As filed with the Securities and Exchange Commission on April 18, 2017
Registration No. 333-217220
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pre-Effective Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
FOGO DE CHAO,
INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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45-5353489
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(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification Number)
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14881 Quorum Drive Suite 750
Dallas, TX 75254
(972)
960-9533
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
Albert G. McGrath
General Counsel
14881
Quorum Drive Suite 750
Dallas, TX 75254
(972) 960-9533
(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
Copy to:
Richard D. Truesdell, Jr., Esq.
Davis Polk & Wardwell LLP
450 Lexington Avenue
New
York, NY 10017
(212) 450-4000
Approximate
date of commencement of proposed sale to the public
: From time to time after this Registration Statement becomes effective.
If the
only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
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. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective
amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.:
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒ (Do not check if a smaller reporting company)
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Smaller reporting company
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☐
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Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the
extended transition period for comply with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☒
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, as amended, or until this registration
statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to such Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. Neither we nor the
selling stockholders may sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Subject to Completion, Dated April 18, 2017
PROSPECTUS
$250,000,000
FOGO DE CHAO, INC.
Common Stock, Preferred Stock, Debt Securities,
Warrants, Purchase Contracts, Units
and
23,649,853 Shares of Common Stock for Resale by Selling Stockholders
We may offer from time to time common stock, preferred stock, debt securities, warrants, purchase contracts or units. We may sell any
combination of these securities in one or more offerings with an aggregate initial offering price of up to $250,000,000.
In addition,
certain selling stockholders to be identified in a prospectus supplement may offer and sell up to 23,649,853 shares of our common stock from time to time, in amounts, at prices and on terms that will be determined at the time the shares of our
common stock are offered. We urge you to read this prospectus and the accompanying prospectus supplement, which will describe the specific terms of these securities, carefully before you make your investment decision.
Our common stock is listed on the NASDAQ Global Select Market under the trading symbol “FOGO.”
We are an “emerging growth company” as the term is used in the Jumpstart Our Business Act of 2012 and are subject to reduced public
company reporting requirements.
The last reported sale price of our common stock on April 17, 2017 was $15.50 per share. You are
urged to obtain current market quotations for our common stock.
Investing in these securities involves certain risks. See
“
Risk Factors
” beginning on page 13 of our Annual Report on Form 10-K for the year ended January 1, 2017, which is incorporated by reference herein.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
This
prospectus may not be used to sell securities unless accompanied by a prospectus supplement.
The date of this prospectus
is , 2017
Neither we, the selling stockholders, respective affiliates nor any underwriters have authorized
anyone to provide any information other than that contained or incorporated by reference in this prospectus or in any free writing prospectus prepared by or on behalf of us or to which we or the selling stockholders have referred you. We, the
selling stockholders and/or respective affiliates, as applicable, take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We, the selling stockholders and/or respective
affiliates, as applicable, are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information contained in or incorporated by reference in this prospectus or any prospectus
supplement or in any such free writing prospectus is accurate as of any date other than their respective dates.
In this prospectus,
(i) references to “Fogo”, “we,” “us,” “our”, “the registrant” and “our company” refer, collectively, to Fogo de Chão, Inc., a Delaware corporation, incorporated in 2012, the
issuer of the securities offered hereby, and its consolidated subsidiaries and (ii) references to “selling stockholder” or “selling stockholders” include donees, pledgees, transferees or other successors-in-interest selling
shares of common stock received from the selling stockholders as a gift, pledge, partnership distribution or other transfer after the date of this prospectus.
TABLE OF CONTENTS
i
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”), utilizing
a “shelf” registration process. Under this shelf registration process, we may sell any combination of the securities described in this prospectus in one or more offerings with an initial aggregate offering price of up to $250,000,000. In
addition, under this shelf registration process, the selling stockholders may from time to time offer and sell up to an aggregate of 23,649,853 shares of our common stock in one or more offerings. This prospectus provides you with a general
description of the securities we may offer. Each time we and/or the selling stockholders, if applicable, sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus
supplement may also add, update or change information contained in this prospectus. To the extent there is a conflict between the information contained in this prospectus, on the one hand, and the information contained in any prospectus supplement,
on the other hand, you shall rely on the information in the prospectus supplement. You should read this prospectus, any prospectus supplement and any free writing prospectus together with additional information described under the sections
“Risk Factors” and “Where You Can Find More Information.”
We have filed or incorporated by reference exhibits to the
registration statement of which this prospectus forms a part. You should read the exhibits carefully for provisions that may be important to you.
1
FOGO DE CHAO, INC.
Fogo de Chão (fogo-dee-shoun) is a leading Brazilian steakhouse, or
churrascaria
, which has specialized for more than 37 years
in fire-roasting high-quality meats utilizing the centuries-old Southern Brazilian cooking technique of
churrasco
. We deliver a distinctive and authentic Brazilian dining experience through the combination of our high-quality Brazilian
cuisine and our differentiated service model known as
espeto corrido
(Portuguese for “continuous service”) delivered by our
churrasqueiros
, which we refer to as our
gaucho
chefs. We offer our guests a variety of menu
choices including our most popular offering, the Full
Churrasco
Experience, as well as
Gaucho
Lunch, Weekend Brazilian Brunch and Bar Fogo menu items. The Full
Churrasco
Experience, our prix fixe menu, provides the opportunity
to experience a variety of meats including beef, lamb, pork and chicken, simply seasoned and carefully fire-roasted to expose their natural flavors, as well as a selection of fresh seasonal salads and specialty items at the Market Table.
Throughout our history, we have been recognized for our leading consumer appeal by both national and local media in the markets where we
operate, including winning multiple “best of” restaurant awards from one of Brazil’s most prominent lifestyle publications,
Veja Magazine
, and numerous accolades in the US, including awards from
Nation’s Restaurant
News
,
Zagat
and
Wine Spectator Magazine
. We were also recently recognized in November of 2016 as the best steakhouse in the United States in a comprehensive survey conducted by one of America’s leading consumer magazines.
