AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 3, 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)
1996 EMPLOYEE STOCK PURCHASE PLAN
(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.
SHAWN R. MCINTEE, ESQ.
MASLON EDELMAN BORMAN & BRAND,
A PROFESSIONAL LIMITED LIABILITY PARTNERSHIP
3300 NORWEST CENTER
MINNEAPOLIS, MN 55402-4140
(612) 672-8200
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM
OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED(1) PER SHARE (1)(2) OFFERING PRICE (2) REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (no 225,000 $33.00 $7,425,000.00 $2,560.34
par value per share) shares
</TABLE>
(1) The share amounts reflect a 3 for 2 stock split effective July 1, 1996.
(2) 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 July 1,
1996.
Exhibit Index at Page 8
Page 1 of 11
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 SB-2 No.
33-89256C, filed on February 8, 1995, 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.
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 4. DESCRIPTION OF SECURITIES.
There are no preemptive, subscription, conversion or redemption rights
pertaining to the Common Stock. The absence of preemptive rights could result in
a dilution of the interest of existing shareholders should additional shares of
Common Stock be issued. Holders of the Common Stock are entitled to receive such
dividends as may be declared by the registrant's Board of Directors out of
assets legally available therefore, and to share ratably in the assets of the
registrant available upon liquidation.
The Company's authorized capital stock consists of 50,000,000 undesignated
shares, no par value per share in the case of Common Stock, and a par value as
determined by the Board of Directors in the case of Preferred Stock.
Each share of Common Stock is entitled to one vote for all purposes.
Accordingly, the holders of more than fifty percent of all of the outstanding
shares of Common Stock can elect all of the directors. Significant corporate
transactions such as mergers, sales of assets and dissolution or liquidation
require approval by the affirmative vote of the majority of the outstanding
shares of Common Stock. Other matters to be vote upon by the holders of Common
Stock normally require the affirmative vote of a majority of the shares present
or represented by proxy at the particular shareholders' meeting. The Company's
directors and officers as a group beneficially own approximately 19.1% of the
outstanding Common Stock of the Company. Accordingly, such persons will continue
to 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, the determination of officers' compensation and the
determination whether to cause a registration statement to be filed.
The rights of holders of the shares of Common Stock may become subject in
the future to prior and superior rights and preferences in the event the
registrant's Board of Directors establishes one or more additional classes
Page 2 of 11
of Common Stock, or one or more additional series of Preferred Stock. The
registrant's Board of Directors has no present plan to establish any such
additional class or series.
The registrant is governed by the provisions of Sections 302A.671 and
302A.673 of the Minnesota Business Corporation Act. In general, Section 302A.671
provides that the shares of a corporation acquired in a "control share
acquisition" have no voting rights unless voting rights are approved in a
prescribed manner. A "control share acquisition" is an acquisition, directly or
indirectly, of beneficial ownership of shares that would, when added to all
other shares beneficially owned by the acquiring person, entitle the acquiring
person to have voting power of 20% or more in the election of directors. In
general, Section 302A.673 prohibits a publicly-held Minnesota corporation from
engaging in a "business combination" with an "interested shareholder" for a
period of four years after the date of the transaction in which the person
became an interested shareholder, unless the business combination is approved in
a prescribed manner. "Business combination" includes mergers, asset sales and
other transactions resulting in a financial benefit to the interested
shareholder. An "interested shareholder" is a person who is the beneficial
owner, directly or indirectly, of 10% or more of the corporation's voting stock
or who is an affiliate or associate of the corporation and at any time within
four years prior to the date in question was the beneficial owner, directly or
indirectly, of 10% or more of the corporation's voting stock.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The registrant 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Page 3 of 11
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).
ITEM 9. 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.
Page 4 of 11
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 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.
Page 5 of 11
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 July 2, 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 July 2, 1996
- ------------------------------------ Executive Officer and Director
Lyle Berman
s/ Martin J. O'Dowd President (Principal July 2, 1996
- ------------------------------------ Executive Officer)and
Martin J. O'Dowd Director
s/ Steven W. Schussler Executive Vice President and Director July 2, 1996
- ------------------------------------
Steven W. Schussler
s/ Ercu Ucan Executive Vice President and Director July 2, 1996
- ------------------------------------
Ercu Ucan
Page 6 of 11
s/ David L. Rogers Director July 2, 1996
- ------------------------------------
David L. Rogers
s/ Joel N. Waller Director July 2, 1996
- ------------------------------------
Joel N. Waller
s/ David W. Anderson Director July 2, 1996
- ------------------------------------
David W. Anderson
s/ Mark S. Robinow Chief Financial Officer July 2, 1996
Mark S. Robinow (Principal Financial Officer)
</TABLE>
Page 7 of 11
EXHIBITS
Exhibit Number Description of Exhibit Page No.
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
Page 8 of 11
Exhibit 5
July 3, 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 225,000 shares (as adjusted for a 3-for-2 stock split effected July 1, 1996)
of Common Stock, no par value (the "Shares") to be issued by the Company
pursuant to the terms of the Company's 1996 Employee Stock Purchase 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 Plan,
and when delivered against payment therefor in the manner contemplated by 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,
a Professional Limited Liability Partnership
Page 9 of 11
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, 1995 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
June 28, 1996
Page 10 of 11
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
July 3, 1996
Page 11 of 11
