As filed with the Securities and Exchange Commission on August 3, 1999
Registration No.___________
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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. 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
Maximum Proposed
Amount Offering Maximum Amount of
Title of Securities to be Price Aggregate Registration
to be Registered Registered Per Share Offering Price Fee
- --------------------------------------------------------------------------------
Common Stock, $0.00074
par value 550,000 $0.875 $481,250 $134
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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 July 29, 1999
which is within five business days prior to the date of filing.
Page 1 of 8
Exhibit Index on Page 6
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The purpose of this Form S-8 Registration Statement is to increase the
number of shares of Registrant's Common Stock, $0.00074 par value (the
"Shares"), available for issuance under Registrant's Stock Option Plan, as
previously registered on Registrant's Form S-8 Registration Statements, File
Nos. 333-27325 and 333-59535, by 550,000 Shares to 1,750,000 Shares.
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 January 3, 1999, filed on May 3, 1999, as amended by
Form 10-K/A (Amendment No. 3) filed on May 3, 1999.
2. The Registrant's Form 8-A Registration Statement (File No.
000-24982) filed pursuant to Section 12 of the Securities 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 S-8 Registration Statement (File No.
333-27325) filed pursuant to the Securities Act of 1933 on May 15,
1997, for the registration of 350,000 Shares.
4. The Registrant's Form S-8 Registration Statement (File No.
333-59535) filed pursuant to the Securities Act of 1933 on July 21,
1998, for the registration of 850,000 Shares.
5. The Registrant's Form 14-A (File No. 000-24982) Proxy Statement
filed on May 24, 1999.
6. 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 January 3, 1999
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.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
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 6.
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
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Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this 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.
(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
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Pursuant to the requirements of the Securities Act of 1933, as amended,
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 on form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Rockville, State of
Maryland, on the 2nd day of August, 1999.
SILVER DINER, INC.
By: /s/ Robert Giaimo
----------------------------------------------
President and Chief Executive Officer
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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 Craig Kendall, 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 August 2, 1999
- -------------------------- Officer and Director
Robert Giaimo
/s/ Craig Kendall Vice President-Finance/Principal
- -------------------------- Financial Officer August 2, 1999
Craig Kendall
/s/ Catherine Britton Director August 2, 1999
- --------------------------
Catherine Britton
/s/ Ype Von Hengst Director August 2, 1999
- --------------------------
Ype Von Hengst
/s/ Edward Kaplan Director August 2, 1999
- --------------------------
Edward Kaplan
/s/ Louis P. Neeb Director August 2, 1999
- --------------------------
Louis P. Neeb
/s/ Charles Steiner Director August 2, 1999
- --------------------------
Charles Steiner
/s/ Michael Collier Director August 2, 1999
- --------------------------
Michael Collier
CHECK WITH ARW RE COLLIER POWER-OF-ATTORNEY; DID NOT SIGN 10-K
Page 5 of 8
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EXHIBIT INDEX
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Exhibits Page
- -------- ----
5. Opinion of Arent Fox Kintner Plotkin & Kahn re: validity
of securities registered.............................................6
23. Consents of Experts and counsel:
(a) Consent of Deloitte & Touche LLP (certified public accountants)..8
(b) Consent of Arent Fox Kintner Plotkin & Kahn (counsel): included
in Exhibit 5.....................................................9
24. Power of Attorney: included on signature page
Page 6 of 8
EXHIBIT 5
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[Arent Fox]
August 2, 1999
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
U.S. Securities and Exchange Commission (the "Commission") in connection with
the registration under the Securities Act of 1933, as amended, of 550,000 shares
of Common Stock, $0.00074 par value (the "Shares"), subject to the Silver Diner,
Inc. Stock Option Plan (the "Plan").
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 550,000 Shares subject to
the Plan, when issued and paid for in accordance with the terms of the Plan,
will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the Company's
Registration Statement on Form S-8 and to all references to our firm in such
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, PLLC
By: /s/ Arnold R. Westerman
---------------------------
Arnold R. Westerman
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EXHIBIT 23(a)
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Silver Diner, Inc. on Form S-8 relating to the Silver Diner, Inc.
Stock Option Plan, of our report dated March 8, 1999, appearing in the Annual
Report on Form 10-K of Silver Diner, Inc. for the year ended January 3, 1999.
/s/ Deloitte & Touche LLP
- -------------------------------
McLean , Virginia
July 30, 1999
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