Attached files
file | filename |
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EX-5.1 - EX-5.1 - Bravo Brio Restaurant Group, Inc. | l40038gexv5w1.htm |
EX-1.1 - EX-1.1 - Bravo Brio Restaurant Group, Inc. | l40038gexv1w1.htm |
EX-10.16 - EX-10.16 - Bravo Brio Restaurant Group, Inc. | l40038gexv10w16.htm |
As filed
with the Securities and Exchange Commission on October 18,
2010
Registration
No. 333-167951
SECURITIES AND EXCHANGE
COMMISSION
Washington, DC 20549
Amendment No. 5
to
Form S-1
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
Bravo Brio Restaurant Group,
Inc.
(Exact name of registrant as
specified in its charter)
Ohio
|
5812 | 34-1566328 | ||
(State or Other Jurisdiction
of Incorporation or Organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
777 Goodale Boulevard, Suite 100
Columbus, Ohio 43212
(614) 326-7944
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
Saed Mohseni
President and Chief Executive Officer
777 Goodale Boulevard, Suite 100
Columbus, Ohio 43212
(614) 326-7944
(Name, address including zip
code, and telephone number, including area code, of agent for
service)
With copies to:
Carmen J. Romano, Esq. | Marc D. Jaffe, Esq. | |
James A. Lebovitz, Esq. | Ian D. Schuman, Esq. | |
Dechert LLP | Latham & Watkins LLP | |
Cira Centre | 885 Third Avenue | |
2929 Arch Street | New York, New York 10022 | |
Philadelphia, Pennsylvania 19104 | (212) 906-1200 | |
(215) 994-4000 |
Approximate date of commencement of proposed sale to the
public: As soon as practicable after the
effective date of this Registration Statement.
If any of the securities being registered on this Form are being
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933 check the
following
box: o
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) 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. o
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. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) 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. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2 of the
Exchange Act. (Check one):
Large accelerated filer o | Accelerated filer o | Non-accelerated filer þ | Smaller reporting company o |
(Do not check if a smaller reporting company)
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 this Registration
Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
EXPLANATORY
NOTE
This Amendment No. 5 to the Registration Statement on
Form S-1 of Bravo Brio Restaurant Group, Inc. is filed
solely for the purpose of filing Exhibits 1.1, 5.1, 10.16 and 23.2 thereto.
solely for the purpose of filing Exhibits 1.1, 5.1, 10.16 and 23.2 thereto.
Part II
Information Not
Required In Prospectus
Item 13.
Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses, other
than the underwriting discount, payable by the registrant in
connection with the sale of the common stock being registered.
All amounts shown are estimates, other than the SEC registration
fee, the FINRA filing fee and the Nasdaq Global Market listing
fee.
SEC registration fee
|
$ | 12,300 | ||
FINRA filing fee
|
15,333 | |||
Nasdaq Global Market listing fee
|
25,000 | |||
Accounting fees and expenses
|
750,000 | |||
Legal fees and expenses
|
1,500,000 | |||
Printing and engraving expenses
|
125,000 | |||
Registration and transfer agent fees
|
3,500 | |||
Blue sky fees and expenses
|
15,000 | |||
Miscellaneous
|
303,867 | |||
Total
|
2,750,000 | |||
Item 14.
Indemnification of Directors and Officers.
Ohios Revised Code expressly authorizes and our Second
Amended and Restated Regulations will provide for
indemnification by us of any person who, because such person is
or was a director or officer of the Company was or is a party;
or is threatened to be made a party to:
| any threatened, pending or completed civil action, suit or proceeding; | |
| any threatened, pending or completed criminal action, suit or proceeding; |
| any threatened, pending or completed administrative action or proceeding; or |
| any threatened, pending or completed investigative action or proceeding. |
The indemnification will be for actual and reasonable expenses,
including attorneys fees, judgments, fines and amounts
paid in settlement by such person in connection with such
action, suit or proceeding, to the extent and under the
circumstances permitted by the Ohio Revised Code.
