estimated
probable cost to be itemized as to the various
portions of Tenant's Work in such detail as Landlord
may reasonably request. The working drawings (plans)
and specifications shall include the complete
development and delineation by
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licensed architects, engineers, or designers of
working drawings (plans), specifications, bid
instructions, bid forms, general conditions, and
other documents and details as required to completely
describe the architectural, mechanical and electrical
components of the work, all as more fully defined in
the Design Package.
3. Review and Approval of Drawings. Landlord will
review Tenant's drawings within ten (10) days after
receipt thereof and either approve or reject the
same. Landlord's approval will be evidenced by
returning one set of drawings to Tenant with an
endorsement of either (i) "Approved, Final" or (ii)
"Approved, Final as Noted". Landlord shall notify
Tenant of the manner, if any, in which said drawings
as submitted by Tenant fail to conform with the
provisions of this Lease or the Design Package, are
incomplete, inadequate or are otherwise unacceptable
to Landlord and in any such case, Landlord's
rejection will be endorsed thereon in one of the
following manners: (i) "Approved as Noted, Resubmit",
or (ii) "Not Approved, Resubmit" or (iii) "Other".
4. Resubmission. Within ten (10) days following receipt
of Landlord's rejection, if any, Tenant shall
promptly revise or correct the drawings and resubmit
revisions or corrections to Landlord correcting the
objections previously noted. Landlord shall review
said resubmitted drawings within ten (10) days. If
Tenant's resubmitted drawings are again rejected, (i)
Tenant shall be responsible for all ensuing delays as
provided in paragraph XIII of this Exhibit, (ii)
Tenant shall continue to resubmit drawings until the
same are approved, and (iii) Tenant shall pay to
Landlord upon demand all costs and expenses
thereafter incurred by Landlord in connection with
such drawings including, but not limited to the costs
and charges of Landlord's representative, architect
and engineer for work done thereon.
5. Final Date. In any event, Tenant is obligated to
have completed and approved working drawings and
specifications no later than ninety (90) days after
the complete Design Package is sent to Tenant.
6. Changes. Tenant covenants and agrees that no other
revisions, corrections, additions or changes shall be
made by Tenant to the working drawings except with
respect to such objections expressly
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previously noted; and Tenant shall be liable for any
and all costs and damages incurred by Landlord
resulting from a breach of this covenant.
If any changes are made in Tenant's working drawings
and/or color rendition of the storefront design,
after Landlord's approval thereof, as above provided,
either prior to or during construction of Tenant's
Work, Tenant shall submit to Landlord, for Landlord's
approval, two (2) sets of revised working drawings
and/or one (1) color rendition of the storefront
design, whichever the case may be; and in such event,
Tenant shall pay to Landlord all reasonable
architectural and engineering fees and costs of
Landlord's architects and engineers for the study,
review and approval of such revised working drawings
and/or such revised color rendition of the storefront
design.
7. Anything herein contained to the contrary
notwithstanding, any approval or other action given
or taken by Landlord or Landlord's architect with
respect to Tenant's preliminary drawings or working
drawings or Tenant's Work shall not obligate Landlord
in any manner whatsoever in respect to the finished
product, design and/or construction by Tenant. Any
deficiency in design or construction, although the
same had prior approval of Landlord, shall be solely
the responsibility of Tenant. Tenant shall be solely
responsible for corrections in Tenant's Work and its
working drawings and specifications required by
governmental authority.
8. Within thirty (30) days after completion of the
Premises, Tenant shall deliver to Landlord one set of
rolled reproducibles of working drawings of the
Premises as built. "Reproducibles" shall be full
size mylars or sepias capable of reproducing Tenant's
complete approved final working drawings (plans) and
specifications; and shall be rolled and delivered in
a suitable mailing tube so as to prevent creasing.
B. MINIMUM REQUIRED PRELIMINARY DRAWINGS
All submissions of preliminary drawings shall consist of at least one
(1) sepia transparency and two (2) blueline prints of the following:
1. Elevation(s) of storefront at a minimum scale of 1/4" = 1'0"
to include the following details: (a) type of closure
(doors/grilles); (b) show windows; (c) relief air
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grille; (d) type of material; (e) finish of material; (f)
colors of finish; (g) sign: indicate color, style, size and
location on storefront; and (h) logo (if applicable).
2. Rendering of a colored storefront elevation.
C. MINIMUM REQUIRED WORKING DRAWINGS
All submissions of working drawings shall consist of at least one (1)
sepia transparency and two (2) blueline prints of the following:
1. Key Plan showing location of particular tenant.
2. Floor Plan(s) at a minimum scale of 1/4" = l'0" to include the
following detail: (a) location of walls and interior
partitions; (b) fixtures; (c) displays; (d) show grid lines
by letter and number to match Landlord's grid; (e) include
space number designation; (f) North Arrow; (g) room finish
schedule; and (h) door schedule.
3. Elevation(s) at a minimum scale of 1/4" = 1' 0" to include the
following detail: a. Storefront: (1) type of closure
(door/grille); (2) show windows; (3) Relief air grille; (4)
type of material; (5) finish of material; (6) colors of
finish; (7) sign: indicate color, style, size and location on
storefront; (8) logo (if applicable); b. Interior Walls: (1)
type of material; (2) finish of material; and (3) color of
finish.
4. Detail at the minimum scale of 1/4" = 1' 0" unless otherwise
noted: (a) overall longitudinal section; (b) storefront; and
(c) interior partitions at 1/2" - 1,0".
5. Sections at the minimum scale of 1-1/2" = 1' 0" unless
otherwise noted: (a) storefront; (b) special conditions
encountered; and (c) door jamb.
6. Reflected Ceiling Plan at the minimum scale of 1/4" - 1' 0" to
include the following detail: (a) layout of ceiling, including
sprinkler heads; (b) lighting fixture location; (c) special
ceiling fixtures; and (d) materials.
7. Electrical distribution plan at the minimum scale of 1/4" = 1'
0" to include the following detail: (a) circuiting and
switching; (b) wall and floor outlets; (c) riser diagram; (d)
telephone; (e) reflected ceiling plan; and (f) electrical
fixture/equipment schedule.
8. Heating, Ventilating and Air Conditioning Plans at the minimum
scale of 1/4" = 1' 0" to include the following
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detail: (a) ductwork layout; (b) reheat coil(s); (c)
thermostat(s); (d) hot water piping; (e) diffusers, grilles,
registers; (f) free air opening to mall; (g) special exhaust
systems (where applicable); (h) makeup air systems (where
applicable); (i) mechanical details at a scale of 1/2" =
l'0"; and (j) tabulation sheet included in Tenant Information
package is to be filled out by the mechanical/electrical
designer and attached to the HVAC drawing.
9. Specifications. Outline specifications covering all Tenant
work, architectural (including list of hardware), electrical, mechanical,
sprinkler and heating, ventilating and air conditioning, shall be provided with
the above drawings.
10. Structural drawings. If Tenant's mechanical equipment
(including escalators, elevators . . .) requires a structural revision in the
Landlord's shell, Tenant shall furnish Landlord with sufficient plans,
specifications, and data that Landlord's structural engineers may design
correct structural revisions.
11. Sample Boards. With the minimum required working drawings,
Tenant will furnish sample boards indicating colors, textures, materials, etc.,
of all surfaces on storefront(s) and public areas in the Premises.
III. CONDITION OF PREMISES:
Except as may be otherwise herein provided, Tenant shall by entering
into and occupying the Premises, and by commencing Tenant's Work therein, be
conclusively deemed to have accepted the same and to have acknowledged that the
Premises are as represented by the Landlord and are in the condition required
by the Lease.
IV. TENANT'S WORK:
Except as otherwise provided in the Lease, all work required to
complete and place the Premises in finished condition for the opening for
business shall be at Tenant's sole expense and shall be Tenant's responsibility
to perform or, where hereinafter noted, to request Landlord to perform for
Tenant at Tenant's cost.
A. WORK DONE BY TENANT AT TENANT'S COST
1. Floors. All construction and finishes related to
floors shall be designed by Tenant and when approved
by Landlord shall be installed by Tenant. Such work
shall include but not be limited to: inserts, sleeves
and conduit in slabs, slab depressions, raised
floors, wood, tile, carpet or other special floor
finishes. Tenant shall not install flooring or
locate sales fixtures over
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<PAGE> 54
plumbing cleanouts in a manner which renders them not
easily accessible.
2. Ceilings. All construction and finishes relating to
ceilings shall be designed by Tenant and when
approved by Landlord shall be installed by Tenant.
Such work shall include but not be limited to:
ceiling drops, facias, coves, integrated ceilings and
special ceiling finishes, paint, etc. All ceiling
heights are subject to Landlord's approval. Access
shall be provided to HVAC equipment at locations
designated by Landlord.
3. Walls. Construction and finishing of partitions
shall be designed by Tenant and when approved by
Landlord shall be installed by Tenant. Such work
shall include but not be limited to: additional
backing support in demising walls as required,
additional interior stud walls, sheetrock, painting,
decorating, etc.
4. Doors. Doors and frames into service corridors not
required by code may upon approval by Landlord be
installed by Tenant.
5. Storefronts. Tenant shall be solely responsible for
design and, when approved by Landlord, installation
of a storefront to the Premises. Design of the
storefront shall meet the Landlord's design criteria
which will be set forth in the Design Package.
6. Electrical. All construction and finishes relating to
electrical work shall be designed by Tenant and when
approved by Landlord shall be installed by Tenant.
Such work shall include but not be limited to:
distribution, switches, outlets, special lighting,
fixture wiring and lighting, intercom, alarm systems,
timers, sound systems, etc. In the event the roof is
penetrated by this equipment, the Landlord's roofing
contractor will, at Tenant's cost, provide the
necessary curbs, flashing, patching, etc., to
maintain the integrity and guaranty of the roof.
7. Heating, Ventilating and Air Conditioning. HVAC
systems from the point at which Landlord delivers
ventilation and cooling to the Premises shall be
designed by Tenant and when approved by Landlord
shall be installed by Tenant's contractor. Such work
shall include but not be limited to additional
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<PAGE> 55
ducts, exposed ducts, exhaust fans, make-up air
systems, unit heaters, control devices, etc.
8. Gas Connections. All gas connections and gas meters
within the Premises and to the meter bank shall be
designed by Tenant and, when approved by Landlord,
shall be installed by Tenant.
9. Water, Sewer, Vents. All water, sewer and venting
facilities within the Premises and extensions to
Landlord's main facilities shall be designed by
Tenant and when approved by Landlord shall be
installed by Tenant. Tenant shall provide and
install a water meter at Tenant's expense.
10. Telephone Equipment. All telephone equipment and
conduit within the Premises shall be designed by
Tenant and, when approved by Landlord, shall be
installed by Tenant.
11. Special Equipment. All mechanical equipment,
elevators (passenger and freight), escalators,
conveyers or other equipment related to the operation
of the Tenant, located within the Premises shall be
designed by Tenant, and when approved by Landlord,
shall be installed by Tenant. Landlord will, at
Tenant's cost, provide the necessary structural
revisions to accommodate the special equipment. (See
IV.B.1).
12. Safety Equipment. Installation of all required
safety and emergency equipment, including emergency
lighting, exit lights, exit hardware, fire
extinguishers and any other items required by code or
any governmental body shall be designed by Tenant and
when approved by Landlord shall be installed by
Tenant.
13. Handicapped Facilities. Tenant shall install all
equipment for aiding the handicapped, as required by
any governmental body.
14. Storefront. Landlord's Use. Landlord shall have the
right, at its option, to take small portions of each
end of Tenant's storefront for use as a neutral strip
service facility, or other noncommercial use. The
maximum taking at each end of the storefront will be
two (2) feet in width and two (2) feet in depth, and
may extend the full height of the storefront.
Landlord shall be responsible for finishing such
areas, but such taking shall not reduce any rents,
fees or charges
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mentioned in this Lease. Landlord shall notify
Tenant of such taking not later than the date of
delivery of the Design Package unless such taking is
made necessary by subsequent action of law or any
governmental body.
15. Temporary Utilities. Tenant agrees to pay for
utilities used or consumed in or supplied to the
Premises prior to opening for business. Tenant and
its contractors shall make arrangements for the
supply of utilities with the utility company and
shall promptly pay for the same.
16. Signs. The design and location of all signs, either
for the interior or the exterior of the Premises,
shall be subject to prior approval by Landlord and in
conformity with criteria set forth in the Design
Package. Tenant shall submit detailed sign drawings
to Landlord; and no sign shall be installed until
Landlord's written approval has been obtained by
Tenant.
17. Show Windows. All show window backgrounds, show
window floors and ceilings and show window lighting
installations shall be designed by Tenant and, when
approved by Landlord, shall be installed by Tenant.
18. Furniture and Fixtures. All furniture and fixtures
within the Premises shall be provided by Tenant and,
when approved by Landlord, shall be installed by
Tenant.