We opened our first restaurant in 1979 in Porto Alegre, Brazil. In 1986, we expanded to São Paulo, Brazil, a city in which we now
operate five restaurants. Encouraged by our growth in Brazil, we opened our first restaurant in the US in 1997 in Addison, Texas, a suburb of Dallas, and have since expanded our footprint nationwide. As of the date of this prospectus, we operate 35
restaurants in the United States, including our newest restaurants opened in Tysons, Virginia in January 2017, our second location in the Washington DC Metropolitan Area, and in Dallas, Texas, our second location in the Dallas-Fort Worth
Metropolitan Area, in February 2017, 10 restaurants in Brazil and through a joint venture, two restaurants in Mexico. From our 2010 to 2016 fiscal years, we grew our restaurant count by a compound annual growth rate (“CAGR”) of 12.7%.
Corporate Information
Fogo de
Chão, Inc. was incorporated as a Delaware corporation as Brasa (Parent) Inc. on May 24, 2012 in connection with the acquisition on July 21, 2012 of Fogo de Chão Churrascaria (Holdings) LLC, a Delaware limited liability
company, and its parent company, FC Holdings Inc., a Cayman Islands exempt company, by a collaborative group consisting of funds affiliated with Thomas H. Lee Partners, L.P. (“THL” and along with such funds and their affiliates, the
“THL Funds”) and other minority investors. On December 17, 2014 we changed our corporate name from Brasa (Parent) Inc. to Fogo de Chão, Inc. Our principal executive offices are located at 14881 Quorum Drive, Suite 750,
Dallas, Texas 75254, and our telephone number is (972) 960 9533. The address of our website is
www.fogodechao.com
. The information contained on, or accessible through, our website is not incorporated in, and shall not be part of, this
prospectus.
2
RISK FACTORS
Investing in the securities involves substantial risks. Before purchasing any of the securities, you should carefully consider and evaluate
all of the information included and incorporated by reference or deemed to be incorporated by reference in this prospectus or the applicable prospectus supplement, including the risk factors incorporated by reference herein from our Annual Report on
Form 10-K for the fiscal year ended January 1, 2017, as updated by annual, quarterly and other reports and documents we file with the SEC after the date of this prospectus and that are incorporated by reference herein or in the applicable
prospectus supplement. The risks and uncertainties that we have described are not the only ones facing our company. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect us. The occurrence
of any of these risks could materially and adversely impact our business, cash flows, condition (financial or otherwise), liquidity, prospects and/or results of operations. Please also refer to the sections below entitled “Special Note on
Forward-Looking Statements” and “Where You Can Find More Information.”
USE OF PROCEEDS
Unless otherwise indicated in a prospectus supplement, the net proceeds from the sale of the securities will be used for general
corporate purposes, including working capital, acquisitions, retirement of debt and other business opportunities.
In the case of a sale
by a selling stockholder, we will not receive any of the proceeds from such sale. We are required to bear the expenses (other than underwriting discounts) incident to an offering by our selling stockholders.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for each of the periods indicated.
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Financial Years
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Period from
May 24 to
December 30,
2012(1)(2)
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Period from
January 2 to
July 20,
2012(1)(3)
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2016
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2015
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2014
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2013
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Ratio of earnings to fixed charges
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3.99x
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1.80x
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1.95x
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1.03x
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0.27x
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0.31x
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(1)
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The Company was incorporated under the name Brasa (Parent) Inc. on May 24, 2012 in connection with the acquisition on July 21, 2012 of Fogo de Chão Churrascaria (Holdings) LLC, a Delaware limited liability company,
and its parent company, FC Holdings Inc., a Cayman Islands exempt company, by THL Funds and other minority investors (the “Acquisition”).
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(2)
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The ratio is for the period in 2012, after the Company was incorporated under the name Brasa (Parent) Inc.
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(3)
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The ratio is for the period in 2012, before the Acquisition.
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Earnings included in the
calculation of the ratio of earnings to fixed charges represent income before income taxes plus fixed charges, other than capitalized interest. Fixed charges include interest expense, including capitalized interest, amortization of deferred
financing costs and a portion of rent expense representative of interest.
3
SELLING STOCKHOLDERS
The table below lists the selling stockholders and other information regarding the “beneficial ownership” of the shares of common
stock by each of the selling stockholders as of April 17, 2017. Beneficial ownership is determined in accordance with the applicable rules promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Shares of
our common stock subject to options or warrants currently exercisable or exercisable within 60 days of April 17, 2017 are deemed outstanding for calculating the percentage of outstanding shares of the person holding these options or warrants, but
are not deemed outstanding for calculating the percentage of any other person. Percentage of beneficial ownership is based upon 28,236,594 shares of our common stock outstanding (including shares of our unvested restricted stock) as of April
17, 2017. To our knowledge, except as set forth in the footnotes to this table and subject to applicable community property laws, each person named in the table has sole voting and investment power with respect to the shares set forth opposite such
person’s name. Except as otherwise indicated, the address of each of the persons in this table is as follows: c/o Fogo de Chão, Inc., 14881 Quorum Drive, Suite 750, Dallas, Texas 75254.
We may register shares of common stock covered by this prospectus for re-offers and re-sales by the selling stockholders. We may register
these shares to permit selling stockholders to resell their shares when they deem appropriate. Selling stockholders may resell all, a portion or none of their shares at any time and from time to time. Selling stockholders may also sell, transfer or
otherwise dispose of some or all of their shares of our common stock in transactions exempt from the registration requirements of the Securities Act. We do not know when or in what amounts the selling stockholders may offer shares for sale under
this prospectus and any applicable prospectus supplement. We cannot estimate the number of the shares that will be held by the selling stockholders after completion of a potential offering. For purposes of the table below, we have assumed that the
selling stockholders will have sold all of the shares covered by this prospectus upon completion of the applicable offering. We are required to bear the expenses (other than underwriting discounts) incident to an offering by our selling
stockholders.
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Shares Beneficially Owned
Prior to Offering
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Maximum Number
of Shares That May
Be Offered
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Shares Beneficially Owned
After Offering
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Name of Selling Stockholders
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Number
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Percentage
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Number
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Percentage
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Lawrence J. Johnson
(1)
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509,326
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1.8
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%
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509,326
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—
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—
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George B. McGowan
(2)
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171,345
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*
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171,345
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—
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—
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Anthony Laday
(3)
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77,374
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*
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77,374
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—
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—
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Selma Oliveira
(4)
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321,990
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1.1
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%
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321,990
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—
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—
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Michael Prentiss
(5)
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204,763
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*
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204,763
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—
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—
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Albert G. McGrath
(6)
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40,732
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*
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40,732
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—
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—
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Funds affiliated with Thomas H. Lee Partners,
L.P.
