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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 18, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FAMOUS DAVE'S OF AMERICA, INC.
(Exact name of Small Business Issuer as specified in its charter)
MINNESOTA
(State or other jurisdiction of incorporation)
41-1782300
(IRS Employer Identification No.)
12700 INDUSTRIAL PARK BOULEVARD, SUITE 60
MINNEAPOLIS, MINNESOTA 55441
(Address of principal executive offices)
1995 STOCK OPTION AND COMPENSATION PLAN
DIRECTOR STOCK OPTION AGREEMENTS
(Full title of Plan)
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:
WILLIAM M. MOWER, ESQ.
MASLON EDELMAN BORMAN & BRAND,
A PROFESSIONAL LIMITED LIABILITY PARTNERSHIP
3300 NORWEST CENTER
MINNEAPOLIS, MN 55402-4140
(612) 672-8200
CALCULATION OF REGISTRATION FEE
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<CAPTION>
==============================================================================================
TITLE OF AMOUNT OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE SHARES TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE (1) REGISTRATION FEE
- ------------------- -------------- ---------------- --------------------- ----------------
<S> <C> <C> <C> <C>
Common Stock (no
par value per share)
Director Stock Option
Agreements 50,000 $8.06 $ 403,125.00 $ 122.16
Common Stock (no par
value per share)
reserved under the
1995 Stock Option
and Compensation Plan 700,000 $8.06 $5,643,750.00 $1,710.23
</TABLE>
(1) Estimated solely for purposes of computing the registration fee in
accordance with Rule 457(h) and based upon the average of the high and low
prices of the Common Stock on the NASDAQ SmallCap Market on November 14,
1996.
Exhibit Index at Page 7
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Small Business Issuer with the
Securities and Exchange Commission are incorporated herein by reference and
made a part hereof:
(a) The contents of the Registration Statement on Form SB-2, File No.
333-10675, filed on August 23, 1996, as amended.
(b) The description of Common Stock included under the caption "Securities
to be Registered" in its Registration Statement on Form 8-A, File No.
0-21625, dated October 25, 1996, including any amendments or reports
filed for the purpose of updating such description.
All documents subsequently filed by the Small Business Issuer pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing of such documents.
Item 4. Description of Securities.
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 Small Business Issuer's Board of
Directors out of assets legally available therefore, and to share ratably in
the assets of the Small Business Issuer available upon liquidation.
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.
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 fifty percent of all of the outstanding shares of
Common Stock can elect all of the directors. Significant corporate
transactions such as 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 vote upon by the holders of Common
Stock normally require the affirmative vote of a majority of the shares present
or represented by proxy at the particular shareholders' meeting. The Company's
directors and officers as a group beneficially own approximately 34.3% of the
outstanding Common Stock of the Company. 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 relating to its
securities to be filed.
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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 Small
Business Issuer's Board of Directors establishes one or more additional classes
of Common Stock, or one or more additional series of Preferred Stock. The
Small Business Issuer's Board of Directors has no present plan to establish any
such additional class or series.
The Small Business Issuer 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% of 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
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.
Item 6. Indemnification of Directors and Officers.
The Small Business Issuer 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.
Item 8. Exhibits.
4A. Articles of Incorporation of the Small Business Issuer
(incorporated herein by reference to the Small Business Issuer's
Registration Statement on Form SB-2 (Registration No. 333-10675))
4B. Bylaws of the Company (incorporated herein by reference to the
Company's Registration Statement on Form SB-2 (Registration No.
333-10675)).
5. Opinion of Maslon Edelman Borman & Brand, a Professional Limited
Liability Partnership
23.1 Consent of Lund Koehler Cox & Company, PLLP
23.2 Consent of Maslon Edelman Borman & Brand, a Professional Limited
Liability Partnership (contained in Exhibit 5).
24. Power of Attorney (included on Page 6).
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Item 9.Undertakings.
The undersigned Small Business Issuer hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Small Business Issuer
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Small Business Issuer hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Small Business Issuer's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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
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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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Small
Business Issuer certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Minneapolis, State of Minnesota, on November 15,
1996.
Famous Dave's of America, Inc.
Small Business Issuer
By /s/ David W. Anderson
-----------------------------------------
David W. Anderson
Chairman of the Board and
Chief Executive Officer
(Chief Operating Officer)
POWER OF ATTORNEY
We, the undersigned officers and directors of Famous Dave's of America,
Inc., hereby severally constitute Mark A. Payne or William M. Mower, each or
either of them, our true and lawful attorney with full power to him, to sign
for us and in our names, in the capacities indicated below the registration
statement filed herewith and any amendments to said registration statement, and
generally to do all such things in our name and behalf in our capacities as
officers and directors to enable Famous Dave's of America, Inc. to comply with
the provisions of the Securities Act of 1933 as amended, and all requirements
of the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of them, to said
registration statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Exchange Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
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NAME TITLE DATE
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<S> <C> <C>
/s/ David W. Anderson Chairman of the Board and Chief November 15, 1996
- --------------------------- Executive Officer
David W. Anderson
/s/ William L. Timm President November 15, 1996
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William L. Timm
/s/ Mark A. Payne Vice President, Finance November 15, 1996
- --------------------------- Chief Financial Officer, Secretary
Mark A. Payne and Treasurer
/s/ Thomas J. Brosig Director November 15, 1996
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Thomas J. Brosig
/s/ Martin J. O'Dowd Director November 8, 1996
- ---------------------------
Martin J. O'Dowd
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EXHIBITS
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Exhibit Number Description of Exhibit Page No.
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5. Opinion of Maslon Edelman Borman & Brand, a Professional Limited
Liability Partnership 8
23.1 Consent of Lund Koehler Cox & Company, PLLP 9
23.2 Consent of Maslon Edelman Borman & Brand, a Professional Limited
Liability Partnership (contained in Exhibit 5). 8
24. Power of Attorney (included on Signature page). 6
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EXHIBIT 5
[MASLON EDELMAN BORMAN & BRAND LETTERHEAD]
November 15, 1996
Famous Dave's of America, Inc.
12700 Industrial Park Boulevard, Suite 60
Minneapolis, Minnesota 55441
Re: Registration Statement on Form S-8
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 S-8 filed by the Company
with the Securities and Exchange Commission (the "Registration Statement"),
relating to a total of 750,000 shares of Common Stock, $.01 par value (the
"Shares") 50,000 shares to be issued by the Company pursuant to certain
Director Stock Option Agreements (the "Agreements") and 700,000 shares to be
issued by the Company under the 1995 Stock Option and Compensation Plan (the
"Plan"). 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 Shares, when issued and paid for as contemplated by the Agreements
or the Plan, and when delivered against payment therefor in the manner
contemplated by the Agreements or the Plan, 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,
a Professional Limited Liability Partnership
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accoutants, we hereby consent to the use of our
report and to all references to our firm included in or made part of this
Registration Statement.
LUND KOEHLER COX & COMPANY, PLLP
Minneapolis, Minnesota
November 7, 1996