B. WORK DONE FOR TENANT BY LANDLORD, TENANT REIMBURSING LANDLORD
FOR THE COST OF SUCH WORK
1. Special Equipment. Landlord will, at Tenant's written
request and upon Landlord approval of Tenant's
drawings, provide structural revisions to the
building shell as are necessary to accommodate any
special equipment to be installed by Tenant pursuant
to paragraph IV.A.11.
2. Openings through Roof. In the event the roof is to
be penetrated by Tenant's special or electrical
equipment or otherwise, the Landlord's roofing
contractor will at Tenant's cost provide the
[NEED PAGE 9 - MISSING]
therefor, all expenses and damages in connection with the removal,
replacement and/or repair in a first-class workmanlike manner of any
other part of the Tenant's Work
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which may be damaged or disturbed thereby. All warranties or
guarantees as to materials or workmanship on or with respect to
Tenant's Work shall be contained in the contracts and subcontracts for
performance of Tenant's Work and shall be written so that they shall
inure to the benefit of Landlord and Tenant, as their respective
interests may appear, and so that they can be directly enforced by
either; and Tenant shall furnish to Landlord any assignment or other
assurances necessary to effectuate the intent and purpose of this
paragraph.
VI. CONSTRUCTION PROCEDURE:
The following provisions shall apply to Tenant's Work:
A. SCHEDULING
Tenant shall furnish Landlord, prior to the commencement of Tenant's
Work, with a detailed work schedule of all work to be performed by Tenant's
contractors and subcontractors, as well as the names, addresses and telephone
numbers of such contractors and subcontractors. No work which, in the sole
opinion of Landlord, causes noise, vibration, odor or dust which unduly
interferes with the conduct of business by other tenants of the shopping center
or with the enjoyment of the shopping center by it patrons shall be conducted
between 10:00 a.m. and 9:00 p.m. No deliveries of building materials,
equipment, fixtures or inventory shall be made to the Premises through the
atrium of the shopping center between 10:00 a.m. and 9:00 p.m.
B. MECHANICS LIEN POSTING
Tenant shall advise Landlord prior to the commencement of Tenant's
Work within the Premises and shall not commence said work until Landlord shall
have posted notices of non-liability for mechanics liens on and within the
Premises. Violation of this provision shall give Landlord the right to
terminate this Lease.
C. QUALITY
Tenant's Work shall be performed in a first-class and workmanlike
manner and shall be in good and usable condition at the date of completion
thereof.
D. FEES AND PERMITS
Tenant or Tenant's contractor shall pay for all necessary permits
and/or fees required by public authorities and/or utility companies with
respect to Tenant's Work.
E. DEBRIS
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It shall be Tenant's responsibility to cause each of Tenant's
contractors and subcontractors participating in Tenant's Work to remove, haul
away from the shopping center and dispose of, at least once a week, all debris
and rubbish caused by or resulting from the construction of Tenant's Work. No
construction waste, dirt, supplies or machinery and equipment may be placed in
areas or space exposed to the public under any circumstances. Upon completion
of Tenant's Work, Tenant shall cause its contractors to remove all temporary
structures, surplus materials, machinery and equipment, debris and rubbish of
whatever kind remaining in the building or within the shopping center, which
has been brought in or created by the contractors and subcontractors in the
construction of Tenant's Work. If Tenant fails to comply with the foregoing
responsibilities, then Landlord may cause the removal of all debris, rubbish,
material and equipment, and charge the cost thereof to Tenant, who agrees to
pay for the same within ten (10) days after billing.
F. PROTECTION
It shall be the Tenant's responsibility to cause each of Tenant's
contractors and subcontractors to maintain continuous protection of adjacent
premises in a manner as to prevent any damage to Tenant's Work or adjacent
property, improvements and contents by reason of the performance of Tenant's
Work. Each contractor and subcontractor shall properly protect Tenant's Work
with lights, guard rails and barricades and shall secure all parts of Tenant's
Work against accident, storm and any other hazard.
G. COORDINATION OF TENANT'S WORK
Tenant at all times will enforce strict discipline and good order
among its employees and contractors hired to perform Tenant's Work. If
Tenant's employees, agents or contractors cause any dispute or stoppages among
other contractors performing work in the shopping center, Landlord shall have
the right to order Tenant to terminate any construction work at any time (i.e.
either in the initial construction of the Premises or at any time during the
lease term) being performed by or on behalf of Tenant in the Premises. Upon
notification from Landlord to Tenant to cease any such work, Tenant shall
forthwith remove from the Premises all agents, employees and contractors of
Tenant performing such work, until such time as Landlord shall have given its
written consent for the resumption of such construction work, and Tenant shall
have no claim for damages of any nature whatsoever against Landlord in
connection therewith. Tenant shall use, and Tenant shall require its
contractors and subcontractors to use, every effort to prevent work stoppages
in the Premises or elsewhere in the shopping center, to the extent attributable
to work being performed in the Premises, irrespective of the reason for any
such stoppage, in recognition of the fact that it is of the utmost importance
to Landlord, Tenant and all those occupying space in the shopping center that
there be
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no interruptions in the progress and completion of the construction work. In
any contract or undertaking which Tenant may make or enter into with a
contractor or subcontractor for work to be performed in the Premises, provision
shall be made for the dismissal from the job for stoppage of work as herein
provided. Landlord may assign specific entrances to the shopping center to be
used by one, several or all of Tenant's contractors and subcontractors, and
Tenant agrees to require strict compliance with the same.
VII. INSURANCE REQUIREMENTS:
A. BUILDERS RISK INSURANCE
At all times during the period between the commencement of
construction of Tenant's Work and the opening for business in the Premises,
Tenant shall maintain, or cause to be maintained, casualty insurance in
Builder's Risk Form, covering Landlord, Landlord's agents, Landlord's
Architect, Landlord's contractor or subcontractors (if any), Tenant and
Tenant's contractors, as their interest may appear, against loss or damage by
fire, vandalism and malicious mischief and other such risks as are customarily
covered by the so-called "all risk endorsement" upon all Tenant's Work in place
and all materials stored at the site of Tenant's Work and all materials,
equipment, supplies and temporary structures of all kinds incident to Tenant's
Work and builder's machinery, tools and equipment, all while forming a part of,
or contained in, such improvements or temporary structures while on the
Premises or when adjacent thereto, while on malls, drives, sidewalks, streets
or alleys, all to the full insurable value thereof at all times. Said
Builder's Risk Insurance shall contain an express waiver of any right of
subrogation by the insurance company against Landlord, its agents, employees
and contractors.
B. WORKER'S COMPENSATION
At all times during the period of construction of Tenant's Work,
Tenant's contractors and subcontractors shall maintain in effect statutory
Worker's Compensation and Occupational Disease Insurance as required by the
State of Minnesota.
C. PUBLIC LIABILITY INSURANCE
1. Contractors' Public Liability Insurance. Tenant's
contractors and subcontractors shall maintain in
effect Comprehensive General Liability Insurance
(including Contractor's Protective Liability) in an
amount not less than Five Hundred Thousand Dollars
($500,000.00) per person and One Million Dollars
($1,000,000.00) per occurrence whether involving
personal injury liability (or death resulting
therefrom) or property damage liability or a
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combination thereof with a minimum aggregate limit of
One Million Dollars ($1,000,000.00). Such insurance
shall provide for explosion and collapse coverage and
contractual liability coverage and shall insure the
general contractor and/or subcontractors against any
and all claims for personal injury, including death
resulting therefrom, and damage to the property of
others and arising from his or her operations in
connection with Tenant's Work and whether such
operations are performed by the general contractor,
subcontractors or any of their subcontractors, or by
anyone directly or indirectly employed by any of
them.
2. Tenant's Public Liability Insurance. Within ten (10)
days after delivery by Landlord to Tenant of the
Design Package (provided under Paragraph I hereof),
Tenant shall secure and cause to be maintained in
effect at all times thereafter until the termination
of this Lease, at Tenant's cost and expense a
Comprehensive General Liability Policy, on an
occurrence personal injury and property damage basis
with limits of not less than One Million Dollars
($1,000,000.00) including Property Damage, Water
Damage, and Sprinkler Leakage Liability. The
Liability policy shall be on a Comprehensive General
and Automobile Liability form and shall include, but
not be limited to, coverage for all operations of
Tenant with respect to Premises, Tenant's contractor
and subcontractors, including automobile coverage
(for both owned and non-owned vehicles), contractual
liability (provided under Paragraph VIII hereof),
completed operations liability and contingent or
protective liability.
3. UMBRELLA COVERAGE. In addition, Tenant shall secure
and maintain umbrella coverage of at least One
Million Dollars ($1,000,000.00) over amounts
specified in subparagraphs 1 and 2, above.
D. CANCELLATION
The policies of insurance referred to in this Paragraph VII shall
contain the following endorsement: "It is understood and agreed that the
coverage of this policy shall not be canceled or modified by the company until
the company has mailed written notice, by registered or certified mail, to
Landlord stating when (but in no event less than twenty (20) days thereafter)
such cancellation or modification in coverage shall be effective."
E. CERTIFICATES
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Prior to the commencement of Tenant's Work, Tenant and Tenant's
contractor or subcontractors shall provide Landlord with a copy of a
Certificate or Memorandum of Insurance showing complete coverage as required
under subsection A, B and C of this Paragraph VII
VIII. INDEMNITY:
It is agreed that Tenant assumes the entire responsibility and
liability, for any and all injuries or death of any or all persons, including
Tenant's contractor and subcontractors, and their respective employees and for
any and all damages to property caused by, or resulting from or arising out of
any act or omission on the part of the Tenant, Tenant's contractor or
subcontractors or their respective employees, in the prosecution of the
Tenant's Work and with respect to such work agrees to indemnify and save
harmless the Landlord, the fee owner and any ground or underlying ground
lessors of the shopping center from and against all losses and/or expenses
including reasonable legal fees and expenses, which they may suffer or pay as
the result of claims or lawsuits due to, because of, or arising out of any and
all such injuries or death and/or damage, whether real or alleged and Tenant
and Tenant's contractor and/or subcontractors shall assume and defend at their
own expense all such claims or lawsuits. Tenant agrees to insure this assumed
liability in its Comprehensive General Liability Policy and the Certificate of
Insurance or copy of the policy that the Tenant will present to Landlord shall
so indicate such contractual coverage.
IX. TEMPORARY STORE FRONT:
Tenant shall erect and install, at its own cost and expense, a
temporary decorative and noncombustible storefront enclosure in accordance with
Landlord's standard design and color criteria, until the Premises are
completely enclosed by the permanent storefront. Tenant's storefront shall not
extend beyond the lease line during the period commencing November 1 and ending
December 25, it being the desire of the parties not to impair visibility of
adjacent premises during the pre-Christmas holiday selling period.
X. STOPPAGE OF TENANT'S WORK:
If Tenant's Work in the Premises is not completed during pre-Christmas
and/or pre-Easter holiday selling periods and Tenant's Work creates noise,
vibrations or odors, Landlord shall have the right to order Tenant to terminate
any and all construction work being performed by or on behalf of Tenant in the
Premises and/or the shopping center. Upon notification from Landlord to Tenant
to cease any such work, Tenant shall forthwith remove from the Premises all
agents, employees and contractors of Tenant performing such work and Tenant
shall have no claim for damages of any nature whatsoever against Landlord in
connection therewith. Landlord
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shall have the right to establish rules and regulations for all work under this
Paragraph, and Tenant agrees to enforce the same.
XI. COMMENCEMENT OF TENANT'S WORK:
Following Landlord's approval of Tenant's working drawings Tenant
agrees to employ contractors and subcontractors to perform Tenant's Work in
accordance with the said approved working drawings Tenant's Work will be
commenced promptly after Landlord's approval of Tenant's working drawings.
XII. COMPLETION OF TENANT'S WORK:
Within a period of ninety (90) days after the Design Package is sent
to Tenant, or by the Commencement Date otherwise specified in the Lease,
whichever is earlier, Tenant shall cause its contractors and subcontractors to
complete Tenant's Work in the premises, and Tenant shall cause its trade
fixtures and merchandise to be installed and stocked in the Premises and be
ready to open for business.
XIII. DELAY:
Tenant agrees that the respective time periods hereinabove set forth
for the submission and/or revision or correction of Tenant's plans and the
commencement and the completion of Tenant's Work shall be of the essence of
this Lease. If Tenant fails or omits to make timely submission to Landlord of
any plans or specifications or unreasonably delays in submitting or supplying
information concerning the revision and/or correction thereof or in commencing
to perform or performing or completing Tenant's Work, Landlord may in addition
to any other right or remedy it may have, give Tenant at least ten (10) days'
written notice that if a specified failure, omission or delay is not cured by
the date therein stated, this Lease be deemed canceled and terminated. If such
notice shall not be complied with, this Lease shall, on the date stated in such
notice, automatically be canceled and terminated, without prejudice to
Landlord's other rights under this Lease or pursuant to law.
