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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 2, 1998
REGISTRATION NO. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CAFE ODYSSEY, INC.
(Exact name of Small Business Issuer as specified in its charter)
MINNESOTA
(State or other jurisdiction of incorporation)
31-1487885
(IRS Employer Identification No.)
4801 WEST 81ST STREET, SUITE 112
BLOOMINGTON, MINNESOTA 55437
(Address of principal executive offices)
1997 STOCK OPTION AND COMPENSATION PLAN
AND DIRECTOR STOCK OPTION AGREEMENTS
(Full title of Plan)
RONALD K. FULLER
CHIEF EXECUTIVE OFFICER
CAFE ODYSSEY, INC.
4801 WEST 81ST STREET, SUITE 112
BLOOMINGTON, MINNESOTA 55437
(612) 837-9917
(Name, address and telephone number of agent for service)
Copies to:
WILLIAM M. MOWER, ESQ.
MASLON EDELMAN BORMAN & BRAND, LLP
3300 NORWEST CENTER
MINNEAPOLIS, MN 55402-4140
(612) 672-8200
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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AMOUNT OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SHARES TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE (1) REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock ($.01 par value 75,000 $1.63 $122,250.00 $41.44
per share) Director Stock Option
Agreements
Common Stock ($.01 par value 1,250,000 $1.63 $2,037,500.00 $690.68
per share) reserved under the
1997 Stock Option and
Compensation Plan
=======================================================================================================================
</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 August 27, 1998.
Exhibit Index at Page 6
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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.
333-34235, filed on August 22, 1997, as amended.
(b) The contents of the Registrant's Form 10-KSB for the fiscal year ended
December 28, 1997.
(c) The contents of the Registrant's Form 10-QSB for the quarters ended March
29, 1998 and June 28, 1998.
(d) The description of Common Stock included under the caption "Securities to
be Registered" in its Registration Statement on Form 8-A, File No.
0-23243, dated October 21, 1997, 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 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.
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Item 8. Exhibits.
4.1 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. 333-34235))
4.2 Bylaws of the Small Business Issuer (incorporated herein by reference
to the Small Business Issuer's Registration Statement on Form SB-2
(Registration No. 333-34235)).
5 Opinion of Maslon Edelman Borman & Brand, LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Maslon Edelman Borman & Brand, LLP (contained in Exhibit
5).
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 be 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.
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(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to Section 13(a)
or 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.
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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 Bloomington, State of Minnesota, on August 28,
1998.
Cafe Odyssey, Inc.
Small Business Issuer
By /s/ Ronald K. Fuller
------------------------------------------
Chief Executive Officer
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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<CAPTION>
NAME TITLE DATE
- ---- ----- ----
<S> <C> <C>
/s/ Stephen D. King Chairman of the Board August 28, 1998
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Stephen D. King
/s/ Ronald K. Fuller President, Chief Executive Officer, August 28, 1998
- --------------------------- Chief Operating Officer and Director
Ronald K. Fuller (principal executive officer)
/s/ Anne D. Huemme Vice President - Finance and August 28, 1998
- --------------------------- Chief Financial Officer
Anne D. Huemme (principal financial and
accounting officer)
/s/ Michael L. Krienik Director August 28, 1998
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Michael L. Krienik
/s/ Martin J. O'Dowd Director August 28, 1998
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Martin J. O'Dowd
/s/ Thomas W. Orr Director August 28, 1998
- ---------------------------
Thomas W. Orr
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EXHIBITS
Exhibit
Number Description of Exhibit Page No.
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5 Opinion of Maslon Edelman Borman & Brand, LLP 7
23.1 Consent of Ernst & Young LLP 8
23.2 Consent of Arthur Andersen LLP 9
23.3 Consent of Maslon Edelman Borman & Brand, LLP
(contained in Exhibit 5) 7
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Exhibit 5
[MASLON EDELMAN BORMAN & BRAND LETTERHEAD]
August 28, 1998
Cafe Odyssey, Inc.
4801 West 81st Street, Suite 112
Bloomington, Minnesota 55437
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted on behalf of Cafe Odyssey, 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 1,325,000 shares of Common Stock, $.01 par value (the "Shares"):
75,000 shares to be issued by the Company pursuant to certain Director Stock
Option Agreements (the "Agreements") and 1,250,000 shares to be issued by the
Company under the 1997 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, LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm in the Registration Statement (Form
S-8, No. 333- ) of Cafe Odyssey, Inc. for the registration of 1,325,000
shares of its common stock under the 1997 Stock Option and Compensation Plan
and Director Stock Option Agreements and to the incorporation by reference
therein of our report dated August 20, 1997, with respect to the financial
statements of Cafe Odyssey, Inc. included in the Registration Statement
Form SB-2, File No. 333-34235 for the year ended December 31, 1996, filed
with the Securities and Exchange Commission.
Cincinnati, Ohio
September 1, 1998
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Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated February 13, 1998
included in Cafe Odyssey, Inc.'s Form 10-KSB for the year ended December 28,
1997 and to all references to our firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Minneapolis, Minnesota
August 28, 1998