(7)
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22,324,323
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79.1
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%
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22,324,323
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—
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—
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*
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Represents beneficial ownership of less than one percent.
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(1)
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Includes options to purchase an aggregate of 430,761 shares of common stock that are currently exercisable or exercisable within 60 days of April 17, 2017. Mr. Johnson is a member of our board of directors and our
Chief Executive Officer.
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(2)
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Includes options to purchase an aggregate of 160,389 shares of common stock that are currently exercisable or exercisable within 60 days of April 17, 2017. Mr. McGowan is our President.
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(3)
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Includes options to purchase an aggregate of 76,374 shares of common stock that are currently exercisable or exercisable within 60 days of April 17, 2017. Mr. Laday is our Chief Financial Officer.
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(4)
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Includes 2,688 shares of unvested restricted stock as to which such holder has directed distributions to us, which are made subject to forfeiture, and granted us an irrevocable proxy, until such shares of restricted
stock vest in accordance with their terms. Includes options to purchase an aggregate of 213,852 shares of common stock that are currently exercisable or exercisable within 60 days of April 17, 2017. Ms. Oliveira is our Chief Operating Officer.
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(5)
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Includes options to purchase an aggregate of 183,811 shares of common stock that are currently exercisable or exercisable within 60 days of April 17, 2017. Mr. Prentiss is our Senior Vice President, Corporate
Administration, and is our former Chief Accounting Officer.
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(6)
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Includes options to purchase an aggregate of 40,732 shares of common stock that are currently exercisable or exercisable within 60 days of April 17, 2017. Mr. McGrath is our General Counsel.
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(7)
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Consists of: (i) 12,055,476 shares held by Thomas H. Lee Equity Fund VI, L.P.; (ii) 8,163,328 shares held by Thomas H. Lee Parallel Fund VI, L.P.; (iii) 1,425,975 shares held by Thomas H. Lee Parallel
(DT) Fund VI, L.P. (the foregoing, collectively, the “THL VI Funds”); (iv) 415,870 shares held by THL Coinvestment Partners, L.P.; (v) 72,990 shares held by THL Operating Partners, L.P.; (vi) 62,730 shares held by Great-West
Investors, LP; (vii) 62,501 shares held by Putnam Investments Employees’ Securities Company III, LLC; (viii) 58,911 shares held by THL Equity Fund VI Investors (Fogo), LLC and (ix) 6,542 shares held by THL Equity Fund VI
Investors (Fogo) II, LLC (the foregoing, excluding the THL VI Funds collectively, the “THL Co-Investors”). The THL Co-Investors are co-investors of the THL VI Funds, are contractually obligated to coinvest and dispose of their shares
alongside the THL VI Funds on a pro rata basis and look to the THL VI Funds with respect to voting and investment determinations with respect to their shares. THL Holdco, LLC is the managing member of Thomas H. Lee Advisors, LLC, which is the
general partner of Thomas H. Lee Partners, L.P., which is the sole member of THL Equity Advisors VI, LLC, which is the general partner of the THL VI Funds. Voting and investment determinations with respect to the shares held or controlled by the THL
VI Funds are made by the private equity management committee of THL Holdco, LLC (the “THL Committee”). Todd M. Abbrecht, Anthony J. DiNovi, Thomas M. Hagerty, Soren L. Oberg, Scott M. Sperling and Kent R. Weldon are the members of the THL
Committee, and as such are the individuals who may be deemed to share beneficial ownership of the shares held or controlled by the THL VI Funds. Each member of the THL Committee disclaims beneficial ownership of such securities. The address of each
of the THL VI Funds, the THL Co-Investors (other than those listed in the following two sentences) and each member of the THL Committee is c/o Thomas H. Lee Partners, L.P., 100 Federal Street, Boston, Massachusetts 02110. The address of
Great-West Investors, LP is 8515 East Orchard Road, Greenwood Village, Colorado 80111. The address of Putnam Investments Employees’ Securities Company III LLC is c/o Putnam Investment, Inc., 1 Post Office Square, Boston, Massachusetts 02109.
Thomas H. Lee Partners, L.P. and their affiliates did not purchase shares of our company’s common stock outside the ordinary course of business as an investor or with, at the time of its acquisition of shares of our company’s common stock,
any agreements, understandings, or arrangements with any other persons, directly or indirectly, to dispose of the shares.
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DESCRIPTION OF SECURITIES
The following description is a general summary of the terms of the shares of common stock or shares of preferred stock that we may issue. In
addition, the selling stockholders may sell up to an aggregate of 23,649,853 shares of our common stock from time to time in one or more offerings. These summaries are not meant to be a complete description of each security. However, this prospectus
and the accompanying prospectus supplement contain the material terms of the securities being offered.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 200,000,000 shares of our common stock, par value $0.01 per share, and 15,000,000
shares of preferred stock, par value $0.01 per share. As of April 17, 2017, our common stock was held by approximately 32
holders of record. No shares of preferred stock were issued or outstanding as of April 17, 2017. The following
description summarizes the terms of our capital stock. Because it is only a summary, it does not contain all the information that may be important to you. For a complete description, you should refer to our amended and restated certificate of
incorporation and our amended and restated bylaws.
Common Stock
Holders of our common stock are entitled to one vote for each share held of record on all matters on which stockholders are generally entitled
to vote.
Holders of our common stock are entitled to receive dividends when and if declared by our board of directors out of funds
legally available therefor, subject to any statutory or contractual restrictions on the payment of dividends and to any restrictions on the payment of dividends imposed by the terms of any outstanding preferred stock.
Holders of our common stock do not have preemptive, subscription, redemption or conversion rights.
The rights, preferences and privileges of holders of common stock are subject to the rights of the holders of shares of any series of
preferred stock that we may designate and issue in the future.