XIV. SECURITY FOR TENANT'S WORK:
Landlord may require Tenant, before entering on the Premises for any
purpose, or at any time before the completion of Tenant's Work, to give
Landlord proof reasonably satisfactory to Landlord, of Tenant's financial
ability to complete and fully pay for Tenant's Work prior to opening for
business and in addition thereto, Landlord may require Tenant (a) to furnish to
Landlord a payment and performance bond in an amount satisfactory to Landlord
written by a surety company licensed and authorized to issue such bonds in
Minnesota, guaranteeing the payment and performance of Tenant's work free of
mechanic's or other liens, or (b) to deposit in escrow with Landlord an amount
equal to one hundred percent
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(100%) of the estimated sum required to complete Tenant's Work. Landlord shall
release portions of such escrow deposit to pay bills as Tenant's Work
progresses, providing however, for a fifteen percent (15%) retention until
Tenant's full compliance with the requirements of this Exhibit C. Should Tenant
fully comply with the requirements of this Exhibit C, said deposit shall be
returned to Tenant, less any portion thereof which may have been applied to
compensate Landlord for any loss or damages sustained by Landlord due to any
breach on the part of Tenant.
XV. REQUIREMENTS UPON COMPLETION:
Upon the completion of Tenant's Work but in no event later than thirty
(30) days after completion of the Premises, Tenant shall deliver to Landlord
and/or comply with the following: (1) Tenant's affidavit stating that Tenant's
Work has been substantially completed in compliance with Exhibit C and Tenant's
approved working drawings, and which affidavit shall include a reasonably
itemized general breakdown of Tenant's final and total construction costs,
together with proof, reasonably satisfactory to Landlord, of payment thereof;
and a statement, if such be the case, that no security interests under the
Uniform Commercial Code or chattel mortgages are outstanding or have been
filed. Such affidavit may be relied upon by Landlord, it being understood that
any deliberate misstatement by Tenant therein shall constitute an Event of
Default hereunder; (2) an affidavit of the general contractor or contractors
performing Tenant's Work stating that Tenant's Work has been fully completed in
compliance with Exhibit C and Tenant's approved working drawings (plans) and
specifications and that all subcontractors, laborers and material suppliers,
who supplied labor and/or material for Tenant's Work (whose names and addresses
shall be recited in the affidavit) have been paid in full; and proof that all
liens therefor have been waived or, if filed, have been discharged of record;
(3) complete releases and waivers of liens with respect to the Premises and
shopping center, executed by said contractor or subcontractors supplying labor
and/or materials for Tenant's Work; (4) the written certification by Tenant's
architect that Tenant has fully completed all of Tenant's Work in compliance
with this Exhibit C; (5) reimbursed Landlord for the cost of any of Tenant's
Work done for or on behalf of Tenant, as set forth in Exhibit C or otherwise;
(6) all certificates and approvals with respect to Tenant's Work that may be
required by any governmental authorities as a condition for the issuance of a
Certificate of Occupancy for the Premises; (7) the estoppel certificate
referred to and mentioned in Article III of this Lease; and (8) copies of
approved manufacturer's literature or catalogue relating to equipment and
machinery installed by Tenant within the Premises (including heating,
ventilating and air conditioning equipment).
XVI. INSPECTION:
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Landlord or Landlord's representative shall, during the course of
construction and after completion of construction of the Premises, have the
right to inspect the Premises to verify completion in accordance with the
approved working drawings (plans) and specifications.
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EXHIBIT E
GUARANTY
In consideration of, and as an inducement for the granting, execution
and delivery of a certain Lease dated ______________, 199_ (herein the
"Lease"), by Calhoun Square Associates Limited Partnership, the Landlord
therein named, to Dave's BAR-B-QUE & Blues, Inc. (herein the "Tenant"), the
undersigned (herein the "Guarantor"), hereby guarantees to Landlord, its
successors and assigns, the full and prompt payment of Rent (including Minimum
Rent, Percentage Rent and Additional Rent, as defined in the Lease), and any
and all other sums and charges payable by Tenant, its successors and assigns,
under the Lease, and hereby further guarantees the full and timely performance
and observance of all the covenants, terms, conditions and agreements of the
Lease to be performed and observed by Tenant, its successors and assigns; and
Guarantor hereby covenants and agrees to and with Landlord, its successors and
assigns, that if default shall at any time be made by Tenant, its successors
and assigns in the payment of Rent, or if Tenant should default in the
performance and observance of any of the terms, covenants, provisions or
conditions contained in this Lease, Guarantor shall and will forthwith pay such
Rent to Landlord, its successors and assigns, and any arrears thereof, and
shall and will forthwith faithfully perform and fulfill all of such terms,
covenants, conditions and provisions, and will forthwith pay to Landlord all
damages that may arise in consequence of any default by Tenant, its successors
and assigns, under the Lease, including without limitation, all reasonable
attorneys' fees and disbursements incurred by Landlord or caused by any such
default and/or by the enforcement of this Guaranty.
The foregoing notwithstanding, Guarantor shall not be liable for any
defaults by Tenant which occur or arise after the date which is five (5) years
after the Commencement Date of the Lease. Guarantor shall, in any event, be
liable for all costs, disbursements and reasonable attorneys' fees incurred by
Landlord with respect to or arising out of the enforcement of this Guaranty.
THIS GUARANTY IS AN ABSOLUTE AND UNCONDITIONAL GUARANTY OF PAYMENT AND
PERFORMANCE. It shall be enforceable against Guarantor, its successors and
assigns, without the necessity for any suit or proceedings on Landlord's part
of any kind or nature whatsoever against Tenant, its successors and assigns,
and without the necessity of notice of non-payment, non-performance or
non-observance or of any notice of acceptance of this Guaranty or of any other
notice or demand to which Guarantor might otherwise be entitled, all of which
the Guarantor hereby expressly waives, and Guarantor hereby expressly agrees
that the validity of this Guaranty and the obligations of the Guarantor
hereunder shall not be terminated, affected, diminished or impaired by reason
of the assertion or the failure to assert by Landlord against Tenant, or
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against Tenant's successors or assigns, of any of the rights or remedies
reserved to Landlord pursuant to the provisions of the Lease.
This Guaranty shall be a continuing Guaranty and the liability of
Guarantor hereunder shall in no way be affected, modified of diminished by
reason of any modification or extension of the Lease or by reason of any
modification or waiver of or change in any of the terms, covenants, conditions
or provisions of the Lease by Landlord and Tenant, or by reason of any
extension of time that may be granted by Landlord and Tenant, its successors
and assigns, or by reason of any dealing or transactions or matter or thing
occurring between Landlord and Tenant, its successors and assigns, or by reason
of any bankruptcy, insolvency, reorganization, arrangement, assignment for the
benefit of creditors, receivership or trusteeship affecting Tenant, whether or
not notice thereof or of any thereof is given to Guarantor.
Guarantor warrants and represents to Landlord that it has the legal
right and capacity to execute this Guaranty.
All of the Landlord's rights and remedies under the Lease or under
this guaranty are intended to be distinct, separate and cumulative, and no such
right or remedy therein or herein mentioned is intended to be in exclusion of
or a waiver of any other right or remedy available to Landlord.
As used herein, the term "successors and assigns" shall be deemed to
include the heirs and legal representatives of Tenant and Guarantor, as the
case may be.
This Guaranty shall be governed by and construed in accordance with
the laws of the State of Minnesota.
Guarantor agrees that within 10 days after any request therefor by
Landlord, Guarantor will execute, acknowledge and deliver to Landlord or to any
proposed purchaser of the shopping center or any proposed lender designated by
Landlord, a written statement certifying that this Guaranty is unmodified (or
stating any such modifications) and in full force and effect and that Guarantor
has no defenses or offsets against the enforcement of this Guaranty.
IN WITNESS WHEREOF, the Guarantor has executed this ____ day of
______________ 19__.
______________________________
David Anderson, Guarantor
STATE OF MINNESOTA )
)ss.
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COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day _____ of
___________, 19__ by _________________________.
________________________________________
Notary Public
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EXHIBIT F
TO LEASE BETWEEN
CALHOUN SQUARE ASSOCIATES LIMITED PARTNERSHIP
AND LAKE & HENNEPIN BBQ AND BLUES, INC.
SECTION 1. Article II, Section 1 is amended by adding the words "and green"
following the word "red" in the third line thereof; and is further amended by
deleting the fifth sentence: "Landlord shall be entitled to permit other
tenants, utility companies and others to exercise such rights" and by inserting
in lieu thereof the following sentence: "Landlord shall be entitled to permit
utility companies and Landlord's agents and employees to exercise such rights.
Landlord and anyone else exercising such rights shall use reasonable efforts to
avoid diminishment of the usable space of the Premises or unreasonable
interference with Tenant's use and enjoyment of the Premises. Landlord shall
expeditiously repair at its expense any affected areas. When economically
reasonable, structurally feasible and necessary to avoid significant,
detrimental impact to the appearance of the Premises, such pipes, ducts,
conduits, vents and wires shall be installed and concealed behind the walls,
columns and ceilings. Except in the case of emergencies, Landlord shall give
reasonable prior notice of any entry into the Premises (whether pursuant to
Article II or any other provision of the Lease, notwithstanding any provision
to the contrary herein or therein) and enter the Premises only at reasonable
times.
SECTION 2. Article II, Section 1 is further amended by adding at the end
thereof the following:
No such change shall materially and adversely affect access to or
visibility of the Premises nor result in the closing of the shopping
center exterior doors located adjacent to the Premises nor in the
relocation of the parking ramp.
SECTION 3. Article II, Section 3 is amended by adding after the first sentence
thereof the following:
Nothing herein shall be deemed to authorize Landlord to shift the
location of the Premises without the consent of Tenant.
SECTION 4. Article II, Section 3 is further amended by deleting the last
sentence thereof and inserting the following:
The area of the patio and any storage areas separately leased to
Tenant shall be excluded in any calculation of the gross leasable
area of the Premises. The area of the Farmers Market Area shall be
included in calculating the gross leasable area of the Premises.
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SECTION 5. Article II is amended by adding a new Section 5 thereto reading as
follows:
SECTION 5. If at any time during the term or extended term of the
Lease, storage space in the basement of the shopping center becomes
available for lease, and Tenant has previously notified Landlord of
its desire to lease basement storage space, Tenant shall have the
option to lease said space at the then current market rate as
determined by Landlord; provided, however, that Tenant's right to
lease any such space is subject to the rights of other tenants granted
previous to the date of this Lease. Tenant is granted the further
option, exercisable by notice to Landlord given within sixty days of
the date hereof, to construct storage areas in either or both of the
locations outlined in blue on attached Exhibit B. Any such storage
areas shall be improved only after Landlord has approved the plans and
specifications therefore. Rent for any such storage space within the
present exterior walls of the shopping center shall be payable from
and after the earlier of August 1, 1996 or the date on which Tenant
first uses said space. Through December 31, 1996 the gross rental
rate shall be $6.50 per square foot of rentable area. On January 1,
1997 and on each January 1 thereafter during the term, rent shall be
adjusted to reflect any change in the Price Index as defined in
Article XXXIV, Section 15. No rent shall be payable for any storage
space built by Tenant and located outside of the present exterior
walls of the shopping center. The term of any storage lease entered
into pursuant to these options shall be coterminous with the term of
the Lease for the Premises. A default in Tenant's performance of the
terms and conditions of any lease for storage space shall also be an
"event of default" within the meaning of Article XXIV of this Lease
entitling Landlord to exercise its remedies as provided in said
Article as to the Premises and as to the storage space. Any storage
space leased shall be delivered in "AS IS" condition. Landlord's
standard storage space lease reflecting the foregoing terms shall be
executed by the parties.
SECTION 6. Article II is further amended by adding a new Section 6 thereto
reading as follows:
SECTION 6. Tenant covenants and agrees that the total capitalized
costs of the project determined in accordance with generally accepted
accounting principles (but excluding pre-opening expenses in excess of
$50,000, and consulting, development or similar fees paid or payable
to Tenant, or to David Anderson or to entities affiliated or related
to either of them) shall be not less than $700,000. Tenant shall
provide Landlord promptly after substantial completion of the tenant
improvements with paid invoices, mechanics' lien waivers or other
evidence reasonably acceptable to Landlord of the project costs
showing that Tenant has performed its
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obligations under this Section 6. Tenant shall have the right to
enclose the Farmers Market Area (outlined in green on attached Exhibit
B). All such work shall be done at Tenant's sole expense pursuant to
plans and specifications approved by Landlord in writing prior to the
commencement of construction.
SECTION 7. Article II is further amended by adding a new Section 7 thereto
reading as follows:
SECTION 7. Landlord represents to Tenant that it is the fee owner or
ground lessee of the property described in Exhibit A to the Lease,
that to the best of its knowledge, its ownership is subject to the
encumbrances described on Exhibit A-1 to the Lease and that the
shopping center and the parking ramp, as they presently exist, are
located on the property described on Exhibit A.
SECTION 8. Article III is amended by adding a new Section 3 thereto reading as
follows:
SECTION 3. The term of this Lease may be extended for two (2)
additional terms of five (5) years each if Tenant effectively
exercises its option to do so in the manner hereinafter set forth.
