AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION MAY 15, 1996
REGISTRATION NO. 333-4044
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
RAINFOREST CAFE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
MINNESOTA 41-1779527
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
720 South Fifth Street
Hopkins, Minnesota 55343
(612) 945-5400
(Address, including zip code, and telephone number, including area code, of
registrants' principal executive offices)
------------------------------------
MARTIN J. O'DOWD
PRESIDENT
RAINFOREST CAFE, INC.
720 SOUTH FIFTH STREET
HOPKINS, MINNESOTA 55343
(612) 945-5400
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
WITH COPIES TO:
NEIL I. SELL, ESQ.
DOUGLAS T. HOLOD, ESQ.
MASLON EDELMAN BORMAN & BRAND,
A PROFESSIONAL LIMITED LIABILITY PARTNERSHIP
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. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
--------------------------------------------
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.
- --------------------------------------------------------------------------------
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 MAY 15, 1996
RAINFOREST CAFE, INC.
150,000 SHARES OF COMMON STOCK
------------------------------------
All of the 150,000 warrant shares (the "Warrant Shares") of Common
Stock of Rainforest Cafe, Inc. (the "Company") issuable upon exercise of
warrants issued to certain underwriters in the Company's initial public offering
(the "Underwriters' Warrants" or "Warrants") are being sold by certain
shareholders of the Company (the "Selling Shareholders"). Each Underwriters'
Warrant entitles the holder to purchase one share of Common Stock, at a price of
$7.20 per Warrant, until April 7, 2000. The Company will receive approximately
$1,060,000 from the exercise of the Underwriters' Warrants. The Company will not
receive any of the proceeds for the sale of shares by the Selling Shareholders.
The Common Stock is listed on the Nasdaq National Market under the
symbol "RAIN." On May 13, 1996, the last sale price for the Common Stock as
reported on the Nasdaq National Market was $38.50.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 FOR A DESCRIPTION OF CERTAIN
FACTORS WHICH SHOULD BE CONSIDERED BY INVESTORS BEFORE PURCHASING THE SECURITIES
OFFERED HEREBY.
------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
------------------------------------
The date of this Prospectus is May __, 1996.
ADDITIONAL INFORMATION
This Prospectus is part of a Registration Statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") which the Company has filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the securities offered hereby. This Prospectus
does not contain all of the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules and regulations
of the Commission. For further information, reference is made to the
Registration Statement. Statements made in this Prospectus as to the contents of
any contract, agreement or other document referred to herein are not necessarily
complete. With respect to each such contract, agreement or other document filed
as an exhibit to the Registration Statement, reference is made to the exhibit
for a more complete description of the matter involved, and each such statement
shall be deemed qualified in its entirety by such reference.
The Company is subject to the informational reporting requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy and information statements and other
information with the Commission. Such reports, proxy and information statements
and other information as well as the Registration Statement and Exhibits of
which this Prospectus is a part filed by the Company may be inspected and copied
at the public reference facilities of the Commission, Room 1024, Judiciary
Plaza, 450 Fifth Street, N.W., Washington, DC 20549, as well as at the following
Regional Offices: 7 World Trade Center, 13th Floor, New York, New York 10048 and
500 West Madison Street--Suite 1400, Chicago, Illinois 60661. Copies of such
material can be obtained from the Commission by mail at prescribed rates.
Requests should be directed to the Commission's Public Reference Section, Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, DC 20549. Material
filed by the Company can also be inspected at the offices of the National
Association of Securities Dealers, Inc., 1735 K Street N.W., Washington, D.C.