Preferred Stock
Under our amended and restated certificate of incorporation, our board of directors has the authority, without action by our stockholders, to
designate and issue shares of preferred stock in one or more series and to designate the rights, preferences and privileges of each series, which may be greater than the rights of our common stock. It is not possible to state the actual effect of
the issuance of any shares of preferred stock upon the rights of holders of the common stock until our board of directors determines the specific rights of the holders of such preferred stock. However, the effects might include, among other things:
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restricting dividends on the common stock;
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•
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diluting the voting power of the common stock;
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•
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impairing the liquidation rights of the common stock; or
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•
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delaying or preventing a change in our control without further action by the stockholders.
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The issuance of our preferred stock could have the effect of delaying, deferring, or preventing a change in our control. Upon the completion
of the offering, no shares of preferred stock will be outstanding, and we have no present plans to issue any shares of preferred stock.
6
Options to Purchase Common Stock
There are outstanding options to purchase 1,958,381 shares of our common stock at a weighted average exercise price of $10.12 per share under
our 2012 Omnibus Equity Incentive Plan adopted July 20, 2012 and 134,500 shares of our common stock issuable upon the exercise of stock options granted to employees at a weighted average exercise price of $18.17 under our 2015 Omnibus Incentive
Plan adopted in June 2015.
Anti-Takeover Effects of Provisions of Our Charter, Our Bylaws and Delaware Law
Certain provisions of our amended and restated certificate of incorporation and amended and restated bylaws, and applicable provisions of the
Delaware General Corporation Law may make it more difficult for or prevent a third party from acquiring control of us or changing our board of directors and management. These provisions may have the effect of deterring hostile takeovers or delaying
changes in our control or in our management. These provisions are intended to enhance the likelihood of continued stability in the composition of our board of directors and in the policies furnished by them and to discourage certain types of
transactions that may involve an actual or threatened change in our control. These provisions are designed to reduce our vulnerability to an unsolicited acquisition proposal. The provisions also are intended to discourage certain tactics that may be
used in proxy fights. However, these provisions could have the effect of discouraging others from making tender offers for our shares and, as a consequence, they also may inhibit fluctuations in the market price of our shares that could result from
actual or rumored takeover attempts. Such provisions may also have the effect of preventing changes in our management.
Classified Board of
Directors
In accordance with the terms of our amended and restated certificate of incorporation and amended and restated bylaws,
our board of directors is divided into three classes, class I, class II and class III, with members of each class serving staggered three-year terms. Our amended and restated certificate of incorporation provides that the authorized number of
directors may be changed only by resolution of the board of directors. Any additional directorships resulting from an increase in the number of directors will be distributed among the three classes so that, as nearly as possible, each class will
consist of one-third of the directors. Our amended and restated certificate of incorporation and our bylaws also provide that, prior to the date on which THL owns less than 50% of our outstanding common stock, a director may be removed with or
without cause by the affirmative vote of the holders of a majority of the voting power of our outstanding shares of capital stock entitled to vote generally in the election of directors, voting together as a single class. At and following the date
on which THL owns less than 50% of our outstanding common stock a director may be removed only for cause by the affirmative vote of the holders of at least 75% of the voting power of our outstanding shares of capital stock entitled to vote generally
in the election of directors, voting together as a single class. Any vacancy on our board of directors, including a vacancy resulting from an enlargement of our board of directors, may be filled only by vote of a majority of our directors then in
office. Our classified board of directors could have the effect of delaying or discouraging an acquisition of us or a change in our management.
Special Meetings of Stockholders
Our bylaws provide that a special meeting of stockholders may be called only by the chairman of our board of directors or by a resolution
adopted by a majority of our board of directors. Stockholders are not permitted to call a special meeting of stockholders, to require that the chairman call such a special meeting, or to require that our board request the calling of a special
meeting of stockholders.
No Stockholder Action by Written Consent
Our amended and restated certificate of incorporation provides that, for so long as we remain a “controlled company” under the NASDAQ
rules, stockholder action may be taken only at an annual meeting or special
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meeting of stockholders and may not be taken by written consent instead of a meeting, unless the action to be taken by written consent of stockholders and the taking of this action by written
consent has been expressly approved in advance by the board of directors. Failure to satisfy any of the requirements for a stockholder meeting could delay, prevent or invalidate stockholder action.
Stockholder Advance Notice Procedure
Our amended and restated bylaws establish an advance notice procedure for stockholders to make nominations of candidates for election as
directors or to bring other business before an annual meeting of our stockholders. The amended and restated bylaws provide that any stockholder wishing to nominate persons for election as directors at, or bring other business before, an annual
meeting must deliver to our secretary advanced written notice of the stockholder’s intention to do so.
Section 203 of the Delaware
General Corporation Law
We have opted out of Section 203 of the Delaware General Corporation Law (the “DGCL”).
However, our amended and restated certificate of incorporation contains similar provisions providing that we may not engage in certain “business combinations” with any “interested stockholder” for a three-year period following
the time that the stockholder became an interested stockholder, unless:
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prior to such time, our board of directors approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder;
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upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of our voting stock outstanding at the time the transaction
commenced, excluding certain shares; or
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at or subsequent to that time, the business combination is approved by our board of directors and by the affirmative vote of holders of at least 66
2
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Generally, a “business combination” includes a merger, asset or stock sale or other transaction resulting in a financial benefit to
the interested stockholder. Subject to certain exceptions, an “interested stockholder” is a person who, together with that person’s affiliates and associates, owns, or within the previous three years owned, 15% or more of our voting
stock.
Under certain circumstances, this provision will make it more difficult for a person who would be an “interested
stockholder” to effect various business combinations with a corporation for a three-year period. This provision may encourage companies interested in acquiring our company to negotiate in advance with our board of directors because the
stockholder approval requirement would be avoided if our board of directors approves either the business combination or the transaction which results in the stockholder becoming an interested stockholder. These provisions also may have the effect of
preventing changes in our board of directors and may make it more difficult to accomplish transactions which stockholders may otherwise deem to be in their best interests.
Our amended and restated certificate of incorporation provides that THL, their respective affiliates and associates, and any of their
respective direct or indirect transferees of at least 5% of our outstanding common stock and any group as to which such persons are party to, do not constitute “interested stockholders” for purposes of this provision.