Such additional terms shall be on the same covenants, agreements and
conditions contained in this Lease for the original term except that
(1) if Tenant fails to effectively exercise its first option to extend
the term Tenant shall have no second option, (2) Tenant shall have no
options to further extend the term, and (3) the annual minimum rent
and percentage rent payable during the option periods shall be
calculated as set forth in Article I, paragraphs 4 and 5. If Tenant
gives Landlord written notice of Tenant's election to extend the term
of this Lease not later than one hundred eighty (180) days prior to
the expiration of the initial term of this Lease, or prior to the
expiration of the first five-year extended term, as the case may be,
and if Tenant is not in default in the performance or observance of
any covenant, agreement or condition of this Lease at the time such
notice is given or on the expiration date of the relevant term of the
Lease, the term of this Lease shall have been effectively extended by
Tenant for the first or second additional five-year period.
SECTION 9. Article III is amended by adding a new Section 4 thereto reading as
follows:
SECTION 4. Tenant shall be permitted to enter the Premises to begin
its tenant's improvements on the date on which Landlord has finally
approved Tenant's working drawings, the contingency set forth in
Exhibit F, Section 67(b) as to a nondisturbance agreement has either
been satisfied by Landlord or waived by Tenant, and the contingency
set forth in Exhibit
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F, Section 67(c) as to the ground lease has either been satisfied or
waived by Tenant. Tenant's occupancy of the Premises between the date
of entry and the Commencement Date shall be upon all of the terms and
conditions of the Lease, except that Tenant's only occupancy costs
shall be as provided in Exhibit C with respect to temporary utilities.
SECTION 10. Article IV, Section 2 is deleted and the following is substituted
in lieu thereof:
Except as expressly provided in Article I, paragraphs 4 and 5, and in
Exhibit F, Section 13, Tenant waives and disclaims any present or
future right to apply any liability or obligation of Landlord, however
incurred, as a set-off or other reduction against any payment or part
payment of rent (including minimum rent, percentage rent and
additional rent) due from Tenant hereunder unless and until such
liability or obligation of Landlord to Tenant has been established by
a judgment rendered by a court of competent jurisdiction with all
rights of appeal or review having been waived or expired.
SECTION 11. Article V, Section 1 is amended by replacing the phrase "February
1" with the phrase "June 1" and by replacing the phrase "January 31" with the
phrase "May 30." The last sentence of the first grammatical paragraph of said
Section 1 is amended by adding at the end thereof the phrase, "except as
expressly provided in Article I, paragraph 5."
SECTION 12. Article V, Section 1 is further amended by deleting the second
grammatical paragraph and inserting in lieu thereof the following:
Percentage rent, if any, for the fiscal year ending May 30, 1997 shall
be due and payable in full on or before June 30, 1997. Thereafter,
percentage rent shall be determined and payable quarterly on or before
the fifteenth (15th) day following the close of each such quarterly
period during the term based on year-to-date gross sales for the
fiscal year in which the quarter occurs. Quarters end on August 31,
November 30, February 28 (or 29) and May 30. The "annual breakpoint"
for each full fiscal year during the first ten years of the term is
$2,520,000. The "annual breakpoint" for the next five years of the
term is $3,360,000. The "annual breakpoint" for the first five year
extended term is $3,640,000. The "annual breakpoint" for the second
five year extended term is $4,200,000. The first quarterly payment
shall be five percent (5%) of the amount by which Tenant's gross sales
for the first quarter exceed one-quarter of the relevant annual
breakpoint. The second quarterly payment shall be five percent (5%) of
the amount by which Tenant's gross sales for the first two quarters
exceed one-half of the relevant annual breakpoint. The third quarterly
payment shall be five percent
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(5%) of the amount by which Tenant's gross sales for the first three
quarters exceed three-fourths of the relevant annual breakpoint. The
fourth quarterly payment shall be five percent (5%) of the amount by
which Tenant's gross sales for the year exceed the relevant annual
breakpoint. The percentage rent credit provided for in Article I,
paragraph 5 for each of the first five full fiscal years shall be
taken against the first payments of percentage rent due hereunder.
Further, if at the end of any such fiscal year the credit taken by
Tenant in preceding quarters exceeds the amount of credit for which
Tenant is eligible for the year, then Tenant shall, not later that
fifteen (15) days after the end of the fiscal year, pay to Landlord
the amount of the excess. If, at the end of any Fiscal Year, the
total amount of estimated percentage rent paid by Tenant exceeds the
total amount of percentage rent required to be paid by Tenant for the
said Fiscal Year, Tenant shall, notwithstanding any provision in this
Lease to the contrary, have the right to off-set such excess against
the next payments of rent due hereunder. Any excess estimated
percentage rental paid during the last Fiscal Year of the lease term
will be refunded to Tenant as soon as the amount of such excess is
ascertained. If, at the end of any Fiscal Year, the total amount of
estimated percentage rent required to be paid by Tenant is less than
the total amount of percentage rent required to be paid by Tenant for
said Fiscal Year, the balance shall be due and payable in full thirty
(30) days after the end of said Fiscal Year.
SECTION 13. Article V, Section 2 is amended by deleting the words "without
reserve or deduction for inability or failure to collect" from the fifth line
thereof, and by inserting after the sentence that ends "to shippers or
manufacturers" the following:
In addition to the above, the following will specifically be excluded
from Gross Sales for purposes of computing Percentage Rent: (i) Sales
to employees of Tenant at a discount, to the extent said sales do not
exceed two percent (2%) of annual Gross Sales; (ii) sales of
merchandise bearing Tenant's trade name or logo to the extent said
sales do not exceed $200,000; (iii) the amount of any sale paid for by
check or credit card where the check is uncollectible or the credit
card charge is not paid by the card issuer; (iv) proceeds from the
sale of pre-recorded music by artists appearing live at the Premises
and of merchandise such as t-shirts and hats related to such artists;
and (v) cover charges and event fees collected by Tenant in connection
with live entertainment at the Premises. Notwithstanding the
foregoing, the full retail price of any food, beverage, pre-recorded
music and merchandise provided without charge to persons in
consideration of the payment of a cover charge or event fee, or the
value of any discount on the purchase of the same given in
consideration of the payment of a cover charge or event fee shall be
included in gross
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sales. To the extent Tenant earns a "profit" from the activities
described in subparagraphs (iv) and (v) above, such "profit" shall be
included in gross sales. For purposes of the foregoing, "profit"
shall mean the proceeds, charges and fees described in subparagraphs
(iv) and (v) above, less the following costs and expenses incurred by
Tenant and reasonably attributable to the performance of live music or
sale of prerecorded music and merchandise: (1) direct costs of
prerecorded music and t-shirts, hats and music-related merchandise;
(2) direct costs of live performance including contract and payments
for services, wages, fringe benefits, payroll taxes and insurance;
(3) costs and expenses of promoting live music performance including,
but not limited to, print and electronic media advertising; (4)
insurance; (5) security; (6) administration of live music performance;
(7) licenses; and (8) other directly related costs and expenses.
Article V, Section 2 is further amended by deleting the last sentence
thereof.
SECTION 14. Article V, Section 3 is amended by deleting the word "accurate"
from the third line, by inserting following the phrase "books and records" in
said third line the phrase "maintained in accordance with generally accepted
accounting principles," and by inserting after the words "reasonable times" in
the last line thereof the words "after notice to Tenant."
SECTION 15. Article V, Section 3 is amended by deleting the phrases "and gross
income tax reports" and "state gross income tax reports,".
SECTION 16. Article V, Section 4 is amended by deleting the words "entire
business affairs and" from the second sentence thereof. The second to the last
sentence of Article V, Section 4 is amended by deleting the words "two percent
(2%)" and inserting in lieu thereof the words "three percent (3%)" and by
inserting the word "reasonable" before the words "cost of said audit."
SECTION 17. Notwithstanding the provisions of Article V, Section 4 to the
contrary, Landlord shall be permitted to terminate the Lease on account of
under-reported sales only if two such audits in any five-year period disclose a
liability for percentage rent to the extent of three percent (3%) or more in
excess of the percentage rentals therefor computed and paid for by Tenant.
SECTION 18. Article VI is amended by deleting the words "by a certified public
accountant" in the second sentence and inserting in lieu thereof the words, "by
Tenant if Tenant is an individual, by the chief financial officer of Tenant if
Tenant is a corporation or by a general partner of Tenant if Tenant is a
partnership."
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SECTION 19. Article VII, Section 2 is amended by adding after the words "If
Tenant shall fail" in the first line the words "on three or more occasions
during any lease year" and by adding after the words "Tenant shall" in the
second line the words "on the third and any subsequent occasions during such
lease year."
SECTION 20. Article VIII, Section 1 is amended by adding at the end thereof
the following:
All equipment and fixtures in the Premises as of the date hereof may
be used or disposed of by Tenant in its discretion.
SECTION 21. Article VIII, Section 2 is amended by deleting said Section in its
entirety and inserting a new Section 2 in lieu thereof as follows:
Tenant's contractors, subcontractors and material suppliers shall be
subject to Landlord's prior approval. All tenant improvements done in
the Premises shall be performed by professional contractors.
Contractor's and any subcontractors' workers shall work in harmony
with workers of other contractors at the Shopping Center. In the
event of any actual or threatened picketing of the Shopping Center
related in any way to the performance of Tenant's Work, Landlord shall
have the right to require Tenant's contractor's and subcontractors'
workers to immediately stop construction and leave the Premises and
the Shopping Center. In the event Tenant's contractor's and
subcontractors' workers are required to leave the Premises pursuant to
the operation of this Section, Tenant shall not receive any extension
of time in which Tenant's Work is required to be completed.
SECTION 22. Article IX, Section 1 is hereby deleted and the following is
substituted in lieu thereof:
The Premises may be used and occupied by Tenant solely under Tenant's
trade name and solely for the purposes specified in Article I,
paragraph 3 hereof. Tenant shall not use or permit the Premises to be
used to any other purpose or purposes or under any other trade name
without the prior written consent of Landlord. Tenant shall at all
times operate in and promote the Premises as a first quality
restaurant and, if a license can be secured, bar. Tenant agrees to
utilize the Premises during the entire term of the Lease and any
extensions thereof in such a manner as will produce the maximum amount
of percentage rent from the Premises Tenant shall promptly comply with
all laws (including the Americans with Disabilities Act), ordinances,
governmental orders and regulations, and all insurance company
requirements affecting the Premises and the cleanliness, safety, use
and occupation thereof. Tenant covenants, agrees and represents that
of Tenant's gross sales (as defined in Article V, Section 1)
attributable to food and
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liquor in any fiscal year at least sixty percent (60%) will consist of
food sales and that no more than forty percent (40%) will consist of
liquor sales. Tenant agrees to provide Landlord with a breakdown of
its gross sales between food sales and liquor sales as part of its
monthly sales reports submitted pursuant to Article VI of the Lease.
Monthly statements shall also contain a "year-to-date" breakdown of
sales between food and liquor sales. Such breakdown shall also be
certified in the manner required with respect to Tenant's monthly
statement of gross sales pursuant to Article VI of the Lease. Tenant
shall also provide Landlord with a copy of Tenant's annual liquor
license renewal application at the time such application is filed with
the City of Minneapolis.
SECTION 23. Article IX, Section 2 is amended by adding at the end thereof the
following:
Notwithstanding the foregoing and provided Tenant is not in default of
its obligations under the Lease beyond applicable cure periods,
Landlord shall not enter into a lease wherein the tenant is permitted
to operate as its principal business in the shopping center a
full-service restaurant and bar specializing in the sale of bar-b-que
meat and/or poultry.
SECTION 24. Article IX, Section 3 is amended by inserting at the end thereof
the following:
Notwithstanding the foregoing, Landlord consents to the presentation
of live, amplified music in the Premises and agrees that Tenant will
not be deemed to be in default of the Lease provided that Tenant
strictly complies with all ordinances, rules and regulations of the
City of Minneapolis having to do with the presentation of live music
or having to do with noise, sound or nuisance, that live music be
presented only after 9:00 p.m., that the sound not be transmitted or
broadcast to the adjacent patio and that doors leading to the patio
will not be propped open while live music is being presented. Nothing
herein or elsewhere in the Lease shall be deemed to require Tenant to
present live music in the Premises at any time.
SECTION 25. Article X, Section 2 is amended by inserting at the beginning
thereof the following:
Landlord has constructed a parking ramp which serves the shopping
center. Landlord agrees that during the lease term it will not by its
own intentional act reduce the parking capacity serving the shopping
center to less than the capacity to park 325 cars.
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Article X, Section 2 is further amended by deleting the second
sentence thereof. Article X, Section 2 is further amended by adding
at the end thereof the following:
Tenant shall take reasonable steps to discourage employee parking in
the parking ramp, particularly during holiday shopping seasons, at
Landlord's request.
Tenant shall be permitted to purchase four monthly parking permits for
the Calhoun Square parking ramp at the rates from time to time charged
by Landlord to the public. Tenant shall not, however, have a
designated or reserved space in the parking ramp.