20006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated in this Prospectus by reference and made a part hereof: (i) the
Company's Annual Report on Form 10-K for the fiscal year ended December 31,
1995; (ii) the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1996; and (iii) the description of the Company's Common Stock
included in its Registration Statement on Form S-1 (Registration No. 33-99836)
under the caption Description of Securities.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the date of this
Prospectus and prior to the termination of the offering described herein shall
be deemed to be incorporated by reference in this Prospectus from the respective
dates those documents are filed. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person to whom a copy
of this Prospectus has been delivered, on the written or oral request of such
person, a copy of any or all of the documents referred to above which have been,
or may be, incorporated in this Prospectus by reference, other than exhibits to
such documents. Request for such copies should be directed to Rainforest Cafe,
Inc., 720 South Fifth Street, Hopkins, Minnesota 55343, Attention: Mark S.
Robinow, Chief Financial Officer.
RECENT DEVELOPMENTS
On May 8, 1996, the Company announced that it finalized a lease to
develop and open a second Rainforest Cafe at the Walt Disney Resort near
Orlando, Florida. The unit, which will be located at the main entrance to Walt
Disney Resort's Animal Kingdom, is scheduled to open in spring 1988. The 35,000
sq. ft. unit is planned to have approximately 500 restaurant seats.
RISK FACTORS
Each prospective investor should carefully consider the following
factors, among others, prior to purchasing any of the securities offered hereby.
LACK OF SIGNIFICANT OPERATING HISTORY
The Company opened its first Rainforest Cafe (individually, a
"Rainforest Cafe" or "Unit") in the Mall of America in October 1994.
Accordingly, the Company's operations are subject to all of the risks inherent
in the establishment of a new business enterprise, including the lack of
significant operating history. Although the Company has had an operating profit
since the second quarter of 1995, there can be no assurance that future
operations will be profitable. Future revenues and profits, if any, will depend
upon various factors, including market acceptance of the Rainforest Cafe
concept, the quality of restaurant ("Restaurant") and retail area ("Retail
Area") operations, and general economic conditions. Unless otherwise stated, all
historical financial results for the Company are derived solely from the Mall of
America Unit which may not be indicative of other locations.
LIMITED BASE OF OPERATIONS
The Company currently operates only two Units and plans to open five
Units in 1996, five units in 1997 and at least one Unit in 1998. The combination
of the relatively small number of locations and the significant investment
associated with each new Unit may cause the operating results of the Company to
fluctuate significantly and adversely affect the profitability of the Company.
Due to this relatively small number of current and planned locations, poor
operating results at any one Unit or a delay in the planned opening of a Unit
could materially affect the profitability of the entire Company. Future growth
in revenues and profits will depend to a substantial extent on the Company's
ability to increase the number of its Units. Because of the substantial
financial requirements associated with opening new Units, the investment risk
related to any one Rainforest Cafe is much larger than that associated with most
other companies' restaurant or retail venues. Additionally, the Company's
history does not provide any basis for prediction as to whether individual Units
will tend to show increases or decreases in comparable Unit sales. Other
restaurant companies opening to similarly high per unit sales often do not show
significant comparable store sales increases.
GROWTH FACTORS/EXPANSION STRATEGY
Future growth will depend to a substantial extent on the Company's
ability to increase the number of its Units. The Company presently plans to open
five Units in 1996, five Units in 1997 and at least one Unit in 1998. The
Company's primary strategy is to develop new Rainforest Cafes in upscale
shopping malls, entertainment centers and Walt Disney theme parks. Because of
the relatively large size of each Rainforest Cafe and the Company's site
selection criteria, the availability of desirable locations may be limited and
the Company may be hindered in finding suitable locations for the development of
new Units. Additionally, the Company's ability to open additional Units will
depend upon a number of other factors including the ability of the Company to
negotiate leases on acceptable terms, timely approval of local regulatory
authorities, acceptance of the Rainforest Cafe concept in new markets, and the
general state of the economy.
