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As filed with the Securities and Exchange Commission on January 25, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FAMOUS DAVE'S OF AMERICA, INC.
(Exact name of registrant as specified in its charter)
MINNESOTA 41-1782300
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
7657 Anagram Drive
Eden Prairie, MN 55344
(612) 294-1300
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
Martin J. O'Dowd
Chief Executive Officer
Famous Dave's of America, Inc.
7657 Anagram Drive
Eden Prairie, MN 55344
(612) 294-1300
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With copies to:
William M. Mower, Esq.
Alan M. Gilbert, Esq.
Maslon Edelman Borman & Brand, LLP
3300 Norwest Center
Minneapolis, Minnesota 55402-4140
(612) 672-8200
Approximate date of the commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement. If the only
securities being registered on this form are being offered pursuant to dividend
or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
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. [ ]
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED (2) OFFERING PRICE (1) REGISTRATION FEE (3)
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<S> <C> <C> <C>
Common Stock, $.01 par value 421,610 $ 935,447,19 $ 246.22
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</TABLE>
(1) Estimated solely for the purpose of calculating registration fee.
(2) Includes shares issuable upon exercise of certain warrants.
(3) Fee calculated pursuant to Rule 457(c), based on the average high and low
closing sales price on January 21, 2000.
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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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 JANUARY , 2000
PROSPECTUS
FAMOUS DAVE'S OF AMERICA, INC.
421,610 SHARES OF
COMMON STOCK
This prospectus relates to certain shares of common stock issued by
Famous Dave's of America, Inc. and shares of common stock of the Company
issuable upon the exercise of warrants (the "Warrants") granted to certain of
the selling shareholders listed on page 9 of this prospectus. The total proceeds
to us from the exercise of the Warrants, if the Warrants are exercised in full,
would be a maximum of $1,200,001. We will receive no proceeds from the sale of
the common stock by selling shareholders.
Our common stock is listed on the Nasdaq National Market under the
symbol "DAVE". On January 21, 2000, the last sale price for the Common Stock as
reported on the Nasdaq National Market was $2.1875.
The shares offered by this prospectus involve a high degree of risk.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 FOR A DESCRIPTION OF FACTORS WHICH SHOULD
BE CONSIDERED BY INVESTORS BEFORE PURCHASING THE SHARES OFFERED BY THIS
PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR DETERMINED THAT THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. A REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE, AND MAY BE
CHANGED. THIS PROSPECTUS IS INCLUDED IN THE REGISTRATION STATEMENT THAT WAS
FILED BY FAMOUS DAVE'S OF AMERICA, INC. WITH THE SECURITIES AND EXCHANGE
COMMISSION. THE SELLING SHAREHOLDERS CANNOT SELL THEIR SHARES UNTIL THAT
REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO
SELL THE SHARES OR THE SOLICITATION OF AN OFFER TO BUY THE SHARES IN ANY STATE
WHERE THE OFFER OR SALE IS NOT PERMITTED.
THE DATE OF THIS PROSPECTUS IS , 2000.
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TABLE OF CONTENTS
<TABLE>
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PROSPECTUS SUMMARY.................................................................3
RISK FACTORS.......................................................................4
USE OF PROCEEDS....................................................................9
SELLING SHAREHOLDERS...............................................................9
PLAN OF DISTRIBUTION...............................................................9
WHERE YOU CAN FIND MORE INFORMATION...............................................11
NOTE REGARDING FORWARD-LOOKING STATEMENTS.........................................12
LEGAL MATTERS.....................................................................12
EXPERTS...........................................................................12
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES....................................12
</TABLE>
No dealer, salesman or other person has been authorized to give any
information or to make any representations other than those contained in this
prospectus. You must not rely on any information or representations not
contained in this prospectus, if given or made, as having been authorized by us.
This prospectus is not an offer or solicitation in respect to these securities
in any jurisdiction in which such offer or solicitation would be unlawful. The
delivery of this prospectus shall not under any circumstances, create any
implication that there has been no change in our affairs or that the information
contained in this prospectus is correct as of any time subsequent to the date of
this prospectus. However, in the event of a material change, this prospectus
will be amended or supplemented accordingly.
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PROSPECTUS SUMMARY
As used in this prospectus, the terms "Company","we", "us" and "our"
refer to Famous Dave's of America, Inc. and its consolidated subsidiaries.