Landlord agrees to install signs on the four (4) metered parking
spaces located along Girard Avenue immediately behind the shopping
center and located closest to the Premises which signs shall indicate
that such parking spaces are for the use of Tenant's "take-out"
customers only between the hours of 5:00 p.m. and 11:00 p.m. daily and
which designate a 15-minute time limit for their use. The design and
text of such signs must be approved in advance by Landlord and
prepared by Tenant. Users of the spaces shall pay the then-current
parking meter rates. Landlord shall have no obligation to monitor or
control the use of such parking spaces.
SECTION 26. Article X, Section 3 is amended by adding at the end of the second
sentence thereof, ", provided, however, that Landlord shall endeavor to manage,
operate and maintain the shopping center in a manner which is consistent with
other first class shopping centers in the Twin Cities metropolitan area.
Landlord, and not Tenant, shall be responsible for the compliance of the common
areas of the shopping center with the provisions of the Americans with
Disabilities Act."
SECTION 27. Article X, Section 4 is amended by adding at the end thereof the
following:
Tenant shall have the right to examine and/or audit Landlord's books
and records in connection with expenses of which Tenant is required to
pay its proportionate share as provided in this Section 4. Any such
examination or audit shall be conducted at Landlord's offices at
Tenant's sole cost and expense during reasonable business hours and
without unreasonable frequency.
SECTION 28. Article XI, Section 1 is amended by deleting the phrase "or by
reason of anyone illegally entering in or upon the Premises," from the third
sentence thereof.
SECTION 29. Article XI, Section 2 is amended by adding at the end of the first
sentence the words "exclusively serving the Premises" and by adding after the
first sentence thereof the following:
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Without limiting the foregoing obligations of Tenant, Tenant shall
enter into one or more agreements, the form and substance of which shall be
subject to Landlord's reasonable approval, for the regular preventative
maintenance of the heating, ventilating (including cooking ventilation), gas
and sewage systems and/or equipment serving the Premises. Such agreement(s)
shall provide for inspection and maintenance by contractor(s) approved by
Landlord at least once each calendar quarter, or more frequently if necessary
to comply with the recommendations of manufacturers or installers of such
systems and equipment. Tenant shall, if requested by Landlord, submit to
Landlord at least once each calendar quarter evidence of the completion of the
inspection and any maintenance required hereby or recommended by the inspecting
contractor(s). Landlord reserves the right to inspect or retain a consultant
to inspect the Premises at reasonable times to insure that the same are
operated and maintained in accordance with applicable codes, to verify that all
safety equipment is operating properly, and to verify that the requirements of
this Article are being met.
Article XI, Section 2 is further amended by deleting the phrase "five
(5) consecutive days" and inserting in lieu thereof the phrase "fifteen (15)
consecutive days."
SECTION 30. Article XI, Section 3 is amended by adding the words "of the
Premises" following the words "structural portions."
SECTION 31. Article XII, Section 1 is amended by adding at the end thereof the
following:
Notwithstanding the foregoing, Tenant shall be entitled to one listing
on each shopping center directory. Subject to receipt of Landlord's
prior written approval as to content, materials, and method of
installation and to compliance with all applicable ordinances and
regulations, Tenant shall have: (a) the exclusive right to place
signage in the location depicted in Exhibit G-1, in the area (but at a
somewhat lower elevation as reasonably determined by Landlord)
depicted in Exhibit G-2, in the third floor window immediately below
the "Calhoun Square" sign and in the two windows immediately adjacent
to and on either side of such window as depicted in Exhibit G-3; (b)
the exclusive right to place a sign below the second floor windows and
above the shopping center entrance at the intersection of Hennepin and
Lake as depicted in Exhibit G-3; and (c) the non-exclusive right to
signage at the locations depicted in Exhibit G-4, G-5, G-6, G-7, G-8
and G-9 as part of a coordinated sign program developed by Landlord.
In the event Tenant installs signs as described in subparagraph (c)
above, before Landlord has finalized its coordinated sign program, and
if Tenant's signs are removed within two (2) years of the Commencement
Date such that Landlord can effectuate the coordinated sign program,
then Landlord shall
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reimburse Tenant's cost of the signs so removed. If as part of
Landlord's coordinated sign program, Tenant shares sign locations with
other tenants, Tenant's contribution to the cost of the shared sign(s)
shall be pro-rata based upon the total number of tenants on the shared
sign(s).
SECTION 32. Article XII, Section 2 is amended by deleting from the first
sentence thereof the phrase "or make any contract therefore".
SECTION 33. Article XIII, Section 1 is amended by adding at the end thereof
the following: Water, gas and electricity are separately metered at the
Premises, and Tenant's HVAC system is designed to serve only the Premises.
SECTION 34. Article XIII, Section 3 is amended by adding at the end thereof
the following:
Notwithstanding the foregoing, in the event that the furnishing of
utilities or other services to the Premises is materially and
substantially interrupted such that Tenant cannot conduct its business
in the Premises and such interruption is caused by Landlord rather
than by any supplier of utilities or services or any cause beyond
Landlord's reasonable control and such interruption continues for a
period in excess of five (5) consecutive days, then, thereafter,
Tenant's annual minimum rent shall be abated for the remaining period
of time such service is materially and substantially interfered with.
SECTION 35. Article XIV, Section 1 is amended by adding at the end of the
first grammatical paragraph thereof the following:
Tenant shall not be liable for all or part of any interest or penalty
assessed on account of Landlord's failure to timely pay taxes and
assessments. Landlord shall take reasonable steps to assure that the
assessment of the shopping center is fair, just and equitable.
SECTION 36. Article XIV, Section 2 is amended by adding at the end thereof the
following:
As of the date hereof, no rental taxes are paid or payable by Landlord
with respect to the shopping center.
SECTION 37. Article XV, Section 1 is amended by deleting the second
grammatical paragraph thereof and the following is inserted in lieu thereof:
For so long at Tenant is licensed to present and does present live
blues entertainment at least two evenings per week in the Premises,
Tenant shall not be required to make contributions to any Promotional
Fund established by Landlord for the
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shopping center. Otherwise, as Tenant's contribution toward the
advertising, promotion, public relations and administrative expenses
relating to the promotion of the shopping center for each lease year
of the lease term and any extended term, Tenant shall pay to Landlord
$0.75 per square foot of gross leasable area of the Premises, prorated
on a per diem basis in the case of a partial lease year, which sum
shall be payable in equal monthly installments in advance on the first
day of each calendar month of the lease term; provided that if the
Commencement Date of the lease is on a day other than the first day of
a calendar month, the first monthly installment shall be payable on
the Commencement Date and all subsequent payments shall be payable on
the first day of each calendar month of the lease term. The failure
of any other tenant to contribute to the Promotional Fund shall not
affect Tenant's obligations hereunder. On January 1, 1997 and on each
January 1 thereafter Tenant's contribution per square foot of leasable
area of the Premises shall be adjusted to an amount derived by
multiplying $0.75 by a fraction, the numerator of which is the "price
index" (as defined in Article XXXIV, Section 15) as of the date of the
adjustment and the denominator of which is the price index for
January, 1996
SECTION 38. Article XV, Sections 2, and 3 are deleted in their entirety.
SECTION 39. Article XV, Section 4 is amended by adding at the end thereof the
following:
Notwithstanding the foregoing or any provision of this Lease to the
contrary, Tenant shall not be required to pay dues or other amounts,
however characterized, to any Merchant's Association formed by
Landlord.
SECTION 40. Article XV, Section 5 is amended by adding after the first
sentence thereof the following:
Landlord shall endeavor to give Tenant reasonable notice of any name
change, but Landlord's failure to do so shall not be a default on the
part of the Landlord under the terms of this Lease.
SECTION 41. Article XVI, Section 1 is hereby deleted and the following is
inserted in lieu thereof:
Tenant shall indemnify and hold Landlord harmless against and from
liability and claims of any kind for loss or damage to property of
Tenant or any other person, except for willful misconduct or
negligence of Landlord, its agents, contractors, and employees, or for
any injury to or death of any person, arising out of: (a) Tenant's
use and occupancy of the Premises, or any work, activity or other
things allowed by
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Tenant to be done in or about the Premises; (b) any breach or default
by Tenant of any of Tenant's obligations under this Lease; or (c) any
negligent or otherwise tortious act or omission of Tenant, its agents,
employees, invitees or contractors. Tenant shall at Tenant's expense,
and by counsel satisfactory to Landlord and Tenant, defend Landlord in
any action arising from any such claim and shall indemnify Landlord
against all costs, attorneys' fees, expert witness fees and any other
expenses incurred in such action. As a material part of the
consideration for Landlord's execution of this Lease, Tenant hereby
assumes all risk of damage or injury to any person or property in or
about the Premises from any cause, including, without limitation, from
environmental contamination from any source whatsoever. Landlord
shall indemnify and hold Tenant harmless against and from liability
and claims of any kind for loss or damage to property of Landlord or
any other person, except for willful misconduct or negligence of
Tenant, its agents, employees, invitees or contractors, or for any
injury to or death of any person, arising out of: (a) any work,
activity or other things allowed by Landlord to be done in or about
the shopping center except for the Premises; or (b) any breach of
default by Landlord of any of Landlord's obligations under this Lease.
SECTION 42. Article XVII, Section 1 is amended by adding after the first
sentence the following:
Landlord agrees that it will maintain fire insurance in an amount as
is customary for similar retail shopping complexes.
SECTION 43. Article XVII, Section 2 is amended by deleting subparagraph (a) in
its entirety and substituting in lieu thereof the following:
(a) Commercial General Liability Insurance on an occurrence
personal injury and property damage basis with a minimum limit
of liability in the amount of two million dollars ($2,000,000)
covering only Tenant's operations at the Premises, including
water damage and sprinkler leakage legal liability. In
addition, Tenant shall maintain at all times during the term
and any extended term a two million dollar ($2,000,000)
umbrella policy covering Tenant's operations at the Premises
and, at Tenant's option, any of Tenant's other restaurants.
SECTION 44. Article XVII, Section 5 is amended by adding after the words
"consent to such use" in the fourth line thereof the words "and if Landlord's
insurer determines and notifies Landlord and Tenant that as a result of
Tenant's business carried on in the Premises the insurance premiums payable by
Landlord with respect to the shopping center have been increased,".
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SECTION 45. Article XVIII is amended by adding immediately after the first
sentence thereof the following: "Landlord shall not exhibit the Premises to
prospective tenants more than 180 days prior to the end of the lease term, or
any applicable extension thereof, and shall provide Tenant with reasonable
advance notice that the Premises will be so exhibited." Article XVIII is
further amended by adding after the words "damage by reason thereof" the words
"unless due to Landlord's negligence."
SECTION 46. Article XIX, Section and Section 2 are amended by substituting for
the word "building" wherever it appears the words "shopping center." Further,
notwithstanding any provision of the Lease to the contrary, if Landlord elects
not to rebuild the shopping center, the Lease shall terminate as of the date of
the destruction.
SECTION 47. Wherever in Articles XIX or XX either Landlord or Tenant has the
right to take action based upon the destruction, damage to or taking of a
specified percentage of the shopping center or the land or the Premises, the
percentage shall be determined by a construction professional (such as an
architect, engineer, or surveyor) having at least 10 years experience in the
construction industry who shall be selected by Landlord with the approval of
tenant (which approval shall not be unreasonably withheld or delayed).
SECTION 48. Article XX, Section 4 is amended by adding at the end thereof the
following:
Nothing herein contained shall be construed to preclude Tenant from
prosecuting any claim directly against the condemning authority, but
not against Landlord, and retaining any award for the unamortized cost
of Tenant's leasehold improvements (provided that leasehold
improvements shall be amortized at the same rate as Tenant elects to
depreciate the leasehold improvements for federal income tax purposes
and that the cost amortized shall be reduced by the amount of credit
taken by Tenant under Article I, paragraphs 4(b) and 5) and the value
of or damage to and/or for the cost of removal of Tenant's trade
fixtures and other personal property which under the terms of this
Lease would remain Tenant's property upon the expiration of the term
of this Lease, as may be recoverable by Tenant in Tenant's own right,
or from retaining any other awards specifically made to Tenant,
provided that no claim prosecuted by Tenant and no award retained by
Tenant shall, except as provided herein, diminish or otherwise affect
Landlord's award or be for any taking of the Premises, Tenant's
leasehold interest in the Premises, the building of which the Premises
are a part or other real estate, fixture or other property of Landlord
constituting a part of or used in connection with the shopping center.
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SECTION 49. Article XXI, Section 1 is amended by adding at the end thereof the
following:
The foregoing notwithstanding, Landlord will not unreasonably withhold
its consent to the assignment of Tenant's leasehold interest or
subletting of the Premises, subject to the following conditions:
(i) Tenant shall not thereby be relieved from any liability
hereunder;
(ii) Any such assignee or sublessee shall enter into a writing with
Landlord agreeing to be directly bound to Landlord for the
payment and performance of all things to be paid and performed
by Tenant hereunder;
(iii) Without limiting the generality of the foregoing, any such
assignee or sublessee shall be strictly bound to use the
Premises only for the uses to which it may be put and subject
to the restrictions in the uses to which it may be put, both
as specifically set forth herein;
(iv) Any such assignment or subleasing shall not have any
detrimental economic impact on Landlord;
(v) Such assignee or sublessee shall have a net worth as is
reasonably determined by Landlord to be sufficient to permit
such assignee or sublessee to pay and perform all things to be
paid and performed by Tenant hereunder (provided, however,
that the foregoing condition shall be applicable only as to
subleases or assignments made after the expiration of the
Guaranty of David W. Anderson); and
(vi) Such assignee or sublessee shall continue to operate in the
Premises under the same trade name utilized by Tenant or such
other name as is reasonably acceptable to Landlord.