Section 1701.13(E)(7) of the Ohio Revised Code authorizes a
corporation to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of
the corporation against any liability asserted against and
incurred by such person in any such capacity, or arising out of
such persons status as such. We have obtained liability
insurance covering our directors and officers for claims
asserted against them or incurred by them in such capacity,
including claims brought under the Securities Act of 1933, as
amended, (the Securities Act).
Reference is made to the Form of Underwriting Agreement filed as
Exhibit 1.1 hereto for provisions providing that the
underwriters are obligated under certain circumstances to
indemnify our directors, officers and controlling persons
against certain liabilities under the Securities Act.
Reference is made to Item 17 for our undertakings with
respect to indemnification for liabilities arising under the
Securities Act.
II-1
Item 15.
Recent Sales of Unregistered Securities.
Except as set forth below, in the three years preceding the
filing of this registration statement, we have not issued any
securities that were not registered under the Securities Act.
The following does not give effect to the reorganization
transactions as defined in the prospectus that forms a part of
this registration statement.
During August 2007, we sold 38.25 shares of our
Series A 14.0% Cumulative Compounding Preferred Stock for
an aggregate offering price of $38,250 and 675 shares of
our common stock for an aggregate offering price of $6,750 to
certain of our employees, officers, directors and consultants.
The sale and issuance was deemed exempt from registration under
the Securities Act by virtue of Rule 701 promulgated
thereunder. In accordance with Rule 701, the shares were
issued pursuant to a written compensatory benefit plan and the
issuance did not, during any consecutive twelve month period,
exceed 15% of the outstanding shares of our common stock,
calculated in accordance with its provisions.
During November 2007, we sold 21.25 shares of our
Series A 14.0% Cumulative Compounding Preferred Stock for
an aggregate offering price of $21,250 and 375 shares of
our common stock for an aggregate offering price of $3,750 to
certain of our employees, officers, directors and consultants.
The sale and issuance was deemed exempt from registration under
the Securities Act by virtue of Rule 701 promulgated
thereunder. In accordance with Rule 701, the shares were
issued pursuant to a written compensatory benefit plan and the
issuance did not, during any consecutive twelve month period,
exceed 15% of the outstanding shares of our common stock,
calculated in accordance with its provisions.
During July 2008, we sold 85 shares of our Series A
14.0% Cumulative Compounding Preferred Stock for an aggregate
offering price of $85,000 and 1,500 shares of our common
stock for an aggregate offering price of $15,000 to certain of
our employees, officers, directors and consultants. The sale and
issuance was deemed exempt from registration under the
Securities Act by virtue of Rule 701 promulgated
thereunder. In accordance with Rule 701, the shares were
issued pursuant to a written compensatory benefit plan and the
issuance did not, during any consecutive twelve month period,
exceed 15% of the outstanding shares of our common stock,
calculated in accordance with its provisions.
During April 2009, we sold 111.125 shares of our
Series A 14.0% Cumulative Compounding Preferred Stock for
an aggregate offering price of $111,125 and 637.5 shares of
our common stock for an aggregate offering price of $3,187.50 to
certain of our employees, officers, directors and consultants.
The sale and issuance was deemed exempt from registration under
the Securities Act by virtue of Rule 701 promulgated
thereunder. In accordance with Rule 701, the shares were
issued pursuant to a written compensatory benefit plan and the
issuance did not, during any consecutive twelve month period,
exceed 15% of the outstanding shares of our common stock,
calculated in accordance with its provisions.
During May 2009, we sold 38 shares of our Series A
14.0% Cumulative Compounding Preferred Stock for an aggregate
offering price of $38,000 and 400 shares of our common
stock for an aggregate offering price of $2,000 to certain of
our employees, officers, directors and consultants. The sale and
issuance was deemed exempt from registration under the
Securities Act by virtue of Rule 701 promulgated
thereunder. In accordance with Rule 701, the shares were
issued pursuant to a written compensatory benefit plan and the
issuance did not, during any consecutive twelve month period,
exceed 15% of the outstanding shares of our common stock,
calculated in accordance with its provisions.