Exclusive Forum
Our amended and restated
bylaws provide that unless we consent to the selection of an alternative forum, a state or federal court located within the state of Delaware will, with certain limited exceptions, be the sole and
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exclusive forum for any stockholder (including any beneficial owner) to bring (i) any derivative action or proceeding brought on our behalf, (ii) any action asserting a claim of breach
of a fiduciary duty owed by any of our directors, officers or other employees to us or our stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, or (iv) any action asserting a claim governed by the
internal affairs doctrine, in each such case subject to said Delaware court having personal jurisdiction over the indispensable parties named as defendants therein. Any person or entity purchasing or otherwise acquiring or holding any interest in
shares of our capital stock shall be deemed to have notice of and consented to the forum provisions in our amended and restated bylaws. However, the enforceability of similar forum provisions in other companies’ certificates of incorporation or
bylaws has been challenged in legal proceedings, and it is possible that a court could find these types of provisions to be inapplicable or unenforceable.
Listing
Our common stock is listed on
the NASDAQ Global Select Market under the symbol “FOGO.”
Transfer Agent and Registrar
Our transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC.
DESCRIPTION OF DEBT SECURITIES
The debt securities will be our direct unsecured general obligations. The debt securities will be either senior debt securities or
subordinated debt securities. The debt securities will be issued under one or more separate indentures the forms of which are filed as exhibits to the registration statement of which this prospectus forms a part. Senior debt securities will be
issued under a senior indenture. Subordinated debt securities will be issued under a subordinated indenture. Each of the senior indenture and the subordinated indenture is referred to as an indenture.
The applicable prospectus supplement and/or other offering materials will describe the material terms of the debt securities offered through
that prospectus supplement as well as any general terms described in this section that will not apply to those debt securities. To the extent the applicable prospectus supplement or other offering materials relating to an offering of debt securities
are inconsistent with this prospectus, the terms of that prospectus supplement or other offering materials will supersede the information in this prospectus.
The prospectus supplement relating to any series of debt securities that we may offer will contain the specific terms of the debt securities.
These terms may include the following:
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the title and principal aggregate amount of the debt securities;
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whether the debt securities will be senior, subordinated or junior subordinated;
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whether the debt securities will be secured or unsecured;
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whether the debt securities are convertible or exchangeable into other securities;
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the percentage or percentages of principal amount at which such debt securities will be issued;
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the interest rate(s) or the method for determining the interest rate(s);
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the dates on which interest will accrue or the method for determining dates on which interest will accrue and dates on which interest will be payable;
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the person to whom any interest on the debt securities will be payable;
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the places where payments on the debt securities will be payable;
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redemption or early repayment provisions;
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authorized denominations;
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amount of discount or premium, if any, with which such debt securities will be issued;
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whether such debt securities will be issued in whole or in part in the form of one or more global securities;
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the identity of the depositary for global securities;
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whether a temporary security is to be issued with respect to such series and whether any interest payable prior to the issuance of definitive securities of the series will be credited to the account of the persons
entitled thereto;
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the terms upon which the beneficial interests in a temporary global security may be exchanged in whole or in part for beneficial interests in a definitive global security or for individual definitive securities;
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any covenants applicable to the particular debt securities being issued;
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any defaults and events of default applicable to the particular debt securities being issued;
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the guarantors of each series, if any, and the extent of the guarantees (including provisions relating to seniority, subordination, security and release of the guarantees), if any;
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any applicable subordination provisions for any subordinated debt securities;
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any restriction or condition on the transferability of the debt securities;
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the currency, currencies, or currency units in which the purchase price for, the principal of and any premium and any interest on, such debt securities will be payable;
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the time period within which, the manner in which and the terms and conditions upon which we or the purchaser of the debt securities can select the payment currency;
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the securities exchange(s) on which the securities will be listed, if any;
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whether any underwriter(s) will act as market maker(s) for the securities;
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the extent to which a secondary market for the securities is expected to develop;
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our obligations or right to redeem, purchase or repay debt securities under a sinking fund, amortization or analogous provision;
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provisions relating to covenant defeasance and legal defeasance;
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provisions relating to satisfaction and discharge of the indenture;
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provisions relating to the modification of the indenture both with and without consent of holders of debt securities issued under the indenture;
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the law that will govern the indenture and debt securities; and
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additional terms not inconsistent with the provisions of the indenture.
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General
We may sell the debt securities, including original issue discount securities, at par or at a substantial discount below their stated principal
amount. Unless we inform you otherwise in a prospectus supplement, we
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may issue additional debt securities of a particular series without the consent of the holders of the debt securities of such series outstanding at the time of issuance. Any such additional debt
securities, together with all other outstanding debt securities of that series, will constitute a single series of securities under the applicable indenture. In addition, we will describe in the applicable prospectus supplement material U.S. federal
income tax considerations and any other special considerations for any debt securities we sell which are denominated in a currency or currency unit other than U.S. dollars. Unless we inform you otherwise in the applicable prospectus supplement, the
debt securities will not be listed on any securities exchange.
We expect most debt securities to be issued in fully registered form
without coupons and in denominations of $1,000 and integral multiples thereof. Subject to the limitations provided in the indenture and in the prospectus supplement, debt securities that are issued in registered form may be transferred or exchanged
at the corporate office of the trustee or the principal corporate trust office of the trustee, without the payment of any service charge, other than any tax or other governmental charge payable in connection therewith.
If specified in the applicable prospectus supplement, certain of our subsidiaries will guarantee the debt securities. The particular terms of
any guarantee will be described in the related prospectus supplement.
Governing Law
The Indentures and the debt securities will be construed in accordance with and governed by the laws of the State of New York.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase our debt or equity securities or securities of third parties or other rights, including rights to receive
payment in cash or securities based on the value, rate or price of one or more specified commodities, currencies, securities or indices, or any combination of the foregoing. Warrants may be issued independently or together with any other
securities and may be attached to, or separate from, such securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a warrant agent. The terms of any warrants to be issued and a
description of the material provisions of the applicable warrant agreement will be set forth in the applicable prospectus supplement.
