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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 20, 1998
REGISTRATION NO. 333-
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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)
1998 NON-EXECUTIVE STOCK OPTION PLAN
(Full title of Plan)
KENNETH W. BRIMMER
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, LLP
3300 NORWEST CENTER
MINNEAPOLIS, MN 55402-4140
(612) 672-8200
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================================
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock (no 1,000,000 shares $ 15.844 $ 15,844,000.00 $ 5,370.85
par value per share)
===============================================================================================================================
</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 May 19,
1998.
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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 Registrant's Form 10-K for the fiscal year ended
December 28, 1997.
(b) The contents of the Registrant's Form 10-Q for the first quarter ended
April 5, 1998.
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.
Item 8. Exhibits.
5. Opinion of Maslon Edelman Borman & Brand, LLP
23(1). Consent of Arthur Andersen LLP
23(2). Consent of Maslon Edelman Borman & Brand, LLP (contained in
Exhibit 5).
24. Power of Attorney (included on Page 5).
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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.
(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
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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 May 19, 1998.
RAINFOREST CAFE, INC.
Registrant
By s/ Kenneth W. Brimmer
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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.
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NAME TITLE DATE
<S> <C> <C>
s/ Lyle Berman Chairman of the Board, Chief May 19, 1998
- ------------------------------------ Executive Officer (principal executive
Lyle Berman officer)
s/ Kenneth W. Brimmer President, Secretary and Director May 19, 1998
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Kenneth W. Brimmer
s/ David L. Rogers Director May 19, 1998
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David L. Rogers
s/ Joel N. Waller Director May 19, 1998
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Joel N. Waller
s/ Steven W. Schussler Director May 19, 1998
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Steven W. Schussler
s/ Ercu Ucan Director May 19, 1998
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Ercu Ucan
s/ Mark S. Robinow Chief Financial Officer May 19, 1998
- ------------------------------------ (principal accounting officer)
Mark S. Robinow
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EXHIBITS
Exhibit Number Description of Exhibit Page No.
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5. Opinion of Maslon Edelman Borman & Brand, LLP 8
23.1 Consent of Arthur Andersen LLP 9
23.2 Consent of Maslon Edelman Borman & Brand, LLP
(contained in Exhibit 5). 8
24. Power of Attorney (included on Page 6). 6
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Exhibit 5
[MASLON, EDELMAN, BORMAN & BRAND LETTTERHEAD]
May 19, 1998
Rainforest Cafe, Inc.
720 South Fifth Street
Hopkins, MN 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 registration 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
1998 Non-Executive Stock Option 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, LLP
/S/ 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 13, 1998
incorporated by reference in Rainforest Cafe, Inc.'s Form 10-K for the year
ended December 28, 1997 and to all references to our Firm included in this
Registration Statement.
S/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Minneapolis, Minnesota,
May 19, 1998
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