Subject only to the requirements contained in subparagraphs (i), (iii) and
(vi), Landlord hereby consents to the sublease of the Premises to Famous Dave's
of America, Inc. based upon the representation by Tenant that Famous Dave's of
America, Inc. d/b/a Famous Dave's BAR-B-QUE is a corporation wholly owned by
David W Anderson and Kathryn W. Anderson, who are the sole shareholders of
Tenant. In the event Tenant enters into such sublease, Tenant shall promptly
furnish a copy of the same to Landlord.
SECTION 50. Article XXI, Section 2 is amended by deleting the second sentence
thereof.
SECTION 51. Article XXII is amended by adding after the first sentence of the
first grammatical paragraph the following. "For purposes hereof, 'competing
establishment' means an establishment whose primary use is as a full-service
bar-b-que restaurant."
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SECTION 52. Article XXIV, Section 1(b) if amended by adding after the word
"hereof" the words "and such failure shall continue for a period of five (5)
days after notice from Landlord to Tenant."
SECTION 53. Article XXIV, Section 1(d) is amended by placing a period after
the word "default" and inserting the following:
In the event that the default is of such a nature as to reasonably
require greater than thirty (30) days to cure, Tenant shall be
permitted such longer reasonable period as is required to cure such
default provided that Tenant immediately commences and diligently
pursues curing such default.
SECTION 54. Article XXIV, Section 1(f) is amended by adding at the end thereof
the words, "and Tenant fails to cause such writ to be released within 15 days
of the date of the levy or attachment."
SECTION 55. Article XXIV, Section 1 is amended by adding subparagraph (h)
as follows:
Tenant shall fail to secure and keep in good standing a full liquor
license for the Premises.
SECTION 56. Article XXIV, Section 2(a) is amended by inserting at the
beginning thereof the following: "Except to the extent Landlord's rights are
limited by law,"
SECTION 57. Article XXIV, Section 2(b) is amended by adding following the
words "continuing" in the second line thereof the words, "beyond any applicable
cure period as provided in this Lease."
SECTION 58. Article XXIV, Section 2(c) is amended by inserting after the first
sentence the following:
Landlord agrees that under the circumstances and subject to the
conditions set forth in both the preceding and following sentences,
Landlord will have an obligation to endeavor to relet the Premises.
Landlord shall not be obligated to relet the Premises to any tenant,
for any purposes other than as a full-service restaurant and licensed
bar, and upon any terms which do not satisfy the conditions precedent
specified in Article XXI, Section 1 as amended by Exhibit F, Section
_, with respect to Landlord's consent to assignment or subletting,
which, except for the amount of rental reserved or the length of the
term are inconsistent with the terms hereof, or which are otherwise
determined by Landlord to be detrimental to the shopping center, the
other tenants therein or the economic benefits to Landlord as owner of
the shopping center.
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SECTION 59. Article XXIV, Section 2(h) is amended by adding after the word
"Tenant" in the first line of the first grammatical paragraph thereof the words
"which is not cured within the applicable cure period as provided in this
Lease," and is further amended by adding after the word "such" in the first
line of the second grammatical paragraph thereof the word "uncured."
SECTION 60. Article XXIV, Section 3 is amended by adding at the end thereof the
following:
Notwithstanding anything herein to the contrary, the security interest
granted by Tenant to Landlord pursuant to this Section 3 shall
automatically be subordinate to any lien placed by Tenant on Tenant's
property for the purpose of securing payment of the purchase price
thereof or the repayment of any loan made to pay the purchase price
thereof or any leasehold mortgage made in connection with Tenant's
operations in the Premises. Further, Landlord's rights hereunder
shall automatically be subordinate to the rights of any equipment
lessor as to the equipment leased by such lessor. Tenant shall
execute and deliver any documents as Landlord may reasonably require
to evidence and perfect the security interest granted herein.
SECTION 61. Article XXV is deleted in its entirety.
SECTION 62. Article XXVI, Section 2 is amended by deleting the word "twice"
from the sixth line and inserting in lieu thereof the words "one and one-half
times"; and by deleting the phrase "(iii) the monthly promotional charge,".
SECTION 63. Article XXVII is deleted in its entirety.
SECTION 64. Article XXXII is amended by adding immediately following the word
"regulations" on the second line thereof the following: "(which rules and
regulations shall be nondiscriminatory in their application to tenants of the
same class)." Article XXXI I is further amended by adding at the end thereof
the following:
Tenant shall be open for business to the public during at least the
following hours:
Monday-Saturday: 11:00 a.m. through 12:00 a.m.
Sunday: 12:00 noon through 10:00 p.m.
Tenant may extend the opening and closing hours as desired and as is
otherwise allowed by law. Landlord agrees to keep the common areas of
the shopping center open and to provide shopping center security
services during Tenant's permitted business hours.
F-17
<PAGE> 85
SECTION 65. Article XXXVIII is amended by adding at the end of the first
sentence thereof the following:
provided that such mortgagee or lender agrees to enter into a
non-disturbance agreement that shall provide that in the event
Landlord defaults under such mortgage or other security instrument,
Tenant's possession of the Premises shall not be disturbed so long as
Tenant is not in breach or default under this Lease.
SECTION 66. Article XXXII I is amended by adding at the end of the last
sentence thereof the words ", provided Landlord has given Tenant notice of the
name, address and contact person, of said mortgagee."
SECTION 67. Article XXXIV is amended by adding Section 17 thereto as follows:
Tenant shall promptly apply for and use its best efforts to secure a
full liquor license for the Premises. Landlord shall cooperate with
Tenant in securing such license, including but not limited to,
allocating the number of parking spaces required by the City of
Minneapolis. Tenant shall notify Landlord in writing immediately upon
Tenant's receipt of such license.
The obligations of Landlord and Tenant under this Lease are subject to
the following contingencies:
(a) David Anderson having personally guaranteed this Lease by
executing a Guaranty in the form attached to this Lease as
Exhibit E and having delivered such Guaranty to Landlord
contemporaneously with the execution of the Lease.
(b) Landlord having secured from First Trust Company of St. Paul a
nondisturbance agreement in form and substance satisfactory to
Tenant by January 19, 1996. In the event such agreement has
not been secured by January 19, 1996, Tenant may terminate
this Lease based upon such failure by giving written notice to
Landlord in which event this Lease shall become null and void
and neither party shall have any further right or obligation
hereunder. In the event notice of termination is not given on
or before January 19, 1996, the right to terminate this Lease
pursuant to this subparagraph (c) shall cease, and this Lease
shall continue in full force and effect.
(c) Tenant having approved that certain Amended and Restated Lease
dated December 30, 1982 between Landlord and Norman J.
Ackerberg by January 19, 1996. Tenant may terminate this
Lease based upon its review of said lease
F-18
<PAGE> 86
by giving written notice to Landlord in which event this Lease
shall become null and void and neither party shall have any
further right or obligation hereunder. In the event notice of
termination is not given on or before January 19, 1996, the
right to terminate this Lease pursuant to this subparagraph
(d) shall cease, and this Lease shall continue in full force
and effect.
SECTION 68. Article XXXIV is amended by adding thereto Section 18 as follows:
SECTION 18. Whenever the consent of Landlord is required pursuant to
the terms of this Lease, such consent shall not be unreasonably
withheld so long as the following conditions are met:
(a) The matter to which Landlord's consent is requested shall not
be reasonably believed by Landlord to constitute a risk of any
detrimental economic impact on Landlord;
(b) The matter to which Landlord's consent is requested shall not
be reasonably believed by Landlord to create any difficulty or
impediment with respect to any existing or future contemplated
financing on, or to be obtained on, the shopping center or
with respect to any other tenant in the shopping center;
(c) The matter to which Landlord's consent is requested shall not
constitute a violation of, or place Landlord in default under,
any other agreement, contract or other instrument relating to
the shopping center or any tenant therein;
(d) The matter to which Landlord's consent is requested shall not
be reasonably believed by Landlord to have any significant
detrimental impact, physically, economically or otherwise, on
the shopping center, or on anything relative to the shopping
center, or on Landlord's rights with respect to the shopping
center;
(e) At the time such consent is requested, there shall be no
default existing or which would exist after the giving of
notice, the passage of time, or both in any payment or
performance of Tenant hereunder;
(f) The satisfaction of any other conditions herein specifically
set forth with respect to the matter with respect to which
Landlord's consent if being requested.
SECTION 69. Article XXXIV, is amended by adding thereto Section 19 as follows:
F-19
<PAGE> 87
SECTION 19. Anything in this agreement to the contrary
notwithstanding, except for a failure to pay money due Landlord under
this Lease, Tenant shall not be deemed in default with respect to the
performance of any of the terms, covenants and conditions of this
Lease if the same be due to any strike, lock-out or other labor
trouble, material shortages, governmental restrictions, fire, acts of
God, the elements, war, riot, rebellion or any other cause beyond the
reasonable control of Tenant, provided that no such cause shall
relieve Tenant of its obligation to pay rent and other amounts due
Landlord hereunder or to perform any of the other covenants to be
performed hereunder by Tenant except as the same may be delayed by
such causes.
SECTION 7O. Article XXXIV is further amended by the addition of Section 20
thereto as follows:
SECTION 20. Tenant covenants not to disclose the terms of this Lease
to the media or tenants in the shopping center.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Exhibit F
to the Lease as of this 4th day of January, 1996.
LANDLORD: CALHOUN SQUARE ASSOCIATES
LIMITED PARTNERSHIP
By Calhoun Square Associates
General Partner of Calhoun
Square Associates Limited
Partnership
By RHH Limited Partnership
General Partner of Calhoun
Square Associates
By
_____________________________________
General Partner of
RHH Limited partnership
TENANT: LAKE & HENNEPIN BBQ
AND BLUES, INC.
By
_____________________________________
Its_____________________________
F-20
<PAGE> 88
EXHIBIT G
Exhibit G consists of pictures showing the location of signs.
<PAGE> 89
FIRST AMENDMENT TO
LEASE
THIS FIRST AMENDMENT TO LEASE is made and entered into this ______ day of
March, 1996, by and between Calhoun Square Associates Limited Partnership,
(hereinafter "Landlord") and Lake & Hennepin BBQ and Blues, Inc. (hereinafter
"Tenant") and amends that certain Lease between Landlord and Tenant, dated
January 4, 1996 for premises in the Calhoun Square Shopping Center (hereinafter
referred to as the "Lease").
WHEREAS, Tenant desires to expand the Premises by building a permanent
addition thereto over the existing patio and by expanding into the interior
common area of the shopping center; and
WHEREAS, Landlord has consented to the expansion provided that adjustments
are made to the rents and charges payable under the Lease.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, Landlord and Tenant do hereby agree as
follows:
Section 1. Except as hereinafter specifically provided to the contrary,
all of the terms, covenants and conditions of the Lease are, and shall remain,
in full force and effect. To the extent the provisions of this First Amendment
conflict with the terms of the Lease, the provisions of this First Amendment
shall be controlling.
Section 2. Article I is hereby deleted in its entirety and the following
is inserted in lieu thereof:
ARTICLE I - PERTINENT DATA
Each reference in this Lease to any of the following terms shall be
construed to include the pertinent data set forth below.
1. PREMISES: The area designated as space no. G-109, plus the patio
area immediately south of space no. G-109 on which Tenant will construct a
fully enclosed expansion (the lower level, if any, of which shall be
disregarded for purposes of computing minimum rent and additional rent so
long as it is not used for customer seating and entertainment purposes),
plus the currently existing farmers' market area (hereinafter the "Farmers
Market Area") immediately east of space no. G-109 (which area shall not be
included in determining the gross leasable area of the Premises as provided
in Article II, Section 3). The gross leasable area as to which minimum
rent, percentage rent and additional rent is payable is agreed to be 7,220
square feet. To the extent the expansion of the Premises into the existing
common areas of the shopping center and onto the existing patio result in
<PAGE> 90
the Premises having a leasable area in excess of 7,220 square feet no
minimum rent shall be payable as to the excess area, but such excess area
(excluding the lower level unless and to the extent used for customer
seating or entertainment purposes) shall be considered as part of the
gross leasable area of the Premises for purposes of determining Tenant's
share of common area expenses and, commencing January 1, 1998, Tenant's
share of real property taxes. In the event any other tenant of the
shopping center asserts that all or part of the excess area should have
been included as part of the leasable area of the shopping center for
purposes of calculating such tenant's share of taxes for the period
beginning on the Commencement Date and ending December 31, 1997, and in
the further event Landlord makes a refund to such tenant, Tenant shall
reimburse Landlord in an amount equal to any such refund. The parties
have based their determination of the gross leasable area of the Premises
for certain purposes as being 7,220 square feet upon the assumption that
the expansion of the storefront into the existing interior common area of
the shopping center will add 222 square feet of gross leasable area. In
the event the gross leasable area of the storefront expansion is other
than 222 square feet, then the leasable area as to which minimum rent,
percentage rent and additional rent are payable shall be adjusted upward
or downward to reflect any change in the leasable area of the storefront
expansion, and the minimum rents and percentage rent breakpoints set
forth below shall be adjusted to reflect such change. In the event the
parties cannot agree upon the adjustment in area resulting from the
storefront expansion, and they shall promptly appoint a neutral
architect licensed in the State of Minnesota to make the determination
based on the provisions of Article II, Section 3, and such architect's
determination shall be conclusive upon the parties.