During September 2009, we sold 30 shares of our
Series A 14.0% Cumulative Compounding Preferred Stock for
an aggregate offering price of $30,000 to certain of our
employees, officers, directors and consultants. The sale and
issuance was deemed exempt from registration under the
Securities Act by virtue of Rule 701 promulgated
thereunder. In accordance with Rule 701, the shares were
issued pursuant to a written compensatory benefit plan and the
issuance did not, during any consecutive twelve month period,
exceed 15.0% of the outstanding shares of our common stock,
calculated in accordance with its provisions.
None of the foregoing transactions involved any underwriters,
underwriting discounts or commissions or any public offering.
The recipients of securities in such transactions represented
their intentions to acquire the securities for investment only
and not with a view to or for sale in connection with any
distribution thereof, and appropriate legends were affixed to
the share certificates and instruments issued in such
transactions. All recipients either
II-2
received adequate information about us or had adequate access,
through their relationship with us, to such information.
Item 16.
Exhibits and Financial Statement Schedules.
(a) Exhibits
Exhibit |
||||
Number
|
Document
|
|||
1 | .1 | Form of Underwriting Agreement. | ||
3 | .1* | Form of Second Amended and Restated Articles of Incorporation of Bravo Brio Restaurant Group, Inc. | ||
3 | .2* | Form of Second Amended and Restated Regulations of Bravo Brio Restaurant Group, Inc. | ||
4 | .1* | Form of Common Stock Certificate. | ||
5 | .1 | Opinion of Vorys, Sater, Seymour and Pease LLP. | ||
10 | .1* | Note Purchase Agreement, dated as of June 29, 2006, by and among Bravo Development, Inc., as borrower, Bravo Development Holdings, LLC and the domestic subsidiaries of the borrower from time to time parties thereto, as guarantors, the Purchasers Party thereto, as purchasers, and Golub Capital Incorporated, as administrative agent. | ||
10 | .2* | First Amendment to Note Purchase Agreement, dated as of March 17, 2008, by and among Bravo Development, Inc., Bravo Development Holdings, LLC, the Guarantors, the Purchasers and Golub Capital Incorporated, as administrative agent. | ||
10 | .3* | New Investors Securities Holders Agreement, dated as of June 29, 2006, by and among Bravo Development, Inc., Bravo Development Holding LLC and the other investors and parties named therein. | ||
10 | .4* | Securities Holders Agreement, dated as of June 29, 2006, by and among Bravo Development, Inc., Bravo Development Holdings LLC, Alton F. Doody, III, John C. Doody and the other investors and parties named therein. | ||
10 | .5* | Registration Rights Agreement, dated as of June 29, 2006, by and among Bravo Development, Inc., Bravo Development Holdings LLC and the other investors named therein. | ||
10 | .6* | Management Agreement, dated as of June 29, 2006, by and among Bruckmann Rosser, Sherrill & Co., Inc., Castle Harlan, Inc. and Bravo Development, Inc. | ||
10 | .7* | Management Agreement, dated as of June 29, 2006, by and among Castle Harlan, Inc., Bruckmann Rosser, Sherrill & Co., Inc. and Bravo Development, Inc. | ||
10 | .8* | Employment Agreement, effective January 12, 2007, by and between Bravo Development, Inc. and Saed Mohseni. | ||
10 | .9* | Form of Employment Agreement by and between Bravo Brio Restaurant Group, Inc. and James J. OConnor. | ||
10 | .10* | Bravo Development, Inc. 2006 Stock Option Plan. | ||
10 | .11* | Amendment No. 1 to the Bravo Development, Inc. 2006 Stock Option Plan. | ||
10 | .12* | Form of Option Award Letter under the Bravo Development, Inc. 2006 Stock Option Plan. | ||
10 | .13* | Form of Bravo Brio Restaurant Group, Inc. Stock Incentive Plan. | ||
10 | .14* | Form of Non-Qualified Option Award Letter under the Bravo Brio Restaurant Group, Inc. Stock Incentive Plan. | ||