The capital resources required to develop each new Unit are
significant. The Company estimates that the costs of developing and opening most
of its future Units will range from $4.0 million to $5.0 million, net of
anticipated landlord contributions. The Company expects that it will incur
approximately $600,000 in pre-opening costs and purchase approximately $400,000
of inventory in connection with the opening of future Units. The Company also
expects to open selected larger Units, such as its planned Units at Walt Disney
World and the Trump Taj Mahal Casino and Hotel, which may cost significantly
more. The Company believes that the net proceeds of this offering, combined with
cash on hand and cash generated from future operations, will provide the Company
with the financing required to develop five Units in 1996, five Units in 1997
and at least one Unit in 1998. The Company may require additional equity or debt
financing to continue expansion beyond 1997.
The Company's ability to open and successfully operate additional Units
will also depend upon the hiring and training of skilled Unit management
personnel and the general ability to successfully manage growth, including
monitoring Units and controlling costs, food quality and customer service. The
Company anticipates that the opening of additional Units will give rise to
additional expenses associated with managing operations located in multiple
markets. Accordingly, there can be no assurance that the Company will be able to
open new Units or that, if opened, those Units can be operated profitably.
LIMITED TRADING HISTORY OF COMMON STOCK; STOCK PRICE VOLATILITY
The Company's Common Stock has been traded since its initial public
offering in April 1995 and the market price of its Common Stock has risen
substantially since that time. The market price of the Common Stock could
fluctuate substantially due to a variety of factors, including market perception
of the Company's ability to achieve successfully its planned rapid growth,
quarterly operating results of the Company or other restaurant and retail
companies, the trading volume in the Company's Common Stock, changes in general
conditions in the economy, the financial markets or the restaurant or retail
industries, or other developments affecting the Company or its competitors. In
addition, the stock market is subject to extreme price and volume fluctuations.
This volatility has had a significant effect on the market prices of securities
issued by many companies for reasons unrelated to the operating performance of
these companies.
DEPENDENCE ON DISCRETIONARY CONSUMER SPENDING
The success of the Company's operations depends to a significant extent
on a number of factors relating to discretionary consumer spending, including
economic conditions affecting disposable consumer income, the overall success of
the malls, entertainment centers and Disney theme parks in which Units are
located and the continued popularity of theme restaurants generally and the
Company's rainforest concept in particular. Theme restaurants are more
susceptible to shifts in consumer preferences and frequently experience a
decline of revenue growth or of actual revenues as consumers tire of the related
theme.
COMPETITION
The restaurant and specialty retail businesses are highly competitive.
In the restaurant industry, competition is based primarily upon price, service,
food quality and location. There are numerous well-established competitors,
including national, regional and local restaurant chains, possessing
substantially greater financial, marketing, personnel and other resources than
the Company. The Company competes on a general basis with a large variety of
national and regional restaurant operations, as well as locally owned
restaurants, diners, and other establishments that offer moderately priced food.
The Company also competes with other theme restaurants in the highly competitive
and developing theme restaurant market. Other restaurants and companies could
utilize the rainforest or a related theme. The Company also competes with a
number of well-established specialty retailers possessing substantially greater
financial, marketing, personnel and other resources than the Company. In the
retail industry, competition is based primarily upon merchandise selection,
price and customer service. There can be no assurance that the Company will be
able to respond to various competitive factors affecting the restaurant and
retail industries.
The performance of individual Units may also be affected by factors
such as traffic patterns, demographic considerations, and the type, number and
location of competing restaurants. In addition, factors such as inflation,
increased food, labor and employee benefit costs, and the availability of
experienced management and hourly employees may also adversely affect the
restaurant and retail industries in general and the Company's Units in
particular. Restaurant and retail operating costs are further affected by
increases in the minimum hourly wage, unemployment tax rates and similar matters
over which the Company has no control.