2. TERM: Fifteen full lease years, commencing on July 1, 1996 and
ending on June 30, 2011. In addition, Tenant shall have options for two
extended terms of five (5) years each as provided in Exhibit F, Section
8.
3. PERMITTED USE: A full-service bar-b-que restaurant having a
full-service bar and providing live blues entertainment with take-out
dining available. In addition, Tenant shall be permitted to sell related
merchandise bearing Tenant's trade name and/or logo, prerecorded music by
bands appearing live at the Premises, and merchandise such as t-shirts
related to such bands, provided such merchandise and music sales shall be
incidental to Tenant's primary restaurant, bar and entertainment use.
4. ANNUAL MINIMUM RENT:
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<PAGE> 91
(a) For each year during the initial ten (10) years of the term of
the Lease (i.e., through June 30, 2006), annual minimum rent shall be
$129,960 per year, payable $10,830 per month.
(b) Provided that Tenant completes its improvements (except for
punch list items which do not prevent Tenant from operating) and opens
for business on or before September 1, 1996 (subject to delays by reason
of Acts of God, the negligence of Landlord or unreasonable delays by
Landlord in reviewing Tenant's plans and specifications or other cause
beyond the control of Tenant, provided that Tenant shall promptly notify
Landlord in writing of such delays and shall use due diligence to
overcome such delays as expeditiously as possible), and further provided
that Tenant has met the requirements of Exhibit F, Section 6 as to the
cost of tenant improvements, and further provided that Tenant is not in
default beyond applicable cure periods of any of the covenants, terms and
conditions of the Lease to be performed by Tenant, Tenant shall have a
credit of $250,000 against the annual minimum rent next coming due
hereunder. (See also Exhibit F, Section 69.)
(c) For the five (5) years beginning on July 1, 2006 and ending June
30, 2011, annual minimum rent for each year during the first five (5)
year extended term shall be $173,280 per year, payable $14,440 per month.
(d) If Tenant effectively exercises the first option to extend the
term of the Lease for an additional period of five (5) years beginning on
July 1, 2011, annual minimum rent for each year during the first five (5)
year extended term shall be $187,720 per year, payable $15,643.33 per
month.
(e) If Tenant effectively exercises the second option to extend the
term of the Lease for an additional period of five (5) years beginning on
July 1, 2016, annual minimum rent for each year during the second five
(5) year extended term shall be $216,600 per year, payable $18,050 per
month.
5. PERCENTAGE RENT RATE: Five percent (5%) of annual gross sales.
Accordingly, for each year during the initial ten (10) years of the
Lease, Tenant shall pay percentage rent equal to 5% of annual gross sales
in excess of $2,599,200; for each year of the next five years (i.e., July
1, 2006 - June 30, 2011) of the Lease, Tenant shall pay percentage rent
equal to 5% of annual gross sales in excess of $3,465,600; for each year
of the first option term of the Lease, Tenant shall pay percentage rent
equal to 5% of annual gross sales in excess of $3,754,400; and for each
year of the second option term of the Lease, Tenant shall pay percentage
rent equal to 5% of annual gross sales in excess of $4,332,000.
3
<PAGE> 92
Notwithstanding anything to the contrary, provided that Tenant is not in
default beyond applicable cure periods of any of the covenants, terms and
conditions of the Lease to be performed by Tenant, Tenant shall have a
credit against annual percentage rent coming due in each of the first
five (5) full fiscal years of the initial term of $12,500. The maximum
credit for which Tenant is eligible hereunder shall be $62,500. To the
extent the full $12,500 credit is not used in any year, it shall be lost,
it being the agreement of the parties that the credits shall not be
cumulative.
6. TENANT'S TRADE NAME: Famous Dave's BAR-B-QUE or Famous Dave's
BAR-B-QUE & Blues.
7. SECURITY DEPOSIT: $0.00
8. COMMENCEMENT DATE: July 1, 1996. Tenant shall have the right of
early possession as provided in Exhibit F, Section 9 for purposes of
preparing the Premises for occupancy.
9. ADDITIONAL PROVISIONS: Exhibit F contains additional provisions
and amendments to this Lease. In the event of any conflict between the
provisions contained in Exhibit F and any other provision of this Lease
and its Exhibits, the provisions of Exhibit F shall control.
Section 3. Exhibit F, Section 4 is hereby deleted and replaced with the
following:
SECTION 4. Article II, Section 3 is further amended by deleting the last
sentence thereof and inserting the following:
The area of the Farmers Market Area, the lower level of the
expansion constructed on the existing patio so long as it is not
used for customer seating and entertainment purposes, and any
storage areas separately leased to Tenant shall be excluded in any
calculation of the gross leasable area of the Premises.
Section 4. Exhibit F, Section 6 is hereby deleted and replaced with the
following:
SECTION 6. Article II is further amended by adding a new Section 6
thereto reading as follows:
SECTION 6. Tenant covenants and agrees that the total capitalized
costs of the project determined in accordance with generally
accepted accounting principles (but excluding pre-opening expenses
in excess of $50,000, and consulting, development or similar fees
paid or payable
4
<PAGE> 93
to Tenant, or to David Anderson or to entities affiliated or
related to either of them) shall be not less than $700,000. Tenant
shall provide Landlord promptly after substantial completion of the
tenant improvements with paid invoices, mechanics' lien waivers or
other evidence reasonably acceptable to Landlord of the project
costs showing that Tenant has performed its obligations under
this Section 6. Tenant shall have the right to construct an
expansion of approximately 2,374 square feet to the south of space
no. G-109 in accordance with plans and specifications approved by
Landlord. All such work shall be done at Tenant's sole expense
pursuant to plans and specifications approved by Landlord in
writing prior to the commencement of construction.
Section 5. Exhibit F, Section 12 is hereby deleted and replaced with the
following:
SECTION 12. Article V, Section 1 is further amended by deleting the
second grammatical paragraph and inserting in lieu thereof the following:
Percentage rent, if any, for the fiscal year ending June 30,
1997 shall be due and payable in full on or before July 31, 1997.
Thereafter, percentage rent shall be determined and payable
quarterly on or before the fifteenth (15th) day following the close
of each such quarterly period during the term based on year-to-date
gross sales for the fiscal year in which the quarter occurs.
Quarters end on September 30, December 31, March 31 and June 30.
The "annual breakpoint" for each full fiscal year during the first
ten years of the term is $2,599,200. The "annual breakpoint" for
the next five years of the term is $3,465,600. The "annual
breakpoint" for the first five year extended term is $3,754,400.
The "annual breakpoint" for the second five year extended term is
$4,332,000. The first quarterly payment shall be five percent (5%)
of the amount by which Tenant's gross sales for the first quarter
exceed one-quarter of the relevant annual breakpoint. The second
quarterly payment shall be five percent (5%) of the amount by which
Tenant's gross sales for the first two quarters exceed one-half of
the relevant annual breakpoint. The third quarterly payment shall
be five percent (5%) of the amount by which Tenant's gross sales
for the first three quarters exceed three-fourths of the relevant
annual breakpoint. The fourth quarterly payment shall be five
percent (5%) of the amount by which Tenant's gross sales for the
year exceed the relevant annual breakpoint. The percentage rent
credit provided for in Article I, paragraph 5 for each of the first
five full fiscal years shall be taken against the first payments of
percentage
5
<PAGE> 94
rent due hereunder. Further, if at the end of any such fiscal
year the credit taken by Tenant in preceding quarters exceeds the
amount of credit for which Tenant is eligible for the year, then
Tenant shall, not later that fifteen (15) days after the end of the
fiscal year, pay to Landlord the amount of the excess. If, at the
end of any Fiscal Year, the total amount of estimated percentage
rent paid by Tenant exceeds the total amount of percentage rent
required to be paid by Tenant for the said Fiscal Year, Tenant
shall, notwithstanding any provision in this Lease to the contrary,
have the right to off-set such excess against the next payments of
rent due hereunder. Any excess estimated percentage rental paid
during the last Fiscal Year of the lease term will be refunded to
Tenant as soon as the amount of such excess is ascertained. If, at
the end of any Fiscal Year, the total amount of estimated
percentage rent required to be paid by Tenant is less than the
total amount of percentage rent required to be paid by Tenant for
said Fiscal Year, the balance shall be due and payable in full
thirty (30) days after the end of said Fiscal Year.
Section 6. Exhibit F, Section 24 is hereby deleted and replaced with the
following:
SECTION 24. Article IX, Section 3 is amended by inserting at the end
thereof the following:
Notwithstanding the foregoing, Landlord consents to the presentation of
live, amplified music in the Premises and agrees that Tenant will not be deemed
to be in default of the Lease provided that Tenant strictly complies with all
ordinances, rules and regulations of the City of Minneapolis having to do with
the presentation of live music or having to do with noise, sound or nuisance,
that live music be presented only after 9:00 p.m., that the sound not be
transmitted or broadcast through outside speakers to the adjacent Farmers
Market Area and that doors leading to the Farmers Market Area will not be
propped open while live music is being presented. Nothing herein or elsewhere
in the Lease shall be deemed to require Tenant to present live music in the
Premises at any time after June 30, 1997.
Section 7. Exhibit F, Section 31 is hereby deleted and replaced with the
following:
SECTION 31. Article XII, Section 1 is amended by adding at the end
thereof the following:
Notwithstanding the foregoing, Tenant shall be entitled to one listing on
each shopping center directory. Subject to receipt of Landlord's prior written
approval as to content, materials, and
6
<PAGE> 95
method of installation and to compliance with all applicable ordinances
and regulations, Tenant shall have: (a) the exclusive right to place signage in
the location depicted in Exhibit G-1, on the south exterior wall of the
expanded Premises facing 31st Street, in the third floor window immediately
below the "Calhoun Square" sign and in the two windows immediately adjacent to
and on either side of such window as depicted in Exhibit G-3; (b) the exclusive
right to place a sign below the second floor windows and above the shopping
center entrance at the intersection of Hennepin and Lake as depicted in Exhibit
G-3; and (c) the non- exclusive right to signage at the locations depicted in
Exhibit G-4, G-5, G-6, G-7, G-8 and G-9 as part of a coordinated sign program
developed by Landlord. In the event Tenant installs signs as described in
subparagraph (c) above, before Landlord has finalized its coordinated sign
program, and if Tenant's signs are removed within two (2) years of the
Commencement Date such that Landlord can effectuate the coordinated sign
program, then Landlord shall reimburse Tenant's cost of the signs so removed.
If as part of Landlord's coordinated sign program, Tenant shares sign locations
with other tenants, Tenant's contribution to the cost of the shared sign(s)
shall be pro-rata based upon the total number of tenants on the shared sign(s).
CALHOUN SQUARE ASSOCIATES
LIMITED PARTNERSHIP
By Calhoun Square Associates,
General Partner of Calhoun Square
Associates Limited partnership
By RHH Limited Partnership,
General Partner of Calhoun Square
Associates
By
-----------------------------------
General Partner of RHH
Limited Partnership
TENANT: LAKE & HENNEPIN BBQ
AND BLUES, INC.
By
-----------------------------------
Its
--------------------------------
7
<PAGE> 96
SECOND AMENDMENT TO
LEASE
THIS SECOND AMENDMENT TO LEASE is made and entered into this ______ day of
__________, 1996, by and between Calhoun Square Associates Limited Partnership,
(hereinafter "Landlord") and Lake & Hennepin BBQ and Blues, Inc. (hereinafter
"Tenant") and amends that certain Lease between Landlord and Tenant, dated
January 4, 1996 and amended by the First Amendment to Lease dated March 26,
1996 for premises in the Calhoun Square Shopping Center (hereinafter referred
to as the "Lease")
WHEREAS, Tenant is now constructing its improvements to the shopping
center; and
WHEREAS, Landlord and Tenant have agreed to certain modifications to the
size and layout of the Premises and related changes in the rents and other
charges payable by Tenant during the term of the Lease; and
WHEREAS, as a result of the further expansion of the Premises beyond that
contemplated in the First Amendment to Lease completion of Tenant's
improvements to the Premises may be delayed by as much as one month.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, Landlord and Tenant do herebyagree as follows:
Section 1. Except as hereinafter specifically provided to the contrary,
all of the terms, covenants and conditions of the Lease are, and shall remain,
in full force and effect. To the extent the provisions of this Second
Amendment conflict with the terms of the Lease, the provisions of this Second
Amendment shall be controlling.