The
applicable prospectus supplement will describe the following terms of any warrants in respect of which this prospectus is being delivered:
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the title of such warrants;
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the aggregate number of such warrants;
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the price or prices at which such warrants will be issued;
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the currency or currencies in which the price of such warrants will be payable;
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the securities or other rights, including rights to receive payment in cash or securities based on the value, rate or price of one or more specified commodities, currencies, securities or indices, or any combination of
the foregoing, purchasable upon exercise of such warrants;
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the price at which and the currency or currencies in which the securities or other rights purchasable upon exercise of such warrants may be purchased;
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the date on which the right to exercise such warrants shall commence and the date on which such right shall expire;
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if applicable, the minimum or maximum amount of such warrants which may be exercised at any one time;
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if applicable, the designation and terms of the securities with which such warrants are issued and the number of such warrants issued with each such security;
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if applicable, the date on and after which such warrants and the related securities will be separately transferable;
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information with respect to book-entry procedures, if any;
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if applicable, a discussion of any material United States federal income tax considerations; and
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any other terms of such warrants, including terms, procedures and limitations relating to the exchange and exercise of such warrants.
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DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts for the purchase or sale of:
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debt or equity securities issued by us or securities of third parties, a basket of such securities, an index or indices of such securities or any combination of the above as specified in the applicable prospectus
supplement;
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Each purchase contract will entitle the holder thereof to purchase or sell, and
obligate us to sell or purchase, on specified dates, such securities, currencies or commodities at a specified purchase price, which may be based on a formula, all as set forth in the applicable prospectus supplement. We may, however, satisfy
our obligations, if any, with respect to any purchase contract by delivering the cash value of such purchase contract or the cash value of the property otherwise deliverable or, in the case of purchase contracts on underlying currencies, by
delivering the underlying currencies, as set forth in the applicable prospectus supplement. The applicable prospectus supplement will also specify the methods by which the holders may purchase or sell such securities, currencies or commodities
and any acceleration, cancellation or termination provisions or other provisions relating to the settlement of a purchase contract.
The
purchase contracts may require us to make periodic payments to the holders thereof or vice versa, which payments may be deferred to the extent set forth in the applicable prospectus supplement, and those payments may be unsecured or prefunded on
some basis. The purchase contracts may require the holders thereof to secure their obligations in a specified manner to be described in the applicable prospectus supplement. Alternatively, purchase contracts may require holders to satisfy
their obligations thereunder when the purchase contracts are issued. Our obligation to settle such pre-paid purchase contracts on the relevant settlement date may constitute indebtedness. Accordingly, pre-paid purchase contracts will be
issued under either the senior indenture or the subordinated indenture.
DESCRIPTION OF UNITS
As specified in the applicable prospectus supplement, we may issue units consisting of one or more purchase contracts, warrants, debt
securities, shares of preferred stock, shares of common stock or any combination of such securities. The applicable supplement will describe:
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the terms of the units and of the warrants, debt securities and common stock comprising the units, including whether and under what circumstances the securities comprising the units may be traded separately;
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a description of the terms of any unit agreement governing the units; and
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a description of the provisions for the payment, settlement, transfer or exchange of the units.
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FORMS OF SECURITIES
Each debt security, warrant and unit will be represented either by a certificate issued in definitive form to a particular investor or by one
or more global securities representing the entire issuance of securities. Certificated securities in definitive form and global securities will be issued in registered form. Definitive securities name you or your nominee as the owner of
the security, and in order to transfer or exchange these securities or to receive payments other than interest or other interim payments, you or your nominee must physically deliver the securities to the trustee, registrar, paying agent or other
agent, as applicable. Global securities name a depositary or its nominee as the owner of the debt securities, warrants or units represented by these global securities. The depositary maintains a computerized system that will reflect each
investor’s beneficial ownership of the securities through an account maintained by the investor with its broker/dealer, bank, trust company or other representative, as we explain more fully below.
Registered Global Securities
We may
issue the registered debt securities, warrants and units in the form of one or more fully registered global securities that will be deposited with a depositary or its nominee identified in the applicable prospectus supplement and registered in the
name of that depositary or nominee. In those cases, one or more registered global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal or face amount of the securities to be
represented by registered global securities. Unless and until it is exchanged in whole for securities in definitive registered form, a registered global security may not be transferred except as a whole by and among the depositary for the
registered global security, the nominees of the depositary or any successors of the depositary or those nominees.
If not described below,
any specific terms of the depositary arrangement with respect to any securities to be represented by a registered global security will be described in the prospectus supplement relating to those securities. We anticipate that the following
provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a registered global security will be limited
to persons, called participants, that have accounts with the depositary or persons that may hold interests through participants. Upon the issuance of a registered global security, the depositary will credit, on its book-entry registration and
transfer system, the participants’ accounts with the respective principal or face amounts of the securities beneficially owned by the participants. Any dealers, underwriters or agents participating in the distribution of the securities
will designate the accounts to be credited. Ownership of beneficial interests in a registered global security will be shown on, and the transfer of ownership interests will be effected only through, records maintained by the depositary, with
respect to interests of participants, and on the records of participants, with respect to interests of persons holding through participants. The laws of some states may require that some purchasers of securities take physical delivery of these
securities in definitive form. These laws may impair your ability to own, transfer or pledge beneficial interests in registered global securities.
So long as the depositary, or its nominee, is the registered owner of a registered global security, that depositary or its nominee, as the
case may be, will be considered the sole owner or holder of the securities represented by the registered global security for all purposes under the applicable indenture, warrant agreement or unit agreement. Except as described below, owners of
beneficial interests in a registered global security will not be entitled to have the securities represented by the registered global security registered in their names, will not receive or be entitled to receive physical delivery of the securities
in definitive form and will not be considered the owners or holders of the securities under the applicable indenture, warrant agreement or unit agreement. Accordingly, each person owning a beneficial interest in a registered global security
must rely on the procedures of the depositary for that registered global security and, if that person is not a participant, on the procedures of the participant through which the person owns its interest, to exercise any rights of a holder under the
applicable indenture, warrant agreement or unit agreement. We understand that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global security
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desires to give or take any action that a holder is entitled to give or take under the applicable indenture, warrant agreement or unit agreement, the depositary for the registered global security
would authorize the participants holding the relevant beneficial interests to give or take that action, and the participants would authorize beneficial owners owning through them to give or take that action or would otherwise act upon the
instructions of beneficial owners holding through them.