UNCERTAIN TRADEMARK PROTECTION; PROPRIETARY MARKS
The Company's ability to successfully implement its Rainforest Cafe
concept will depend in part upon its ability to protect its trademarks. The
United States Patent and Trademark Office (the "PTO") has preliminarily
determined that the Company's marks incorporating "RAINFOREST CAFE" are likely
to be confused with another registered mark and has refused to register certain
of the Company's marks. The Company has responded in opposition to the PTO's
preliminary determination, but has not yet received a response from the PTO. In
the event the Company is denied registration, the Company may incur significant
expense in operating under its existing marks. In the event that the Company's
marks are granted registration, there is no assurance that such marks will be
enforceable against prior users in areas where the Company intends to conduct
operations. Furthermore, there is no assurance that the Company will be able to
prevent competitors from using the same or similar marks, concepts or
appearance.
LONG-TERM, NON-CANCELABLE LEASES
The Company has entered into ten year leases related to its existing
Mall of America and Woodfield Mall Units and its planned Units at Gurnee Mills,
Walt Disney World, Sawgrass Mills, Tysons Corner Center I, Trump Taj Mahal
Casino and Hotel, Stratosphere Tower, and Disney's Animal Kingdom. These leases
are non-cancelable by the Company (except in limited circumstances) and have
annual base rents ranging from $200,000 to $900,000 (except for the Trump Taj
Mahal Casino and Hotel, which has annual base rent of $2.5 million). Additional
facilities developed by the Company are likely to be subject to similar
long-term, non-cancelable leases. If an existing or future Unit does not perform
at a profitable level, and the decision is made to close the Unit, the Company
may nonetheless be committed to perform its obligations under the applicable
lease which would include, among other things, payment of the respective base
rent for the balance of the respective lease term. The leases related to the
Walt Disney World Units are cancelable by the landlord at any time upon sixty
days notice and payment of the Company's unamortized value of leasehold
improvements and an amount equal to the net operating income generated by such
Unit for the previous lease year. With regard to the Woodfield Mall and Tysons
Corner Center I leases, in the event the Company fails to achieve specified
gross sales by a certain date, the respective lease may be terminated by the
landlord. If such a termination were to occur at one of these locations, the
Company would lose a Unit without necessarily receiving an adequate return on
its investment.
GOVERNMENT REGULATION
The Company's business is subject to various federal, state and local
government regulations, including those relating to the sale of food and
alcoholic beverages. While the Company to date has not experienced an inability
to obtain or maintain any necessary governmental licenses, permits or approvals,
the failure to maintain food and liquor licenses could have a material adverse
effect on the Company's operating results. In addition, a facility's operating
costs are affected by increases in the minimum hourly wage, unemployment tax
rates, sales taxes and similar costs over which the Company has no control.
Since many of the Company's Restaurant and Retail Area personnel are paid at
rates based on the federal minimum wage, increases in the minimum wage will
result in an increase in the Company's labor costs. The Company is subject in
Minnesota and Illinois, and is likely to be subject in other states, to "dram
shop" statutes which generally provide a person injured by an intoxicated person
with the right to recover damages from an establishment that served alcoholic
beverages to the intoxicated person. Difficulties or failure in obtaining
required licenses and approvals will result in delays in, or cancellation of,
the opening of new Units. Although the Company has satisfied restaurant, liquor
and retail licensing for its existing Units, no assurance can be given that the
Company will be able to maintain existing approvals or obtain such further
approvals at other locations.
Businesses that maintain or sell animals are subject to additional
levels of state and local health and sanitation regulations. Having tropical
birds as part of the Rainforest Cafe concept requires the Company to adhere to
stringent health codes that prohibit crossover between kitchen workers and
animal handlers, and the exchange of air from the bird areas to the rest of the
Unit. The Company overcame this problem at the Mall of America and Woodfield
Mall Units by installing specially designed air exhaust hoods for the birds'
perch area. Additionally, a separate waste disposal system is provided for the
birds. Although, to date, the Company has satisfied animal-related licensing for
its Mall of America and Woodfield Mall Units, no assurance can be given that the
Company will be able to maintain such approvals or obtain similar approvals at
other locations. Difficulties or failure in obtaining required licenses and
approvals may increase the cost of, or result in delays in, or cancellation of,
the opening of Units.