THE COMPANY
Famous Dave's of America, Inc. operates restaurants which feature
hickory smoked off-the-grill meat entrees served in one of three casual formats:
a "Northwoods" style lodge, a nostalgic roadhouse "shack," or a Blues Club
featuring nightly musical entertainment. We were incorporated as a Minnesota
corporation in March 1994 and opened our first restaurant in Minnesota in June
1995. As of January 2, 2000, we operated twenty-four restaurants under the name
"Famous Dave's" in the Midwestern region of the United States, fourteen of which
are located in Minnesota, four of which are located in Wisconsin, three of which
are located in Iowa, two of which are located in Illinois and one of which is
located in Nebraska. We recently acquired four additional restaurants in
Maryland and Virginia which are currently being operated under the name "Red
River Barbeque and Grille" (see "Recent Developments" directly below).
Our executive offices are located at 7657 Anagram Drive, Eden Prairie,
Minnesota 55344 and our telephone number is (612) 294-1300.
RECENT DEVELOPMENTS
On December 31, 1999, we acquired substantially all of the assets
comprising of four restaurants from ProRiver, Inc. and its wholly-owned
subsidiaries. We are currently operating these four restaurants under the name
"Red River Barbeque and Grille". The "Red River" restaurants are located in
Annapolis, Maryland, Columbia, Maryland, Frederick, Maryland and Woodbridge,
Virginia.
THE OFFERING
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<S> <C>
Common stock offered (1) ................................... 421,610 shares
Common stock outstanding
before the offering (2)................................... 9,065,360 shares
Common stock outstanding
after the offering (2).................................... 9,065,360 shares
Nasdaq National Market symbol............................... DAVE
</TABLE>
(1) Includes 200,000 shares of common stock issuable upon exercise of
warrants issued to certain of the selling shareholders.
(2) Does not include shares of Common Stock that are (a) issuable upon
exercise of certain other warrants, or (b) reserved for issuance under
various stock option agreements, including those issued under the 1997
Employee Stock Option and Compensation Plan, 1998 Director Stock Option
Plan and those issued to certain directors and executive officers.
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RISK FACTORS
An investment in our common stock is very risky. You may lose the
entire amount of your investment. Prior to making an investment decision, you
should carefully review this entire prospectus and consider the following risk
factors:
OUR RESTAURANT OPERATIONS OR CONTEMPLATED EXPANSION MAY PROVE
UNSUCCESSFUL, EITHER OF WHICH COULD RESULT IN CONTINUED UNPROFITABILITY AND
CAUSE OUR STOCK PRICE TO FALL.
Due to a variety of factors, many of which are discussed in this
prospectus, we may never generate significant revenues or operate profitably.
Even if we succeed in expanding our operations as contemplated, we cannot assure
a successful transition to higher volume operations. We may be unable to control
our expenses, attract necessary additional personnel, or procure the capital
required to maintain expanded operations. If our expansion is ultimately
unsuccessful, the results of our operations will suffer accordingly, and the
market price of our stock may fall.
OUR ABILITY, OR INABILITY, TO RESPOND TO VARIOUS COMPETITIVE FACTORS
AFFECTING THE RESTAURANT MAY AFFECT THE MARKET PRICE OF OUR COMMON STOCK.
The restaurant industry is highly competitive and is affected by
changes in consumer preferences, as well as by national, regional and local
economic conditions, and demographic trends. Discretionary spending priorities,
traffic patterns, tourist travel, weather conditions, employee availability and
the type, number and location of competing restaurants, among other factors,
will also directly affect the performance of our restaurants. Changes in any of
these factors in the markets where we currently operate our restaurants could
adversely affect the results of our operations. We compete with
moderately-priced casual dining restaurants primarily on the basis of quality of
food and service, atmosphere, location and value. In addition to existing themed
and barbeque restaurants, we expect to face competition from steakhouses and
other restaurants featuring large portions of red meat. We also compete with
other restaurants and retail establishments for quality sites. Many of our
competitors are well-established and have substantially greater financial,
marketing and other resources than us. Regional and national restaurant
companies continue to expand their operations in our current and anticipated
market areas. There is no assurance that we will be able to respond to the
various competitive factors affecting the restaurant industry.
AMONG OTHER ECONOMIC FACTORS OVER WHICH WE HAVE NO CONTROL, THE SUCCESS
OF OUR RESTAURANTS WILL DEPEND ON CONSUMER PREFERENCES AND THE PREVAILING LEVEL
OF DISCRETIONARY CONSUMER SPENDING.