Principal, premium, if any, and interest payments on debt securities, and any
payments to holders with respect to warrants or units, represented by a registered global security registered in the name of a depositary or its nominee will be made to the depositary or its nominee, as the case may be, as the registered owner of
the registered global security. None of Fogo, the trustees, the warrant agents, the unit agents or any other agent of Fogo, agent of the trustees or agent of the warrant agents or unit agents will have any responsibility or liability for any
aspect of the records relating to payments made on account of beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to those beneficial ownership interests.
We expect that the depositary for any of the securities represented by a registered global security, upon receipt of any payment of principal,
premium, interest or other distribution of underlying securities or other property to holders on that registered global security, will immediately credit participants’ accounts in amounts proportionate to their respective beneficial interests
in that registered global security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests in a registered global security held through participants will be governed by standing
customer instructions and customary practices, as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name,” and will be the responsibility of those participants.
If the depositary for any of these securities represented by a registered global security is at any time unwilling or unable to continue as
depositary or ceases to be a clearing agency registered under the Exchange Act, and a successor depositary registered as a clearing agency under the Exchange Act is not appointed by us within 90 days, we will issue securities in definitive form in
exchange for the registered global security that had been held by the depositary. Any securities issued in definitive form in exchange for a registered global security will be registered in the name or names that the depositary gives to the
relevant trustee, warrant agent, unit agent or other relevant agent of ours or theirs. It is expected that the depositary’s instructions will be based upon directions received by the depositary from participants with respect to ownership
of beneficial interests in the registered global security that had been held by the depositary.
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PLAN OF DISTRIBUTION
Fogo and/or the selling stockholders, if applicable, may sell the securities in one or more of the following ways (or in any combination) from
time to time:
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through underwriters or dealers;
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directly to a limited number of purchasers or to a single purchaser;
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through a combination of any such methods; or
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through any other methods described in a prospectus supplement.
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The prospectus supplement
will state the terms of the offering of the securities, including:
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the name or names of any underwriters, dealers or agents;
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the purchase price of such securities and the proceeds to be received by Fogo, if any;
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any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation;
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any initial public offering price;
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any discounts or concessions allowed or reallowed or paid to dealers; and
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any securities exchanges on which the securities may be listed.
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Any initial public offering
price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
If we and/or the selling
stockholders, if applicable, use underwriters in the sale, the securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including:
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negotiated transactions,
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at a fixed public offering price or prices, which may be changed,
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at market prices prevailing at the time of sale,
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at prices related to prevailing market prices or
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Unless otherwise stated in a prospectus supplement, the obligations of
the underwriters to purchase any securities will be conditioned on customary closing conditions and the underwriters will be obligated to purchase all of such series of securities, if any are purchased.
We and/or the selling stockholders, if applicable, may sell the securities through agents from time to time. The prospectus supplement will
name any agent involved in the offer or sale of the securities and any commissions we pay to them. Generally, any agent will be acting on a best efforts basis for the period of its appointment.
We and/or the selling stockholders, if applicable, may authorize underwriters, dealers or agents to solicit offers by certain purchasers to
purchase the securities from Fogo at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. The contracts will be subject only to
those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth any commissions we pay for solicitation of these contracts.
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Underwriters and agents may be entitled under agreements entered into with Fogo and/or the
selling stockholders, if applicable, to indemnification by Fogo and/or the selling stockholders, if applicable, against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments which the
underwriters or agents may be required to make. Underwriters and agents may be customers of, engage in transactions with, or perform services for Fogo and its affiliates in the ordinary course of business.
Each series of securities will be a new issue of securities and will have no established trading market other than the common stock, which is
listed on the NASDAQ Global Select Market. Any underwriters to whom securities are sold for public offering and sale may make a market in the securities, but such underwriters will not be obligated to do so and may discontinue any market making at
any time without notice. The securities, other than the common stock, may or may not be listed on a national securities exchange.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document
that we file at the Public Reference Room of the SEC at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. In addition, the SEC
maintains an Internet site at http://www.sec.gov, from which interested persons can electronically access our SEC filings, including the registration statement and the exhibits and schedules thereto.
The SEC allows us to “incorporate by reference” the information we file with them, which means that we can disclose important
information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC and which is incorporated by reference will automatically
update and supersede this information. We incorporate by reference the documents listed below and all future filings made pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than information in the documents or filings that
is deemed to have been furnished and not filed) until the termination of the offerings of all of the securities covered by this prospectus.
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Annual Report on Form 10-K for the year ended January 1, 2017;
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Definitive Proxy Statement on Schedule 14A filed with the SEC on April 13, 2017; and
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Our Current Report on Form 8-K filed with the SEC on April 11, 2017.
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You may request a
copy of these filings at no cost, by writing or telephoning our Investor Relations department, at the following address:
Fogo de Chao,
Inc.
14881 Quorum Drive, Suite 750
Dallas, Texas 75254
(972) 960-9533
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SPECIAL NOTE ON FORWARD-LOOKING STATEMENTS
This prospectus, including the documents incorporated by reference herein, contains forward-looking statements. Forward-looking statements
relate to expectations, beliefs, projections, future plans and strategies, anticipated events or trends and similar expressions concerning matters that are not historical facts, such as statements regarding our future financial condition or results
of operations, our prospects and strategies for future growth, the development and introduction of new products, and the implementation of our marketing and branding strategies. In many cases, you can identify forward-looking statements by terms
such as “may,” “will,” “should,” “expects,” “plans,” “anticipates,” “believes,” “estimates,” “predicts,” “potential,” “seeks,”
“intends,” “targets” or the negative of these terms or other comparable terminology.