The Federal Americans With Disabilities Act (the "Disabilities Act")
prohibits discrimination on the basis of disability in public accommodations and
employment. The Company could be required to expend funds to modify its Units in
order to provide service to or make reasonable accommodations for disabled
persons. The Company's Units are currently designed to be accessible to the
disabled. The Company believes it is in substantial compliance with all current
applicable regulations relating to accommodations for the disabled.
DEPENDENCE ON KEY PERSONNEL
The Company's future success will depend largely on the efforts and
abilities of the Company's senior corporate management, including Martin J.
O'Dowd, President and Chief Operating Officer, Steven W. Schussler, Executive
Vice President-Development, and Ercu Ucan, Executive Vice President-Retail. The
loss of the services of any of these individuals could have a substantial
adverse effect on the Company. Additionally, Lyle Berman, the Company's Chairman
and Chief Executive Officer, devotes less than 10% of his time to the Company's
business. The Company has not obtained life insurance policies on any of its
officers. The Company has employment agreements with Messrs. O'Dowd and
Schussler that provide, among other things, that they may terminate their
employment upon 30 days written notice to the Company's Board of Directors. The
success of the Company will also depend upon its ability to attract and retain a
highly qualified corporate and Unit level management team.
CONTROL BY EXISTING MANAGEMENT
The Company's officers and directors, together with trusts for certain
of their children, will own approximately 23% of the issued and outstanding
shares of the Common Stock of the Company. Accordingly, the Company's management
will be able to substantially control the Company's affairs, including, without
limitation, the sale of equity or debt securities of the Company, the
appointment of officers, and the determination of officers' salaries.
EFFECT OF CERTAIN ANTI-TAKEOVER PROVISIONS
The Company's authorized capital consists of 50,000,000 shares of
capital stock. The Board of Directors, without any action by the Company's
shareholders, is authorized to designate and issue shares in such classes or
series (including classes or series of preferred stock) as it deems appropriate
and to establish the rights, preferences and privileges of such shares,
including dividends, liquidation and voting rights. No class other than the
Common Stock is currently designated and there is no current plan to designate
or issue any such securities. The rights of holders of preferred stock and other
classes of common stock that may be issued may be superior to the rights granted
to the holders of the existing Common Stock. Further, the ability of the Board
of Directors to designate and issue such undesignated shares could impede or
deter an unsolicited tender offer or takeover proposal regarding the Company and
the issuance of additional shares having preferential rights could adversely
affect the voting power and other rights of holders of Common Stock.
Furthermore, as a Minnesota corporation, the Company is subject to various
Minnesota statutes which may hinder or delay a change in control of the Company
including: (i) a control share acquisition statute; (ii) a business combination
statute; (iii) a fair price statute; (iv) a greenmail statute; and (v) a
non-monetary factors statute.
SHARES ELIGIBLE FOR FUTURE SALE
As of the date of this Prospectus, the Company has 9,144,929 shares of
Common Stock outstanding, 2,737,225 shares of which are restricted securities
under Rule 144 of the Securities Act of 1933, as amended (the "Securities Act").
Following satisfaction of the two-year holding period required by Rule 144, or
in the event of registration of these shares under the Securities Act, sales of
shares of Common Stock under either Rule 144 or pursuant to a registration
statement could have an adverse effect on the price of the Common Stock.
Furthermore, 1,684,250 of such shares (including options to purchase 175,000
shares of the Company's Common Stock) are subject to an escrow agreement with
the State of Minnesota and may not be sold until the earlier of (i) April 7,
1998, (ii) the time the Company meets certain earnings requirements or (iii) the
time the State of Minnesota determines such escrow is no longer necessary.
USE OF PROCEEDS
The net proceeds to be received by the Company if all of the
Underwriters' Warrants are exercised in full is estimated to be approximately
$1,060,000. The net proceeds will be used for working capital and general
corporate purposes. The Company will not receive any proceeds from the sale of
the Warrant Shares by the Selling Shareholders.
