As filed with the Securities and Exchange Commission on_______, 1997
Registration No. 33-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
SILVER DINER, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-3234411
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
11806 Rockville Pike
Rockville, Maryland 20852
(301)770-0333
(Address of Principal Executive Offices, Including Zip Code)
SILVER DINER INC. EMPLOYEE STOCK PURCHASE PLAN
AND
SILVER DINER INC. STOCK OPTION PLAN
(Full Title of the Plan)
Robert T. Giaimo
President
11806 Rockville Pike
Rockville, Maryland 20852
(Name and Address of Agent for Service)
(301) 770-0333
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
Arnold R. Westerman, Esq.
Arent Fox Kintner Plotkin & Kahn
1050 Connecticut Avenue, N.W.
Washington, DISTRICT OF COLUMBIA 20036-5339
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount Maximum Maximum
Title of Securities to be Offering Price Aggregate Amount of Registration
to be Registered Registered Per Share Offering Price Fee
- ---------------------------------------------------------------------------------------------------------------------------
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Common Stock, $0.01 par value 300,000
shares for the Employee Stock Purchase
Plan, 350,000 shares for the Employee
Stock Option Plan, and 27,575 shares
for the 1991 Stock Option Plan 677,525 $3.0625 $2,074,920.31 $628.76
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(1) Pursuant to Rule 457(h)(1), based on the average of the high and low prices
of the Common Stock reported in the NASDAQ National Market on May 12, 1997 which
is within five business days prior to the date of filing.
Page 1 of 8
Exhibit Index on Page 5
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
* Registrant (formerly known as Food Trends Acquisition Corporation)
agrees to furnish the information required by Part I, Items 1 and
2 to each participant as specified by Rule 428(b)(1). Such documents
shall not be deemed to be filed with the Commission either as part
of this registration statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents and the documents
incorporated by reference in the registration statement pursuant to
Item 3 of Part II of this form, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents previously filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement:
1. The Registrant's Annual Report on Form 10-K (File No. 000-24982)
for the year ended December 29, 1996, filed on March 31, 1997.
2. The Registrant's Form 8-A Registration Statement (File No.
000-24982) filed pursuant to Section 12 of the Exchange Act,
containing a description of the Registrant's common stock
("Shares"), including any amendment or report filed for the
purpose of updating such description.
3. The Registrant's Form 14-A (File No. 000-24982 ) Proxy Statement
filed on April 29, 1997 as amended.
4. All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") since the
end of the fiscal year ended December 29, 1996.
In addition, all documents subsequently filed by the Registrant
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 a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
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Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law, as amended,
provides that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director, officer, employee or agent of the
corporation or is or was serving at its request in such capacity in another
corporation or business association, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 102(b)(7) of the Delaware General Corporation Law, as amended,
permits a corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit.
Article Eighth of the Registrant's Certificate of Incorporation, as
amended, provides for the elimination of personal liability of a director for
breach of fiduciary duty as permitted by Section 102(b)(7) of the Delaware
General Corporation Law, and Article Eighth also provides that the Registrant
may indemnify its directors and officers to the full extent permitted by the
Delaware General Corporation Law.
The Registrant has in effect a directors and officers liability
insurance policy under which the directors and officers of the Registrant are
insured against loss arising from claims made against them due to wrongful acts
while acting in their individual and collective capacities as directors and
officers, subject to certain exclusions.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
See Exhibit Index on page 5.
Item 9. Undertakings
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, a post-effective
amendment to this Registrant 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 this Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (1)(i) and
(1)(ii) above 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 Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in this Registration Statement.
2--
<PAGE>
(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.
(b) The Registrant hereby further undertakes 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 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.
(c) 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, unless in the opinion of its counsel the matter has
been settled by controlling precedent, will submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
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 Rockville, State of Maryland, on the 15th day of
May, 1997.
SILVER DINER, INC.