Our success, and consequently any investment in our common stock,
depends to a significant degree on a number of economic conditions over which we
have no control, including discretionary consumer spending, the overall success
of the malls, entertainment centers and other venues where Famous Dave's
restaurants are or will be located, economic conditions affecting disposable
consumer income and the continued popularity of themed restaurants in general
and the Famous Dave's concept in particular. An adverse change in any or all of
these conditions would have a negative effect on our operations and the market
value of our common stock.
WE MAY NOT PAY DIVIDENDS ON OUR COMMON STOCK, IN WHICH EVENT YOUR ONLY
RETURN ON INVESTMENT, IF ANY, WILL OCCUR ON THE SALE OF OUR STOCK.
To date, we have not paid any cash dividends on our common stock, and
we do not intend to do so in the foreseeable future. Rather, we intend to use
any future earnings to fund the operations of our business
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and to finance the development and opening of additional units. Accordingly, the
only return on an investment in our common stock will occur upon its sale.
WE MAY BE UNABLE TO HIRE QUALIFIED EMPLOYEES TO HELP IMPLEMENT AND
MANAGE OUR EXPANSION PLANS, WHICH INABILITY COULD BE DETRIMENTAL TO THE VALUE OF
YOUR INVESTMENT.
We believe that a key component of the success of our concept rests
with our ability to hire, train and motivate qualified restaurant employees. In
addition, the success of our expansion strategy will depend in large part upon
our ability to supplement our existing management team. We will need to hire
additional corporate level and management employees to help implement and
operate our plans for targeted expansion restaurant operations. Any inability or
delay in obtaining additional key employees could have a material adverse effect
on our operation and/or our expansion plans and, consequently, the market value
of our stock.
THE SUCCESS OF OUR OPERATIONS ARE DEPENDENT ON OUR ABILITY TO CONTRACT
WITH RELIABLE SUPPLIERS AT COMPETITIVE PRICES.
In order to maximize operating efficiencies, we have entered into
arrangements with a major foodservice supplier pursuant to which we obtain
approximately 90% of the products used by the Company. Included in the supplier
arrangement is a provision to distribute pork and meat products provided under a
separate contract with a national meatpacking concern. Although we may be able
to obtain competitive products and prices from alternative suppliers, an
interruption in the supply of products delivered by these two food suppliers
could adversely affect our operations in short term.
WE HAVE ENTERED INTO NON-CANCELABLE LEASES UNDER WHICH WE ARE OBLIGATED
TO MAKE PAYMENTS FOR TERMS OF 7 TO 15 YEARS.
We have entered into long-term leases relating to many of our
restaurants. These leases are non-cancelable by us (except in limited
circumstances) and range in term from 7 to 15 years. We will likely be required
to enter into similar long-term, non-cancelable leases for any future
restaurants we develop. If we decide to close any of our existing restaurants or
any other future restaurant, we may nonetheless be committed to perform our
obligations under the applicable lease, which would include, among other things,
payment of the applicable base rent for the balance of the respective lease
term. Such continued obligations increase our chances of closing a restaurant
without receiving an adequate return on our investment.
IN ORDER TO FINANCE THE FUTURE ACQUISITION OR DEVELOPMENT OF ADDITIONAL
RESTAURANTS, WE MAY BE REQUIRED TO RAISE ADDITIONAL FUNDS BY ISSUING SECURITIES
ON TERMS WHICH WOULD DILUTE YOUR INTERESTS IN THE COMPANY.
The development cost of our restaurants varies depending primarily on
the size and style of the restaurant and whether it is a conversion of an
existing building or a newly constructed unit. Since inception, the development
cost, including pre-opening costs, of existing shack or lodge restaurants has
ranged from approximately $700,000 to $2,350,000 per restaurant for conversions
ranging in size from approximately 2,900 square feet to 5,500 square feet and
approximately $1,670,000 to $2,800,000 per restaurant for new construction
ranging in size from approximately 4,500 square feet to 5,900 square feet. Such
development costs does not include the cost of purchased land. The development
cost of our 10,500 square foot Minneapolis Blues Club was approximately
$2,800,000, and the development cost of our Chicago Blues Club was approximately
$6,800,000. In order to fund the Company's future acquisition or development of
additional units, we may need to obtain financing through an additional offering
of our equity securities or by incurring indebtedness. Such funds may not be
available on terms acceptable to us or our shareholders.