SELLING SHAREHOLDERS
The following table sets forth the number of shares of the Common Stock
owned by each Selling Shareholder as of the date hereof and after giving effect
to this offering. No Selling Shareholder will have more than one percent of the
Company's Common Stock following this Offering. All Selling Shareholders are
officers, directors or employees of the Underwriters of the Company's initial
public offering of Common Stock. The Company will not receive any proceeds from
the sale of the Common Stock by the Selling Shareholders.
Amount of
Beneficial Shares Offered Beneficial
Ownership Prior to by Selling Ownership After
Name the Offering Shareholders the Offering
- ---- ------------ ------------ ------------
Laurence Zipkin 0 45,500 0
Nathan Newman 0 19,500 0
John E. Feltl 0 22,800 0
Richard Heise 0 21,300 0
Wayne Mills 0 16,020 0
David Lantz 0 1,500 0
Timothy Freidrichs 0 1,280 0
Dennis Hanish 0 825 0
John Ryden 0 825 0
Steven Barker 0 450 0
Marche Securities, Inc. 0 8,000 0
Constance Berman 0 6,000 0
Bernard Weber 0 6,000 0
--- -------- ---
0 150,000 0
=== ======== ===
PLAN OF DISTRIBUTION
The Underwriters' Warrants were originally issued and purchased in
April 1995 in connection with the Company's initial public offering of its
Common Stock. Each Underwriters' Warrant entitles the holder to purchase one
share of Common Stock, at a price of $7.20 per share, until April 7, 2000. This
Registration Statement is being filed by, and at the expense of, the Company
pursuant to obligations contained in the Underwriters' Warrants. The Company
agreed to file a registration statement under the Securities Act covering the
shares of Common Stock underlying the Underwriters' Warrants promptly from the
date the Company received a written request from the majority of the holders of
the Underwriters' Warrants and agreed to use its best efforts to cause such
registration statement to be declared effective as soon as practicable
thereafter, and to use its best efforts to keep such registration statement
effective. The Company received such written notice from the holders of all of
the Underwriters' Warrants on April 8, 1996.
The Selling Shareholders and/or their pledges, donees, transferees or
other successors in interest will sell the securities of the Company covered by
this Prospectus to the public on the over-the-counter market or in negotiated
transactions, or otherwise, at prices and on terms then obtainable.
Broker-dealers either may act as agents for the Selling Shareholders and/or
their pledgees, donees, transferees or other successors in interest for such
commissions as may be agreed upon at the time, or may purchase any of the
securities covered thereby as principals and thereafter may sell such securities
from time to time in the over-the-counter market or in negotiated transactions,
or otherwise, at prices and on terms then obtainable.
LEGAL MATTERS
Certain legal matters in connection with the validity of the securities
offered hereby will be passed upon for the Company by Maslon Edelman Borman &
Brand, a Professional Limited Liability Partnership, Minneapolis, Minnesota.
EXPERTS
The financial statements of Rainforest Cafe, Inc. as of December 31,
1995 and for the year then-ended incorporated by reference in this Prospectus
and elsewhere in the Registration Statement have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their report with respect
thereto incorporated by reference herein in reliance upon the authority of said
firm as experts in giving said report.
The financial statements as of January 1, 1995 and for the period from
February 3, 1994 (inception) through January 1, 1995 are incorporated by
reference in this Prospectus and elsewhere in the Registration Statement in
reliance upon the report of Lund Koehler Cos & Company PLLP, independent public
accountants, incorporated by reference herein and upon the authority of said
form as experts in given said report.
