AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 23, 2002
REGISTRATION NO. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FAMOUS DAVE'S OF AMERICA, INC.
(Exact name of Registrant as specified in its charter)
MINNESOTA
(State or other jurisdiction of incorporation)
41-1782300
(IRS Employer Identification No.)
7657 ANAGRAM DRIVE
EDEN PRAIRIE, MN 55344
(Address of principal executive offices)
1997 EMPLOYEE STOCK OPTION PLAN
(Full title of Plan)
MARTIN J. O'DOWD
FAMOUS DAVE'S OF AMERICA, INC.
7657 ANAGRAM DRIVE
EDEN PRAIRIE, MN 55344
(Name and address of agent for service)
(952) 294-1300
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
WILLIAM M. MOWER, P.A.
ALAN M. GILBERT, ESQ.
MASLON EDELMAN BORMAN & BRAND, LLP
3300 WELLS FARGO CENTER
90 SOUTH 7TH STREET
MINNEAPOLIS, MN 55402-4140
(612) 672-8200
CALCULATION OF REGISTRATION FEE
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED (1) PER SHARE (1) OFFERING PRICE (1) FEE
- -------------------------------------------------------------------------------------------------------------------
Common Stock ($0.01 450,000 $7.57 $3,406,500 $313.40
par value per share)
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(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 NASDAQ on May 20, 2002.
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 Registrant's Registration Statement on Form S-8 (SEC File No.
333-49939) filed on April 10, 1998;
(b) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 30, 2001 and filed on March 20, 2002;
(c) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2002 and filed on May 8, 2002; and
(d) The description of the Registrant's common stock included under
the caption "Securities to be Registered" in its Registration
Statement on Form 8-A, dated October 25, 1996, 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 Securities Exchange Act of 1934, 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 OFFICERS AND DIRECTORS.
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 attorneys' 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.
4.1 1997 Employee Stock Option Plan, as amended through May 22,
2002.
5. Opinion of Maslon Edelman Borman & Brand, LLP.
23.1 Consent of Virchow, Krause & Company, LLP.
23.2 Consent of Maslon Edelman Borman & Brand, LLP (contained in
Exhibit 5).
24. Power of Attorney (contained on page II-3).
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
3
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.
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 Eden Prairie, State of Minnesota, on May 22, 2002.
FAMOUS DAVE'S OF AMERICA, INC.
By: /s/ Martin J. O'Dowd
------------------------------------
Martin J. O'Dowd
Chief Executive Officer, President
and Secretary
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POWER OF ATTORNEY
We, the undersigned officers and directors of Famous Dave's of America,
Inc. hereby severally constitute Martin J. O'Dowd, Kenneth Stanecki and William
M. Mower and each of them singly, our true and lawful attorneys with full power
to them, and each of them singly, 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
Famous Dave's of America, 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.
SIGNATURE TITLE DATE
/s/ David W. Anderson Chairman of the Board May 22, 2002
- -----------------------------
David W. Anderson
President, Chief Executive Officer and
/s/ Martin J. O'Dowd Secretary May 22, 2002
- ---------------------------- (Principal Executive Officer)
Martin J. O'Dowd
Chief Financial Officer
/s/ Kenneth Stanecki (Principal Financial and Accounting May 22, 2002
- ----------------------------- Officer)
Kenneth Stanecki
/s/ Thomas J. Brosig Director May 22, 2002
- ---------------------------
Thomas J. Brosig
Director May 22, 2002
- -------------------------
James W. Cox
/s/ K. Jeffrey Dahlberg Director May 22, 2002
- ----------------------------
K. Jeffrey Dahlberg
/s/ Richard L. Monfort Director May 22, 2002
- ---------------------------
Richard L. Monfort
EXHIBITS
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
4.1 1997 Employee Stock Option Plan, as amended through May 22,
2002.
5 Opinion of Maslon Edelman Borman & Brand, LLP
23.1 Consent of Virchow, Krause & Company, LLP
6