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Furthermore, future investors may seek and obtain, and we may be required to
offer, investment terms which are substantially better than those granted to
existing investors. The issuance of securities on such terms would dilute the
interests of existing shareholders.
WE ARE DEPENDENT ON THE ONGOING SERVICES OF CERTAIN OF OUR EXECUTIVES,
THE LOSS OF WHICH COULD HAVE A DETRIMENTAL EFFECT ON OUR PROFITABILITY AND THE
MARKET PRICE OF OUR STOCK.
Our ability to manage multiple, geographically diverse units are
central to our overall success. Our plan of business development and our
day-to-day operations rely heavily on the experience of our management team,
including Martin J. O'Dowd, our President and Chief Executive Officer and Paul
Campbell, our Chief Financial Officer. The loss of either or both of them could
adversely affect the success of our operations and strategic plans and,
consequently, have a detrimental effect on the market price of our stock.
THERE IS A RISK THAT THE VALUE OF OUR TRADEMARKS AND OTHER PROPRIETARY
RIGHTS COULD BE DIMINISHED BY IMPROPER USE BY OTHERS.
We believe that our trademarks and other proprietary rights are
important to our success and our competitive position. Accordingly, we have
received various trademarks and have applied for registration of additional
service marks and intend to defend these marks. However, the actions we have
taken or may take in the future to establish and protect our trademarks and
other proprietary rights may be inadequate to prevent others from imitating our
products or claiming violations of their trademarks and proprietary rights by
us. For instance, we may not be granted trademark registration for any or all of
the proposed uses in our applications. Even if our marks are granted
registration, we may still be unable to protect such marks against prior users
in areas where we conduct or will conduct operations. We may also be unable to
prevent competitors from using the same or similar marks, concepts or
appearance.
THE RESTAURANT INDUSTRY IS SUBJECT TO EXTENSIVE GOVERNMENT REGULATION
WHICH COULD NEGATIVELY IMPACT OUR BUSINESS.
The restaurant industry is subject to extensive state and local
government regulation by various government agencies, including state and local
licensing, zoning, land use, construction and environmental regulations and
various regulations relating to the preparation and sale of food and alcoholic
beverages, sanitation, disposal of refuse and waste products, public health,
safety and fire standards, minimum wage requirements, workers compensation and
citizenship requirement.
To the extent that we offer and sell franchises, we are also subject to
federal regulation and certain state laws which govern the offer and sale of
franchises. Many state franchise laws impose substantive requirements on
franchise agreements, including limitations on non-competition provisions and
termination or non-renewal of a franchise.
Any change in the current status of such regulations, including an
increase in employee benefits costs, workers' compensation insurance rates, or
other costs associated with employees, could substantially increase our
compliance and labor costs. Because we pay many of our restaurant-level
personnel rates based on either the federal or the state minimum wage, increases
in the minimum wage would lead to increased labor costs. In addition, our
operating results would be adversely affected in the event we fail to maintain
our food and liquor licenses. Furthermore, restaurant operating costs are
affected by increases in unemployment tax rates, sales taxes and similar costs
over which we have no control.
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We may also be subject in certain states to "dram-shop" statutes, which
provide a person injured by an intoxicated person the right to recover damages
from an establishment that wrongfully served alcoholic beverages to the
intoxicated person.
OUR COMMON STOCK COULD BE DELISTED FROM THE NASDAQ NATIONAL MARKET,
WHICH DELISTING COULD HINDER YOUR ABILITY TO OBTAIN ACCURATE QUOTATIONS AS TO
THE PRICE OF OUR COMMON STOCK, OR DISPOSE OF OUR COMMON STOCK IN THE SECONDARY
MARKET.
Although our common stock is currently listed on the Nasdaq National
Market, we cannot guarantee that an active public market for our common stock
will continue to exist. Our common stock is required to maintain a minimum bid
price of $1.00 per share in order to trade on the Nasdaq National Market. In the
event our common stock fails to maintain the minimum bid price criteria, our
securities may be delisted from the Nasdaq National Market or be required to
reapply for listing meeting the Nasdaq initial listing requirements, which are
generally more stringent than the requirements currently governing the Company.
Additional factors giving rise to such delisting could include, but might not be
limited to (1) a reduction of our net tangible assets to below $4,000,000, (2) a
reduction to one active market maker, (3) a reduction in the market value of the
public float in our securities to less than $5,000,000, or (4) the discretion of
the Nasdaq National Market.