On November 10, 1995, the Company, with the approval of its Board of
Directors and Audit Committee, engaged Arthur Andersen LLP as the independent
public accountants for Rainforest Cafe. Prior to the engagement of Arthur
Andersen LLP, Lund Koehler Cox & Company, PLLP had served as the principal
independent public accountants for the Company. The report prepared by Lund
Koehler Cox & Company, PLLP as of January 1, 1995 and for the periods February
3, 1994 (Inception) through October 2, 1994 and January 1, 1995 contained no
adverse opinion or disclaimer of opinion and was not qualified or modified as to
uncertainty of audit scope or accounting principles. In connection with the
audits as of January 1, 1995, and through November 10, 1995, there have been no
disagreements with Lund Koehler Cox & Company, PLLP on any matter of accounting
principles or practices, financial statement disclosure or auditing scope or
procedure, which disagreements, if not resolved to the satisfaction of Lund
Koehler Cox & Company, PLLP, would have caused Lund Koehler Cox & Company, PLLP
to make reference to the subject matter of the disagreements in its reports.
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFERING MADE HEREBY, AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL,
OR SOLICITATION OF AN OFFER TO BUY, ANY SECURITIES OFFERED HEREBY TO ANY PERSON
IN ANY JURISDICTION WHERE SUCH AN OFFER OR SOLICITATION WOULD BE UNLAWFUL.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN
IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF.
TABLE OF CONTENTS PAGE
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ADDITIONAL INFORMATION............................................. 2
INCORPORATION OF CERTAIN DOCUMENTS
BY REFERENCE.............................................. 2
RECENT DEVELOPMENTS................................................ 3
RISK FACTORS....................................................... 4
USE OF PROCEEDS................................................... 10
SELLING SHAREHOLDERS.............................................. 11
PLAN OF DISTRIBUTION.............................................. 12
LEGAL MATTERS..................................................... 12
EXPERTS ......................................................... 12
RAINFOREST CAFE, INC.
150,000 SHARES
OF
COMMON STOCK
---------------------
PROSPECTUS
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MAY , 1996
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, other than underwriting discounts and fees,
are set forth in the following table:
Securities and Exchange $ 1,862.07
Commission
Registration Fee
Accounting Fees 2,500.00
Legal Fees and Expenses 15,000.00
Miscellaneous 637.93
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Total $ 20,000.00
============
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
Underwriting Agreement contains provisions under which the Company, on the one
hand, and the Underwriters, on the other hand, have agreed to indemnify each
other (including officers and directors of the Company and the Underwriters, and
any person who may be deemed to control the Company or the Underwriters) against
certain liabilities, including liabilities under the Securities Act of 1933, as
amended.
ITEM 16. EXHIBITS.
EXHIBIT DESCRIPTION OF DOCUMENT
5 Opinion of Maslon Edelman Borman & Brand, a Professional
Limited Liability Partnership.*
23(1) Consent of Lund Koehler Cox & Co., PLLP.*
23(2) Consent of Arthur Andersen LLP.*
23(3) Consent of Maslon Edelman Borman & Brand, a Professional
Limited Liability Partnership (included in Exhibit 5).*
24 Power of Attorney (included on pages II-3 and II-4).*
- -------------------
*Previously filed
ITEM 17. UNDERTAKINGS.
(a) 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; 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 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; and
(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.
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 Minneapolis,
State of Minnesota, on May 14, 1996.
RAINFOREST CAFE, INC.
Registrant
By: /s/ Mark S. Robinow
Name: Mark S. Robinow
Title: Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on the 14th day of May, 1996 by the
following persons in the capacities indicated:
SIGNATURE TITLE
* Chairman of the Board, Chief Executive
Lyle Berman Officer, and Secretary (principal executive
officer)
* Executive Vice President and Director
Steven W. Schussler
* President, Chief Operating Officer and
Martin J. O'Dowd Director
* Executive Vice President and Director
Ercu Ucan
* Director
David W. Anderson
* Director
David L. Rogers
* Director
Joel N. Waller
/s/ Mark S. Robinow Chief Financial Officer (principal financial
Mark S. Robinow officer and principal accounting officer)
* By /s/ Mark S. Robinow
Mark S. Robinow, Power of Attorney