10 | .15* | Form of Restricted Stock Award Letter under the Bravo Brio Restaurant Group, Inc. Stock Incentive Plan. | ||
10 |
.16 |
Form of Exchange Agreement by and among Bravo Brio Restaurant Group, Inc., Bravo Development Holdings LLC and all other shareholders of Bravo Brio Restaurant Group, Inc. listed on the signature pages thereto. | ||
10 | .17* | Form of Plan of Reorganization by and between Bravo Brio Restaurant Group, Inc. and Bravo Development Holdings LLC. | ||
10 |
.18* ** |
Bravo! Development, Inc. Foodservice Distribution Agreement, dated as of June 18, 2006, by and between Bravo Development, Inc. and Distribution Market Advantage, Inc. |
II-3
Exhibit |
||||
Number
|
Document
|
|||
10 | .19* | Commitment Letter, dated as of October 4, 2010, by and among Bravo Brio Restaurant Group, Inc., Wells Fargo Bank, National Association, Bank of America, N.A., Wells Fargo Securities, LLC and Banc of America Securities LLC. | ||
21 | .1* | Subsidiaries of Bravo Brio Restaurant Group, Inc. | ||
23 | .1* | Consent of Deloitte & Touche LLP. | ||
23 | .2 | Consent of Vorys, Sater, Seymour and Pease LLP (included in Exhibit 5.1). | ||
23 | .3* | Consent of James S. Gulmi. | ||
23 | .4* | Consent of Fortunato N. Valenti. | ||
24 | .1* | Powers of Attorney. | ||
99 | .1* | Consent of Technomic, Inc. |
* | Previously filed. | |
** | Certain information in this exhibit has been omitted and filed separately with the SEC. Confidential treatment has been requested with respect to the omitted portions. |
(b) Financial Statement Schedule
See the Index to Financial Statements included on
page F-1
for a list of the financial statements included in this
registration statement.
All schedules not identified above have been omitted because
they are not required, are not applicable or the information is
included in the selected consolidated financial data or notes
contained in this registration statement.
Item 17.
Undertakings.
a. The undersigned registrant hereby undertakes to provide
to the underwriters at the closing specified in the underwriting
agreements, certificates in such denominations and registered in
such names as required by the underwriters to permit prompt
delivery to each purchaser.
b. Insofar as indemnification for liabilities arising under
the Securities Act 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
Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
c. The undersigned registrant hereby undertakes that:
1. For purposes of determining any liability under the
Securities Act, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as
of the time it was declared effective.
2. For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of prospectus 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.
II-4
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 Columbus, State of Ohio, on
October 18, 2010.
Bravo Brio Restaurant Group, Inc.
By: |
/s/ Saed
Mohseni
|
Saed Mohseni
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities indicated on the
18th day
of October, 2010.
Signature
|
Title
|
|||
/s/ Saed
Mohseni Saed Mohseni |
President, Chief Executive Officer and Director (Principal Executive Officer) | |||
/s/ James
J. OConnor James J. OConnor |
Chief Financial Officer, Treasurer and Secretary (Principal
Financial and Accounting Officer) |
|||
* Alton F. Doody, III |
Director | |||
* Harold O. Rosser II |
Director | |||
* David B. Pittaway |
Director | |||
* Michael J. Hislop |
Director | |||
* Allen J. Bernstein |
Director |
*By |
/s/ James
J. OConnor
|
Name: James J. OConnor
Title: Attorney-in-fact
II-5
Exhibit Index
Exhibit |
||||
Number
|
Document
|
|||
1 | .1 | Form of Underwriting Agreement. | ||
3 | .1* | Form of Second Amended and Restated Articles of Incorporation of Bravo Brio Restaurant Group, Inc. | ||
3 | .2* | Form of Second Amended and Restated Regulations of Bravo Brio Restaurant Group, Inc. | ||