/s/ Robert Giaimo
By: ______________________________
Robert Giaimo
President and Chief Executive Officer
POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Robert T. Giaimo and David Oden, and each of them
his true and lawful attorney-in-fact and agent with power of substitution and
resubstitution, for him, and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post effective amendments)
to this Registration Statement on Form S-8, and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the
Commission, granting unto said attorney-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done to comply with the provisions of the
Securities Act and all requirements of the Commission, hereby ratifying and
confirming all that said attorney-in-fact or any of them, or their or his or her
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated:
Signatures Title Date
- ---------- ----- ----
/s/ Robert Giaimo President, Chief Executive May 15, 1997
- --------------------------- Officer and Director
Robert Giaimo
/s/ David Oden Vice President and Chief Financial May 15, 1997
- --------------------------- Officer
David Oden
/s/ Cathrine Britton Director May 15, 1997
- ---------------------------
Cathrine Britton
/s/ Clinton Clark Director May 15, 1997
- ---------------------------
Clinton Clark
/s/ Ype Hengst Director May 15, 1997
- ---------------------------
Ype Hengst
/s/ Edward Kaplan Director May 15, 1997
- ---------------------------
Edward Kaplan
/s/ George Naddaff Director May 15, 1997
- ---------------------------
George Naddaff
/s/ Louis P. Neeb Director May 15, 1997
- ---------------------------
Louis P. Neeb
/s/ Charles Steiner Director May 15, 1997
- ---------------------------
Charles Steiner
/s/ Douglas M. Suliman Director May 15, 1997
- ---------------------------
Douglas M. Suliman
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EXHIBIT INDEX
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Exhibits Page
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4. Instruments defining the rights of securityholders:
The following document previously filed by the Registrant with
the Securities and Exchange Commission (the "Commission") is
incorporated by reference in this Registration Statement:
Appendices B and C to the Registrant's Proxy
Statement on Form 14-A (File No. 000- 24982) filed on
April 29, 1997 as amended.
Exhibit 10.14 to the Registrant's Current Report on Form 8-K (File No. 000-24982) filed on
May 3, 1996.
5. Opinion of Arent Fox Kintner Plotkin & Kahn re: validity of securities registered................................6
23. Consents of experts and counsel:
(a) Consent of Reznick Fedder & Silverman, P.C. (certified public accountants)..........................7
(b) Consent of Deloitte & Touche LLP (certified public accountants).....................................8
(d) Consent of Arent Fox Kintner Plotkin & Kahn (counsel): included in exhibit 5
24. Power of Attorney: included on signature page.
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EXHIBIT 5
[Arent Fox]
May 16, 1997
The Board of Directors
Silver Diner, Inc.
11806 Rockville Pike
Rockville, Maryland 20852
Gentlemen:
We have acted as counsel to Silver Diner, Inc. , (the "Company"), with
respect to the Company's Registration Statement on Form S-8, filed by the
Company with the Securities and Exchange Commission (the "Commission") in
connection with the registration under the Securities Act of 1933, as amended,
of 677,525 shares of Common Stock, $0.01 par value (the "Shares"), subject to
the Silver Diner, Inc. Employee Stock Option Plan, the Silver Diner Inc.
Employee Stock Purchase Plan, and the 1991 Stock Option Plan of Silver Diner
Development, Inc. (together, the "Plans").
As counsel to the Company, we have examined the Company's Certificate
of Incorporation and such records, certificates and other documents of the
Company, as well as relevant statutes, regulations, published rulings and such
questions of law, as we considered necessary or appropriate for the purpose of
this opinion.
Based on the foregoing, we are of the opinion that the 677,525 Shares
subject to the Plans, when issued and paid for in accordance with the terms of
the Plans, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to all references to our firm in the Registration
Statement. In giving this consent, we do not hereby admit that we come within
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the General Rules and Regulations thereunder.
Very truly yours,
ARENT FOX KINTNER PLOTKIN & KAHN
/s/ Arnold R. Westerman
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By: Arnold R. Westerman
EXHIBIT 23(a)
The Board of Directors
Silver Diner, Inc.
We hereby consent to incorporation by reference in the
Registration Statement on Form S-8 of our report dated April 2, 1996, related to
the combined financial statements of Silver Diner Development, Inc., Silver
Diner Limited Partnership and Silver Diner Potomac Mills, Inc., as of December
31, 1995 and January 1, 1995 and for each of the three years in the period ended
December 31, 1995, which was contained in the Registration Statement on Form S-3
(File No. 333-09735) filed with the Commission on August 7, 1996 and declared
effective by the Commission on August 14, 1996.
/s/ Reznick Fedder & Silverman, P.C.
Bethesda, Maryland
May 15, 1997
EXHIBIT 23(b)
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement of
Silver Diner, Inc. on Form S-8 of our report dated March 14, 1997, appearing in
the Annual Report on Form 10-K of Silver Diner, Inc. for the year ended
December 29, 1996.
/s/ Deloitte & Touche LLP
Washington, D.C.
May 16, 1997