Nasdaq National Market trading, if any, in our common stock would
thereafter be conducted in the over-the-counter markets in the so-called "pink
sheets" or the National Association of Securities Dealer's "Electronic Bulletin
Board." Consequently, the liquidity of our common stock would likely be
impaired, not only in the number of shares which could be bought and sold, but
also through delays in the timing of the transactions, reduction in the coverage
of Famous Dave's of America, Inc. by security analysts and the news media, and
lower prices for our securities than might otherwise prevail. In addition, our
common stock would become subject to certain rules of the Securities and
Exchange Commission relating to "penny stocks." These rules require
broker-dealers to make special suitability determinations for purchasers other
than established customers and certain institutional investors and to receive
the purchasers' prior written consent for a purchase transaction prior to sale.
Consequently, these "penny stock rules" may adversely affect the ability of
broker-dealers to sell our common stock and may adversely affect your ability to
sell shares of our common stock in the secondary market.
PURSUANT TO ITS AUTHORITY TO DESIGNATE AND ISSUE SHARES OF OUR STOCK AS
IT DEEMS APPROPRIATE, OUR BOARD OF DIRECTORS MAY ASSIGN RIGHTS AND PRIVILEGES TO
CURRENTLY UNDESIGNATED SHARES WHICH COULD ADVERSELY AFFECT YOUR RIGHTS AS A
COMMON SHAREHOLDER.
Our authorized capital consists of 100,000,000 shares of capital stock.
Our Board of Directors, without any action by the shareholders, may designate
and issue shares in such classes or series (including classes or series or
preferred stock) as it deems appropriate and establish the rights, preferences
and privileges of such shares, including dividends, liquidation and voting
rights. As of January 20, 2000, we had 9,065,360 shares of common stock
outstanding.
The rights of holders of preferred stock and other classes of common
stock that may be issued could be superior to the rights granted to the current
holders of our common stock. Our Board's ability to designate and issue such
undesignated shares could impede or deter an unsolicited tender offer or
takeover proposal. Further, the issuance of additional shares having
preferential rights could adversely affect the voting power and other rights of
holders of common stock.
MINNESOTA LAW MAY INHIBIT OR DISCOURAGE TAKEOVERS, WHICH COULD REDUCE
THE MARKET VALUE OF OUR
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STOCK.
Being a corporation organized under Minnesota law, we are subject to
certain Minnesota statutes which regulate business combinations and restrict the
voting rights of certain persons acquiring shares of our stock. By impeding a
merger, consolidation, takeover or other business combination involving Famous
Dave's of America, Inc. or discouraging a potential acquiror from making a
tender offer or otherwise attempting to obtain control of the Company, these
regulations could adversely affect the market value of our stock.
THE LIMITATIONS ON DIRECTOR LIABILITY CONTAINED IN OUR ARTICLES OF
INCORPORATION AND BYLAWS MAY DISCOURAGE SUITS AGAINST DIRECTORS FOR BREACH OF
FIDUCIARY DUTY.
As permitted by Minnesota law, our Articles of Incorporation provide
that members of our Board of Directors are not personally liable to you or the
Company for monetary damages resulting from a breach of their fiduciary duties.
These limitations on director liability may discourage shareholders from suing
directors for breach of fiduciary duty and may reduce the likelihood of
derivative litigation brought against a director by shareholders on the
Company's behalf. Furthermore, our Bylaws provide for mandatory indemnification
of directors and officers to the fullest extent permitted by Minnesota law. All
of these provisions limit the extent to which the threat of legal action against
our directors and officers for any breach of their fiduciary duties will prevent
such breach from occurring in the first instance.
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USE OF PROCEEDS
The gross proceeds to the Company from the exercise of the warrants, if
the warrants are exercised in full, would be a maximum of $1,200,001. The
proceeds from the exercise of the warrants are intended to be used for working
capital purposes. The Company will not receive any proceeds from the sale of the
common stock by the selling shareholders.
SELLING SHAREHOLDERS
The following table sets forth the number of shares of the common stock
owned by the selling shareholders as of January 18, 2000 and after giving effect
to this offering. We will not receive any proceeds from the sale of the common
stock by the selling shareholders. The shares of common stock received upon
exercise of the warrants may be offered from time to time by the selling
shareholders.