4 | .1* | Form of Common Stock Certificate. | ||
5 | .1 | Opinion of Vorys, Sater, Seymour and Pease LLP. | ||
10 | .1* | Note Purchase Agreement, dated as of June 29, 2006, by and among Bravo Development, Inc., as borrower, Bravo Development Holdings, LLC and the domestic subsidiaries of the borrower from time to time parties thereto, as guarantors, the Purchasers Party thereto, as purchasers, and Golub Capital Incorporated, as administrative agent. | ||
10 | .2* | First Amendment to Note Purchase Agreement, dated as of March 17, 2008, by and among Bravo Development, Inc., Bravo Development Holdings, LLC, the Guarantors, the Purchasers and Golub Capital Incorporated, as administrative agent. | ||
10 | .3* | New Investors Securities Holders Agreement, dated as of June 29, 2006, by and among Bravo Development, Inc., Bravo Development Holding LLC and the other investors and parties named therein. | ||
10 | .4* | Securities Holders Agreement, dated as of June 29, 2006, by and among Bravo Development, Inc., Bravo Development Holdings LLC, Alton F. Doody, III, John C. Doody and the other investors and parties named therein. | ||
10 | .5* | Registration Rights Agreement, dated as of June 29, 2006, by and among Bravo Development, Inc., Bravo Development Holdings LLC and the other investors named therein. | ||
10 | .6* | Management Agreement, dated as of June 29, 2006, by and among Bruckmann Rosser, Sherrill & Co., Inc., Castle Harlan, Inc. and Bravo Development, Inc. | ||
10 | .7* | Management Agreement, dated as of June 29, 2006, by and among Castle Harlan, Inc., Bruckmann Rosser, Sherrill & Co., Inc. and Bravo Development, Inc. | ||
10 | .8* | Employment Agreement, effective January 12, 2007, by and between Bravo Development, Inc. and Saed Mohseni. | ||
10 | .9* | Form of Employment Agreement by and between Bravo Brio Restaurant Group, Inc. and James J. OConnor. | ||
10 | .10* | Bravo Development, Inc. 2006 Stock Option Plan. | ||
10 | .11* | Amendment No. 1 to the Bravo Development, Inc. 2006 Stock Option Plan. | ||
10 | .12* | Form of Option Award Letter under the Bravo Development, Inc. 2006 Stock Option Plan. | ||
10 | .13* | Form of Bravo Brio Restaurant Group, Inc. Stock Incentive Plan. | ||
10 | .14* | Form of Non-Qualified Option Award Letter under the Bravo Brio Restaurant Group, Inc. Stock Incentive Plan. | ||
10 | .15* | Form of Restricted Stock Award Letter under the Bravo Brio Restaurant Group, Inc. Stock Incentive Plan. | ||
10 |
.16 |
Form of Exchange Agreement by and among Bravo Brio Restaurant Group, Inc., Bravo Development Holdings LLC and all other shareholders of Bravo Brio Restaurant Group, Inc. listed on the signature pages thereto. | ||
10 | .17* | Form of Plan of Reorganization by and between Bravo Brio Restaurant Group, Inc. and Bravo Development Holdings LLC. | ||
10 |
.18* ** |
Bravo! Development, Inc. Foodservice Distribution Agreement, dated as of June 18, 2006, by and between Bravo Development, Inc. and Distribution Market Advantage, Inc. | ||
10 | .19* | Commitment Letter, dated as of October 4, 2010, by and among Bravo Brio Restaurant Group, Inc., Wells Fargo Bank, National Association, Bank of America, N.A., Wells Fargo Securities, LLC and Banc of America Securities LLC. | ||
21 | .1* | Subsidiaries of Bravo Brio Restaurant Group, Inc. | ||
23 | .1* | Consent of Deloitte & Touche LLP. |
II-6
Exhibit |
||||
Number
|
Document
|
|||
23 | .2 | Consent of Vorys, Sater, Seymour and Pease LLP (included in Exhibit 5.1). | ||
23 | .3* | Consent of James S. Gulmi. | ||
23 | .4* | Consent of Fortunato N. Valenti. | ||
24 | .1* | Powers of Attorney. | ||
99 | .1* | Consent of Technomic, Inc. |
* | Previously filed. | |
** | Certain information in this exhibit has been omitted and filed separately with the SEC. Confidential treatment has been requested with respect to the omitted portions. |
II-7