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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 4, 1996
REGISTRATION NO. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
RAINFOREST CAFE, INC.
(Exact name of registrant as specified in its charter)
MINNESOTA
(State or other jurisdiction of incorporation)
41-1779527
(IRS Employer Identification No.)
720 SOUTH FIFTH STREET
HOPKINS, MINNESOTA 55343
(Address of principal executive offices)
DIRECTOR STOCK OPTION AGREEMENTS
(Full title of Plan)
MARTIN J. O'DOWD
RAINFOREST CAFE, INC.
720 SOUTH FIFTH STREET
HOPKINS, MINNESOTA 55343
(612) 945-5400
(Name, address and telephone number of agent for service)
Copies to:
DOUGLAS T. HOLOD, ESQ.
MASLON EDELMAN BORMAN & BRAND,
A PROFESSIONAL LIMITED LIABILITY PARTNERSHIP
3300 NORWEST CENTER
MINNEAPOLIS, MN 55402-4140
(612) 672-8200
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM
OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE (1) REGISTRATION FEE
- ------------------- ------------ ---------------- ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock (no 137,500 $33.375 $4,589,062.50 $1,390.63
par value per share) shares
</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 National Market System on November 1,
1996.
Exhibit Index at Page 8
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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 registrant 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 S-1 No. 333-10891,
filed on August 27, 1996, as amended.
(b) The contents of the Registrant's Form 10-K for the fiscal year ended
December 31, 1995.
(c) The contents of the Registrant's Form 10-Q for the first quarter ended
March 31, 1996 and the second quarter ended June 30, 1996.
(d) The description of Common Stock included under the caption "Securities
to be Registered" in its Registration Statement on Form 8-A, dated
December 7, 1995, including any amendments or reports filed for the
purpose of updating such description.
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 part
hereof from the date of filing of such documents.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Common Stock being registered will be passed
upon for the Company by Maslon Edelman Borman & Brand, a Professional Limited
Liability Partnership ("Maslon"), Minneapolis, Minnesota. Neil I. Sell, a
partner of Maslon, is deemed to be the beneficial owner of 500,000 shares of
Common Stock as sole trustee of irrevocable trusts for the benefit of Lyle
Berman's children. Mr. Sell has disclaimed beneficial ownership of all shares
beneficially owned as trustee.
Item 8. Exhibits.
4A. Articles of Incorporation of the registrant (incorporated herein
by reference to the registrant's Registration Statement on Form
SB-2 (Registration No. 33-89256C))
4B. Bylaws of the Company (incorporated herein by reference to the
Company's Registration Statement on Form SB-2 (Registration No.
33-89256C)).
5. Opinion of Maslon Edelman Borman & Brand, P.L.L.P.
23.1 Consent of Lund Koehler Cox & Company, PLLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Maslon Edelman Borman & Brand, P.L.L.P. (contained in
Exhibit 5).
24. Power of Attorney (included on Page 6).
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Item 6.Undertakings.
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 of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby undertakes 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 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit
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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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Minneapolis, State of Minnesota, on November 1, 1996.
RAINFOREST CAFE, INC.
Registrant
By /S/ Martin J. O'Dowd
---------------------------
Martin J. O'Dowd
President (Chief Operating Officer)
POWER OF ATTORNEY
We, the undersigned officers and directors of Rainforest Cafe, Inc.,
hereby severally constitute Martin J. O'Dowd, our true and lawful attorney with
full power to him, to sign for us and in our names, in the capacities indicated
below the registration statement filed herewith and any amendments to said
registration statement, and generally to do all such things in our name and
behalf in our capacities as officers and directors to enable Rainforest Cafe,
Inc. to comply with the provisions of the Securities Act of 1933 as amended,
and all requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our said
attorneys, or any of them, to said registration statement and any and all
amendments thereto.
Pursuant to the requirements of the Securities Exchange Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
- ------------------------- ------------------------------------- ----------------
<S> <C> <C>
/s/ Lyle Berman Chairman of the Board, Chief November 1, 1996
- ------------------------- Executive Officer and Director
Lyle Berman
/s/ Martin J. O'Dowd President (Principal November 1, 1996
- ------------------------- Executive Officer)and
Martin J. O'Dowd Director
/s/ Steven W. Schussler Executive Vice President and Director November 1, 1996
- -------------------------
Steven W. Schussler
/s/ Ercu Ucan Executive Vice President and Director November 1, 1996
- -------------------------
Ercu Ucan
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ David L. Rogers Director November 1, 1996
- -------------------------
David L. Rogers
/s/ Joel N. Waller Director November 1, 1996
- -------------------------
Joel N. Waller
/s/ David W. Anderson Director November 1, 1996
- -------------------------
David W. Anderson
/s/ Kenneth W. Brimmer Director November 1, 1996
- -------------------------
Kenneth W. Brimmer
/s/ Mark S. Robinow Chief Financial Officer November 1, 1996
- ------------------------- (Principal Financial Officer)
Mark S. Robinow
</TABLE>
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EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Description of Exhibit Page No.
- -------------- -------------------------- --------
<S> <C> <C>
5. Opinion of Maslon Edelman Borman & Brand, P.L.L.P. 9
23.1 Consent of Lund Koehler Cox & Company, PLLP 10
23.2 Consent of Arthur Andersen LLP 11
23.3 Consent of Maslon Edelman Borman & Brand, P.L.L.P. (contained in Exhibit 5). 9
24. Power of Attorney (included on Signature page). 6
</TABLE>
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EXHIBIT 5
November 1, 1996
Rainforest Cafe, Inc.
720 South Fifth Street
Hopkins, Minnesota 55343
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted on behalf of Rainforest Cafe, 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 137,500 shares of Common Stock, no par value (the "Shares") to be issued by
the Company pursuant to certain Director Stock Option Agreements (the
"Agreements"). 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,
and when delivered against payment therefor in the manner contemplated by the
Agreements, 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,
/s/ Maslon Edelman Borman & Brand
Maslon Edelman Borman & Brand,
a Professional Limited Liability
Partnership
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference of our report dated February 17, 1996 included in the Company's
Form 10-K for the year ended December 31, 1995 and to all references to our
Firm included in or made part of this Registration Statement.
LUND KOEHLER COX & COMPANY, PLLP
Minneapolis, Minnesota
November 1, 1996
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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 9,
1996 included in Rainforest Cafe, Inc.'s Form 10-K for the year ended December
31, 1995 and to all references to our Firm included in this Registration
Statement.
ARTHUR ANDERSEN LLP
Minneapolis, Minnesota
November 1, 1996
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