<TABLE>
<CAPTION>
Shares Percentage Number of Percentage
Beneficially Beneficial Shares Offered Beneficial
owned before Ownership by Selling Ownership After
Name Offering Before Offering Shareholder Offering
- ---- ------------ --------------- -------------- ---------------
<S> <C> <C> <C> <C>
Barman Capital LLC 47,667 (1) * 47,667 (1) *
Doepken Keevican & Weiss, P.C. 5,686 * 5,686 *
Bates, Barksdale, Ickert & 980 * 980 *
Company
Andrew Batch 1,500 * 1,500 *
W. Douglas Drumheller 15,888 * 15,888 *
John Asadoorian 1,500 * 1,500 *
Connie Eckstein 1,200 * 1,200 *
Jim Burchell 500 * 500 *
Lois Barone 1,200 * 1,200 *
Janet Cottone 900 * 900 *
Patsy Sofranko 1,200 * 1,200 *
ProRiver, Inc. 343,389 (2)(3) 3.64% 343,389 (2)(3) 3.64%
</TABLE>
- --------------
*Less than 1%.
(1) Includes 21,000 shares of common stock of Famous Dave's of America, Inc.
issuable upon exercise of warrants.
(2) Includes 179,000 shares of common stock of Famous Dave's of America, Inc.
issuable upon exercise of warrants.
(3) Includes 40,000 shares of common stock of Famous Dave's of America, Inc.
being held in escrow as security for the indemnification obligations of
ProRiver, Inc. under the Asset Purchase Agreement dated as of December 31,
1999, by and between, among others, Famous Dave's of America, Inc., and
ProRiver, Inc.
PLAN OF DISTRIBUTION
Pursuant to the terms of the Asset Purchase Agreement dated as of December
31, 1999, we are registering the shares offered by this prospectus on behalf of
the selling shareholders. We agreed to file a registration statement under the
Securities Act of 1933, as amended (the "Securities Act") covering resale by the
selling shareholders of the shares and to use our best efforts to cause such
registration statement to be declared effective as soon as possible thereafter.
As used in this section, the term "selling shareholders"
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includes Barman Capital LLC, Doepken Keevican & Weiss, P.C., Bates, Barksdale,
Ickert & Company, Andrew Batch, Doug Drumheller, John Asadoorian, Connie
Eckstein, Jim Burchell, Lois Barone, Janet Cottone, Patsy Sofranko and ProRiver,
Inc., as well as their respective donees, pledgees, transferees and other
successors in interest selling shares received from a selling shareholder after
the date of this prospectus. We will pay all costs and expenses in connection
with the preparation of this prospectus and the registration of the shares
offered by it. Any brokerage commissions and similar selling expenses
attributable to the sale of shares will be borne by the selling shareholders.
Sales of shares may be effected by the selling shareholders at various times in
one or more types of transactions (which may include block transactions) on the
Nasdaq National Market, in negotiated transactions, through put or call options
transactions relating to the shares, through short sales of shares, or a
combination of such methods of sale at market prices prevailing at the time of
sale or at negotiated prices. Such transactions may or may not involve brokers
or dealers. The selling shareholders have advised us that they have not entered
into any agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of the shares, nor is there an underwriter or
coordinating broker acting in connection with the proposed sale of shares by the
selling shareholders.
The selling shareholders and any broker-dealers that act in connection
with the sale of securities might be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act, and any commissions received by
such broker-dealers and any profit on the resale of the securities sold by them
while acting as principals might be deemed to be underwriting discounts or
commissions under the Securities Act.
Because selling shareholders may be deemed to be "underwriters" within
the meaning of Section 2(11) of the Securities Act, the selling shareholders
will be subject to the prospectus delivery requirements of the Securities Act.
We have informed the selling shareholders that the anti-manipulative provisions
of Regulation M promulgated under the Securities Exchange Act of 1934, as
amended, may apply to their sales in the market.
Selling shareholders also may resell all or a portion of the shares in
open market transactions in reliance upon Rule 144 under the Securities Act,
provided they meet the criteria and conform to the requirements of that Rule.
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 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, or 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.
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<PAGE> 12
WHERE YOU CAN FIND MORE INFORMATION
Federal securities law requires Famous Dave's of America, Inc. to file
information with the Securities and Exchange Commission concerning its business
and operations. Accordingly, we file annual, quarterly, and special reports,
proxy statements and other information with the Commission. You can inspect and
copy this information at the Public Reference Facility maintained by the
Commission at Judiciary Plaza, 450 5th Street, N.W., Room 1024, Washington, D.C.