Section 2. Tenant shall have the right to enclose the Farmers Market Area
immediately east of space No. G-109 and the gross leasable area of the Farmers
Market Area shall, notwithstanding any provision of the Lease to the contrary,
be included in determining the gross leasable area of the Premises. The gross
leasable area of the Farmers Market Area is agreed to be 1,588 square feet.
Section 3. Article I, Paragraph 1 is hereby deleted in its entirety and
the following is inserted in lieu thereof:
1. PREMISES: For purposes of this Lease, the Premises consist of (a)
The area designated as space no. G-1O9 and the adjacent area to be
constructed by Tenant expanding said space no. G-109 into the interior
common area consisting of 6,226 square feet of gross leasable area; (b)
The current patio area located immediately south of space no. G-109 on
which Tenant will construct an expansion to the shopping center
consisting
<PAGE> 97
of approximately 2,373 square feet of gross leasable area at
street level with a basement, the area of which is not included in said
2,373 square feet and which is to be disregarded in the computation of
any rents due under the Lease so long as said basement is not used for
customer seating and entertainment purposes; (c) The current farmers
market area (hereinafter the "Farmers Market Area") located immediately
east of space no. G-109 which Tenant will expand and enclose and which,
upon completion, will have a gross leasable area of approximately 1,588
square feet; and (d) The take-out waiting area which Tenant will
construct between the patio area and the Farmers Market Area and which,
upon completion, will have a gross leasable area of approximately 436
square feet. The total gross leasable area described above (exclusive of
the basement) is 10,623 square feet.
For purposes of computing the rents due under this Lease, the parties
agree as follows:
With respect to minimum rent only the gross leasable area of those
portions of the Premises described in clauses (a) and (c), above,
shall be taken into account;
With respect to common area expenses other than taxes the entire
gross leasable area of the Premises as described in clauses a),
(b), (c), and (d), above, shall be taken into account;
With respect to taxes for the period commencing on July 1, 1996 and
ending on December 31, 1997 only the gross leasable area described
in clause (a) shall be taken into account, but after December 31,
1997 the entire gross leasable area of the Premises as described
in clauses (a), (b), (c) and (d), above shall be taken into
account. Notwithstanding the foregoing, in the event any other
tenant of the shopping center asserts that all or part of the areas
described in clauses (b), (c) or (d), above, should have been
included as part of the leasable area of the shopping center for
purposes of calculating such tenant's share of taxes for the period
beginning on July 1, 1996 and ending December 31, 1997, and in the
further event Landlord makes a refund to such tenant, Tenant shall
reimburse Landlord in an amount equal to any such refund.
In the event the gross leasable area of the street level of that portion
of the Premises described in clause (b) above is determined to be other
than 2,373 square feet or the gross leasable area of the Farmers Market
Area described in clause (c) above is determined to be other than 1,588
square feet or the gross leasable area of the take-out waiting area
described in clause (d) is determined to be other than 436 square feet,
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<PAGE> 98
the rents payable with respect to such areas shall be adjusted upward or
downward to reflect such change. In the event the parties cannot agree
upon the adjustment in area, they shall promptly appoint a neutral
architect licensed in Minnesota to make the determination based upon the
provisions of Article II, Section 3, and such architect's determination
shall be conclusive on the parties.
Section 4. Article I, Paragraphs 4 and 5 are hereby deleted in their
entirety and the following is inserted in lieu thereof:
4. ANNUAL MINIMUM RENT:
(a) For each year during the initial ten (10) years of the term of
the Lease (i.e., through June 30, 2006), annual minimum rent shall be
$140,652 per year, payable $11,721 per month.
(b) Provided that Tenant completes its improvements (except for
punch list items which do not prevent Tenant from operating) and opens
for business on or before October 1, 1996 (subject to delays by reason of
Acts of God, the negligence of Landlord or unreasonable delays by
Landlord in reviewing Tenant's plans and specifications or other cause
beyond the control of Tenant, provided that Tenant shall promptly notify
Landlord in writing of such delays and shall use due diligence to
overcome such delays as expeditiously as possible), and further provided
that Tenant has met the requirements of Exhibit F, Section 6 as to the
cost of tenant improvements, and further provided that Tenant is not in
default beyond applicable cure periods of any of the covenants, terms and
conditions of the Lease to be performed by Tenant, Tenant shall have a
credit of $250,000 against the annual minimum rent next coming due
hereunder. (See also Exhibit F, Section 69.)
(c) For the five (5) years beginning on July 1, 2006 and ending June
30, 2011, annual minimum rent for each year during the first five (5)
year extended term shall be $187,536 per year, payable $15,628 per month.
(d) If Tenant effectively exercises the first option to extend the
term of the Lease for an additional period of five (5) years beginning on
July 1, 2011, annual minimum rent for each year during the first five (5)
year extended term shall be $203,164 per year, payable $16,930 per month.
(e) If Tenant effectively exercises the second option to extend the
term of the Lease for an additional period of five (5) years beginning on
July 1, 2016, annual minimum rent for each year during the second five
(5) year extended term shall be $234,420 per year, payable $19,535 per
month.
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<PAGE> 99
5. PERCENTAGE RENT RATE: Five percent (5%) of annual gross sales.
Accordingly, for each year during the initial ten (10) years of the
Lease, Tenant shall pay percentage rent equal to 5% of annual gross sales
in excess of $2,813,040; for each year of the next five years (i.e., July
1, 2006 - June 30, 2011) of the Lease, Tenant shall pay percentage rent
equal to 5% of annual gross sales in excess of $3,750,720; for each year
of the first option term of the Lease, Tenant shall pay percentage rent
equal to 5% of annual gross sales in excess of $4,063,280; and for each
year of the second option term of the Lease, Tenant shall pay percentage
rent equal to 5% of annual gross sales in excess of $4,688,400.
Notwithstanding anything to the contrary, provided that Tenant is not
in default beyond applicable cure periods of any of the covenants, terms
and conditions of the Lease to be performed by Tenant, Tenant shall have
a credit against annual percentage rent coming due in each of the first
five (5) full fiscal years of the initial term of $12,500. The maximum
credit for which Tenant is eligible hereunder shall be $62,500. To the
extent the full $12,500 credit is not used in any year, it shall be lost,
it being the agreement of the parties that the credits shall not be
cumulative.
Section 5. Exhibit F, Section 4 is hereby deleted and replaced with the
following:
SECTION 4. Article II, Section 3 is further amended by deleting the last
sentence thereof and inserting the following:
The area of the lower level of the expansion constructed on the
existing patio so long as it is not used for customer seating and
entertainment purposes, and any storage areas separately leased to
Tenant shall be excluded in any calculation of the gross leasable
area of the Premises.
Section 6. Exhibit F, Section 6 is hereby deleted and replaced with the
following:
SECTION 6. Article II is further amended by adding a new Section 6
thereto reading as follows:
SECTION 6. Tenant covenants and agrees that the total capitalized
costs of the project determined in accordance with generally
accepted accounting principles (but excluding pre-opening expenses
in excess of $50,000, and consulting, development or similar fees
paid or payable to Tenant, or to David Anderson or to entities
affiliated or related to either of them) shall be not less than
$700,000. Tenant shall provide Landlord promptly after substantial
completion of the tenant improvements with
4
<PAGE> 100
paid invoices, mechanics' lien waivers or other evidence
reasonably acceptable to Landlord of the project costs showing that
Tenant has performed its obligations under this Section 6. Tenant
shall have the right to construct an expansion of approximately
2,374 square feet to the south of space no. G-l09 , to enclose the
Farmers Market Area of approximately 1,588 square feet to the east
of space No. G-109 and to construct an expansion of approximately
436 square feet to the south of the Farmers Market Area in
accordance with plans and specifications approved by Landlord. All
such work shall be done at Tenant's sole expense pursuant to plans
and specifications approved by Landlord in writing prior to the
commencement of construction.
Section 7. Exhibit F, Section 12 is hereby deleted and replaced with the
following:
SECTION 12. Article V, Section 1 is further amended by deleting the
second grammatical paragraph and inserting in lieu thereof the following:
Percentage rent, if any, for the fiscal year ending June 30, 1997
shall be due and payable in full on or before July 31, l997.
Thereafter, percentage rent shall be determined and payable
quarterly on or before the fifteenth (15th) day following the close
of each such quarterly period during the term based on year-to-date
gross sales for the fiscal year in which the quarter occurs.
Quarters end on September 30, December 31, March 31 and June 30.
The "annual breakpoint" for each full fiscal year during the first
ten years of the term is $2,813,040. The "annual breakpoint" for
the next five years of the term is $3, 750, 720. The "annual
breakpoint" for the first five year extended term is $4,063,280.
The "annual breakpoint" for the second five year extended term is
$4,688,400. The first quarterly payment shall be five percent (5%)
of the amount by which Tenant's gross sales for the first quarter
exceed one-quarter of the relevant annual breakpoint. The second
quarterly payment shall be five percent (5%) of the amount by which
Tenant's gross sales for the first two quarters exceed one-half of
the relevant annual breakpoint. The third quarterly payment shall
be five percent (5%) of the amount by which Tenant's gross sales
for the first three quarters exceed three-fourths of the
relevant annual breakpoint. The fourth quarterly payment shall be
five percent (5%) of the amount by which Tenant's gross sales for
the year exceed the relevant annual breakpoint. The percentage
rent credit provided for in Article I, paragraph 5 for each of the
first five full fiscal years shall be taken against the first
5
<PAGE> 101
payments of percentage rent due hereunder. Further, if at the end
of any such fiscal year the credit taken by Tenant in preceding
quarters exceeds the amount of credit for which Tenant is eligible
for the year, then Tenant shall, not later that fifteen (15) days
after the end of the fiscal year, pay to Landlord the amount of the
excess. If, at the end of any Fiscal Year, the total amount of
estimated percentage rent paid by Tenant exceeds the total amount
of percentage rent required to be paid by Tenant for the said
Fiscal Year, Tenant shall, notwithstanding any provision in this
Lease to the contrary, have the right to off-set such excess
against the next payments of rent due hereunder. Any excess
estimated percentage rental paid during the last Fiscal Year of the
lease term will be refunded to Tenant as soon as the amount of such
excess is ascertained. If, at the end of any Fiscal Year, the
total amount of estimated percentage rent required to be paid by
Tenant is less than the total amount of percentage rent required to
be paid by Tenant for said Fiscal Year, the balance shall be due
and payable in full thirty (30) days after the end of said Fiscal
Year.
CALHOUN SQUARE ASSOCIATES
LIMITED PARTNERSHIP
By Calhoun Square Associates,
General Partner of Calhoun Square
Associates Limited Partnership
By RHH Limited Partnership,
General Partner of Calhoun Square
Associates
By
---------------------------------
General Partner of RHH
Limited Partnership
TENANT: LAKE & HENNEPIN BBQ
AND BLUES, INC.
By
---------------------------------
Its
------------------------------
6
<PAGE> 1
EXHIBIT 10.13
FAMOUS DAVE'S OF MINNEAPOLIS, INC.
AMENDMENT TO
1995 STOCK OPTION AND
COMPENSATION PLAN
1. Increase in Number of Shares Subject to the Plan. Section 5.1
of the 1995 Stock Option and Compensation Plan is hereby amended to read in its
entirety as follows:
5.1 Number of Shares. Subject to adjustment as provided in
Section 11.6, the number of shares of Common Stock which may be issued
under the Plan shall not exceed 700,000 shares of Common Stock.
2. Effective Date. This Amendment will become effective upon
approval thereof by the shareholders of the Company at the next annual meeting
of shareholders.
<PAGE> 1
EXHIBIT 24.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
report and to all references to our firm included in or made a part of this
registration statement.
/s/ Lund Koehler Cox & Company, PLLP
LUND KOEHLER COS & COMPANY, PLLP
Minneapolis, Minnesota
October 1, 1996
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
UNAUDITED FINANCIAL STATEMENTS OF FAMOUS DAVES OF AMERICA AND SUBSIDIARY AND
NOTES THERETO AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS AND NOTES THERETO
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1996
<PERIOD-END> JUN-30-1996
<CASH> 252,137
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 53,049
<CURRENT-ASSETS> 714,595
<PP&E> 1,728,987
<DEPRECIATION> (46,333)
<TOTAL-ASSETS> 3,511,524
<CURRENT-LIABILITIES> 2,953,935
<BONDS> 0
0
0
<COMMON> 1,000,000
<OTHER-SE> (694,392)
<TOTAL-LIABILITY-AND-EQUITY> 305,608
<SALES> 1,015,856
<TOTAL-REVENUES> 1,032,871
<CGS> 336,600
<TOTAL-COSTS> 1,398,581
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 22,492
<INCOME-PRETAX> (388,202)
<INCOME-TAX> 0
<INCOME-CONTINUING> (388,202)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (388,202)
<EPS-PRIMARY> (0.18)
<EPS-DILUTED> (0.18)
</TABLE>
