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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 14, 1997
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.)
520 SOUTH FIFTH STREET
HOPKINS, MINNESOTA 55343
(Address of principal executive offices)
1995 EMPLOYEE STOCK OPTION AND COMPENSATION PLAN
(Full title of Plan)
KENNETH W. BRIMMER
RAINFOREST CAFE, INC.
520 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 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 1,000,000 $ 34.13 $ 34,125,000.00 $ 11,767.24
par value per share) additional 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
October 7, 1997.
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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 Registration Statement on Form S-8 No. 333-07505, filed
on July 3, 1996.
(b) The contents of the Registrant's Form 10-K for the fiscal year ended
December 29, 1996.
(c) The contents of the Registrant's Form 10-Q for the first quarter ended
March 30, 1997 and the Registrant's Form 10-Q for the second quarter ended June
29, 1997.
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 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.
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Item 8. Exhibits.
5. Opinion of Maslon Edelman Borman & Brand, a Professional Limited
Liability Partnership
23(1). Consent of Arthur Andersen LLP
23(2). Consent of Maslon Edelman Borman & Brand, a Professional Limited
Liability Partnership (contained in Exhibit 5).
24. Power of Attorney (included on Page 5).
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.
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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.
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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 October 10, 1997.
RAINFOREST CAFE, INC.
Registrant
By s/ Kenneth W. Brimmer
------------------------
President
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POWER OF ATTORNEY
We, the undersigned officers and directors of Rainforest Cafe, Inc.,
hereby severally constitute Mark S. Robinow, 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 October 10, 1997
- ------------------------- Executive Officer (principal executive
Lyle Berman officer)
s/ Kenneth W. Brimmer President, Secretary and Director October 10, 1997
- -------------------------
Kenneth W. Brimmer
s/ David L. Rogers Director October 10, 1997
- -------------------------
David L. Rogers
s/ Joel N. Waller Director October 10, 1997
- -------------------------
Joel N. Waller
s/ Steven W. Schussler Director October 10, 1997
- -------------------------
Steven W. Schussler
s/ Ercu Ucan Director October 10, 1997
- -------------------------
Ercu Ucan
s/ Mark S. Robinow Chief Financial Officer October 10, 1997
- ------------------------- (principal accounting officer)
Mark S. Robinow
</TABLE>
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EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Description of Exhibit Page No.
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<S> <C> <C>
5. Opinion of Maslon Edelman Borman & Brand, a Professional Limited
Liability Partnership 8
23(1) Consent of Arthur Andersen LLP 9
23(2) Consent of Maslon Edelman Borman & Brand, a Professional Limited
Liability Partnership (contained in Exhibit 5). 8
24. Power of Attorney (included on Page 5). 6
</TABLE>
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Exhibit 5
October 10, 1997
Rainforest Cafe, Inc.
520 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 the increase of 1,000,000 shares of Common Stock, no par value (the
"Shares") to be issued by the Company pursuant to the terms of the Company's
1995 Stock Option and Compensation Plan (the "Plan") bringing the total number
of shares authorized under the Plan to 2,500,000. 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, LLP
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Exhibit 23(1)
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 14, 1997
included in the Rainforest Cafe, Inc.'s Form 10-K for the year ended December
29, 1996 and to all references to our Firm included in this Registration
Statement.
S/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Minneapolis, Minnesota,
October 10, 1997
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