20549. You can also do so at the following regional offices of the Commission:
(1) New York Regional Office, 7 World Trade Center, Suite 1300, New York,
New York 10048
(2) Chicago Regional Office, Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661.
You can receive additional information about the operation of the
Commission's Public Reference Facilities by calling the Commission at
1-800-SEC-0330. The Commission also maintains a website at http://www.sec.gov
that contains reports, proxy and information statements and other information
regarding companies that, like Famous Dave's of America, Inc., file information
electronically with the Commission.
The Commission allows us to "incorporate by reference" information that
has been filed with it, which means that we can disclose important information
to you by referring you to the other information we have filed with the
Commission. The information that we incorporate by reference is considered to be
part of this prospectus, and related information that we file with the
Commission will automatically update and supersede information we have included
in this prospectus. We also incorporate by reference any future filings we make
with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended, until the selling shareholders sell all of
their shares or until the registration rights of the selling shareholders
expire. This prospectus is part of a registration statement that we filed with
the Commission (Registration No. 333-______). The following are specifically
incorporated herein by reference:
1. Annual Report on Form 10-KSB for the fiscal year ended January 3,
1999;
2. Quarterly Report on Form 10-QSB for the quarters ended April 4,
1999, July 4, 1999 and October 3, 1999;
3. The description of the Registrant's common stock included under
the caption "Securities to be Registered" in its Registration
Statement on Form 8-A, File No. 333-10675, dated October 25,
1996, including any amendments or reports filed for the purpose
of updating such description.
You can request a free copy of the above filings or any filings
subsequently incorporated by reference into this prospectus by writing or
calling us at the following address:
Famous Dave's of America, Inc.
Attention: Martin O'Dowd, Chief Executive Officer
7657 Anagram Drive
Eden Prairie, Minnesota 55344
(612) 294-1300
You should rely only on the information incorporated by reference or
provided in this prospectus or
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<PAGE> 13
any supplement or amendment to this prospectus. We have not authorized anyone
else to provide you with different information or additional information.
Selling shareholders will not make an offer of our common stock in any state
where the offer is not permitted. You should not assume that the information in
this prospectus, or any supplement or amendment to this prospectus, is accurate
at any date other than the date indicated on the cover page of such documents.
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in this prospectus and in the documents
incorporated by reference in this prospectus are "forward-looking statements"
within the meaning of Section 27A of the Securities Act of 1933 and Section 21E
of the Securities Exchange Act of 1934. These forward-looking statements can be
identified by the use of predictive, future-tense or forward-looking
terminology, such as "believes," "anticipates," "expects," "estimates," "may,"
"will" or similar terms. Forward-looking statements also include projections of
financial performance, statements regarding management's plans and objectives
and statements concerning any assumption relating to the foregoing. Important
factors regarding Famous Dave's of America, Inc.'s business, operations and
competitive environment which may cause actual results to vary materially from
these forward-looking statements are discussed under the caption "Risk Factors."
LEGAL MATTERS
Legal matters in connection with the validity of the shares offered by
this Prospectus will be passed upon for the Company by Maslon Edelman Borman &
Brand, LLP, Minneapolis, Minnesota.
EXPERTS
The consolidated financial statements of Famous Dave's of America, Inc.
as of January 3, 1999 and for the year then ended incorporated by reference in
the registration statement of which this prospectus is a part have been audited
by Lund Koehler Cox & Arkema, LLP, independent public accountants, as indicated
in their report with respect thereto, and are incorporated herein in reliance
upon the authority of that firm as experts in giving said report. Reference is
made to said report.
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
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. Subdivision 4 of Section
302A.521 of the Minnesota Statutes provides that a corporation's articles of
incorporation or bylaws may prohibit such indemnification
12
<PAGE> 14
or place limits upon the same. The Company's articles and bylaws do not include
any such prohibition or limitation. As a result, the Company is bound by the
indemnification provisions set forth in Section 302A.521 of the Minnesota
Statutes. As permitted by Section 302A.251 of the Minnesota Statutes, the
Articles of Incorporation of the Company provide that a director shall, to the
fullest extent permitted by law, have no personal liability to the Company and
its shareholders for breach of fiduciary duty as a director.
To the extent that indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Company pursuant to the foregoing provisions, the Company has been informed
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
13
<PAGE> 15
421,610 SHARES
FAMOUS DAVE'S OF AMERICA, INC.
COMMON STOCK
---------------------
PROSPECTUS
---------------------
JANUARY , 2000
-----
14
<PAGE> 16
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the issuance and distribution
of the securities registered hereby are set forth in the following table:
<TABLE>
<S> <C>
SEC registration fee.............................................. $ 245.22
Nasdaq National Market additional listing fee..................... $ 8,432.20
Legal fees and expenses........................................... $ 10,000
Accounting fees and expenses...................................... $ 2,000
Total $ 20,677.42
===========
</TABLE>
ITEM 15. 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. Subdivision 4 of Section 302A.521 of the Minnesota Statutes
provides that a company's articles of incorporation or bylaws may prohibit such
indemnification or place limits upon the same. The Company's articles and bylaws
do not include any such prohibition or limitation. As a result, the Company is
bound by the indemnification provisions set forth in Section 302A.521 of the
Minnesota Statutes.
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 Agency Agreement
contains provisions under which the Company, on the one hand, and the Placement
Agent, on the other hand, have agreed to indemnify each other (including
officers and directors of the Company and the Placement Agent, and any person
who may be deemed to control the Company or the Placement Agent) against certain
liabilities, including liabilities under the Securities Act of 1933, as amended.
15
<PAGE> 17
ITEM 16. EXHIBITS.
EXHIBIT DESCRIPTION OF DOCUMENT
5 Opinion of Maslon Edelman Borman & Brand, LLP
23.1 Consent of Lund Koehler Cox & Arkema, LLP
23.2 Consent of Maslon Edelman Borman & Brand, LLP (included in Exhibit 5).
24 Power of Attorney (included on page II-3).
ITEM 17. UNDERTAKINGS.
(a) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(b) The undersigned Registrant 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; (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; and (iii) to include
any material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering; and
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
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<PAGE> 18
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized in the City of Eden
Prairie, State of Minnesota, on January 21, 2000.
Famous Dave's of America. Inc., Registrant
By /s/ Martin O'Dowd
-----------------------------------------
Martin J. O'Dowd, Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Martin
J. O'Dowd or Paul Campbell, each or either of them, as such person's true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution for such person and in such person's name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
necessary or desirable to be done in and about the premises, as fully to all
intents and purposes as such person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
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.
<TABLE>
<CAPTION>
NAME TITLE DATE
- ---- ----- ----
<S> <C> <C>
/s/ David W. Anderson Chairman of the Board January 21, 2000
- ----------------------------------
David W. Anderson
/s/ Martin J. O'Dowd President, Chief Executive Officer, January 21, 2000
- ---------------------------------- Secretary and Director
Martin J. O'Dowd
/s/ Paul Campbell Chief Financial Officer (Principal January 21, 2000
- ---------------------------------- Financial Officer and Principal
Paul Campbell Accounting Officer)
/s/ Richard L. Monfort Director January 21, 2000
- ----------------------------------
Richard L. Monfort
</TABLE>
17
<PAGE> 19
EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION OF DOCUMENT PAGE NO.
------- ----------------------- --------
<S> <C> <C>
5 Opinion of Maslon Edelman Borman & Brand, LLP 19
23.1 Consent of Lund Koehler Cox & Arkema LLP 20
</TABLE>
18
<PAGE> 1
EXHIBIT 5
January 20, 2000
Famous Dave's of America, Inc.
7657 Anagram Drive
Eden Prairie, Minnesota 55437
Re: Registration Statement on Form S-3
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-3 (the
"Registration Statement") to be filed by the Company with the Securities and
Exchange Commission on January 24, 2000 relating to the registration under the
Securities Act of 1933, as amended, of a maximum of 421,610 shares of common
stock, par value $.01 per share (the "Common Stock"), of which 200,000 shares of
Common Stock are issuable by the Company upon exercise of certain warrants to
purchase shares of Common Stock and 221,610 shares are offered by certain
selling shareholders.
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 Common Stock has been duly authorized and, when
issued as described in the registration statement,
will be legally 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, LLP
19
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
February 8, 1999 included in the Company's Form 10-KSB for the fiscal year ended
January 3, 1999 and to all references to our firm included in this Registration
Statement.
LUND KOEHLER COX & ARKEMA LLP
Minneapolis, Minnesota
January 19, 2000
20