The forward-looking statements
contained in this prospectus reflect our current views about future events and are subject to risks, uncertainties, assumptions and changes in circumstances that may cause events or our actual activities or results to differ significantly from those
expressed in any forward-looking statement. Although we believe that our assumptions are reasonable, we cannot guarantee future events, results, actions, levels of activity, performance or achievements. Readers are cautioned not to place undue
reliance on these forward-looking statements. A number of important factors could cause actual results to differ materially from those indicated by the forward-looking statements, including, but not limited to, those factors discussed under the
caption entitled “Risk Factors” in our Annual Report on Form 10-K for the fiscal year ended January 1, 2017. These factors include without limitation:
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changes in general economic, political or market conditions, both in the United States and Brazil;
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increased competition in our industry;
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risk associated with our Brazilian operations and any other future international operations;
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our ability to manage operations at our current size or manage growth effectively;
|
|
|
•
|
|
our ability to successfully expand in the United States and other new markets;
|
|
|
•
|
|
our ability to locate suitable locations to open new restaurants and to attract guests to our restaurants;
|
|
|
•
|
|
the fact that we will rely on our operating subsidiaries to provide us with distributions to fund our operating activities, which could be limited by law, regulation or otherwise;
|
|
|
•
|
|
our ability to continually innovate and provide our consumers with innovative dining experiences;
|
|
|
•
|
|
our ability to maintain recent levels of comparable revenue or average revenue per square foot;
|
|
|
•
|
|
the ability of our suppliers to deliver beef in a timely or cost-effective manner;
|
|
|
•
|
|
our lack of long-term supplier contracts, our concentration of suppliers and distributors and potential increases in the price of beef;
|
|
|
•
|
|
our ability to raise money and maintain sufficient levels of cash flow;
|
|
|
•
|
|
conflicts of interest with the THL Funds;
|
|
|
•
|
|
our status as a “controlled company” which means that we are exempt from certain corporate governance rules primarily relating to board independence, and we intend to use some or all of these exemptions;
|
|
|
•
|
|
the terms and conditions we are subject to under our credit facilities;
|
|
|
•
|
|
our ability to effectively market and maintain a positive brand image;
|
|
|
•
|
|
changes in government regulation
|
|
|
•
|
|
our ability to attract and maintain the services of our senior management and key employees;
|
18
|
|
•
|
|
the availability and effective operation of management information systems and other technology;
|
|
|
•
|
|
changes in consumer preferences or changes in demand for upscale dining experiences;
|
|
|
•
|
|
our ability to accurately anticipate and respond to seasonal or quarterly fluctuations in our operating results;
|
|
|
•
|
|
our ability to maintain effective internal controls or the identification of additional material weaknesses;
|
|
|
•
|
|
our expectations regarding the time during which we will be an emerging growth company under the JOBS Act;
|
|
|
•
|
|
changes in accounting standards; and
|
|
|
•
|
|
other risks described in the “Risk Factors” section of our Annual Report on Form 10-K for the fiscal year ended January 1, 2017.
|
Although we believe that the assumptions inherent in the forward-looking statements contained in this prospectus are reasonable, undue
reliance should not be placed on these statements, which only apply as of the date hereof. Except as required by applicable securities law, we undertake no obligation to update any forward-looking statement to reflect events or circumstances after
the date on which the statement is made or to reflect the occurrence of unanticipated events.
LEGAL OPINIONS
The validity of the securities, except for the shares of our common stock for resale by the selling stockholders, in respect of
which this prospectus is being delivered will be passed on for us by Davis Polk & Wardwell LLP, New York, New York. The validity of the shares of our common stock for resale by the selling stockholders has been passed upon by Albert G. McGrath,
our General Counsel. Mr. McGrath is eligible to receive awards under our 2012 Omnibus Equity Incentive Plan and our 2015 Omnibus Incentive Plan.
EXPERTS
The
consolidated financial statements incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended January 1, 2017 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent
registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
19
$250,000,000
FOGO DE CHAO, INC.
Common Stock
Preferred Stock
Debt Securities
Warrants
Purchase Contracts
Units
and
23,649,853 Shares of Common Stock for Resale by Selling Stockholders
PROSPECTUS
, 2017
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
|
Item 14.
|
Other Expenses of Issuance and Distribution.
|
The following table sets forth the costs
and expenses to be borne by the registrant in connection with the offerings described in this registration statement.
|
|
|
|
|
|
|
|
|
Amount to Be
Paid
|
|
|
Registration fee
|
|
$
|
72,831.29
|
|
|
Transfer Agent and Trustee fees and expenses
|
|
|
*
|
|
|
Printing
|
|
|
*
|
|
|
Accounting fees and expenses
|
|
|
*
|
|
|
Legal fees and expenses
|
|
|
*
|
|
|
Rating Agency fees
|
|
|
*
|
|
|
Miscellaneous
|
|
|
*
|
|
|
|
|
|
|
|
|
TOTAL
|
|
$
|
*
|
|
|
|
|
|
|
|
|
*
|
The applicable prospectus supplement will set forth the estimated aggregate amount of expenses payable with respect to any offering of the securities.
|
|
Item 15.
|
Indemnification of Directors and Officers.
|
Section 102 of the DGCL permits a
corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability
(i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for unlawful
payments of dividends or unlawful stock repurchases, redemptions or other distributions pursuant to Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. Section 174 of the
DGCL provides, among other things, that a director who willfully and negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption may be held liable for such actions. A director who was either absent when the
unlawful actions were approved or dissented at the time, may avoid liability by causing his or her dissent to such actions to be entered in the books containing the minutes of the meetings of the board of directors at the time the action occurred or
immediately after the absent director receives notice of the unlawful acts. Our amended and restated certificate of incorporation includes a provision that eliminates the personal liability of directors for monetary damages for actions taken as a
director to the fullest extent authorized by the DGCL.
Section 145 of the DGCL provides that a corporation may indemnify directors
and officers as well as other employees and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or
completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee or agent to the registrant. The DGCL provides that Section 145 is not exclusive of other
rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
Our existing certificate of incorporation generally provides that we will indemnify our directors and officers to the fullest extent permitted
by law. Our existing certificate of incorporation also provides that the indemnification and advancement of expenses provided by, or granted pursuant to the existing certificate of incorporation are not exclusive of any other rights to which those
seeking indemnification or advancement of
II-1
expenses may be entitled under any bylaw, agreement, vote of stockholders or otherwise. Section 145(f) of the DGCL further provides that a right to indemnification or to advancement of
expenses arising under a provision of the certificate of incorporation shall not be eliminated or impaired by an amendment to such provision after the occurrence of the act or omission which is the subject of the civil, criminal, administrative or
investigation action, suit or proceeding for which indemnification or advancement of expenses is sought.
We currently have
indemnification agreements in place with our directors. We may enter into separate indemnification agreements with each of our directors and executive officers, which is in addition to and may be broader than the indemnification provided for in our
charter documents. These agreements, among other things, provide for indemnification of our directors and executive officers for expenses, judgments, fines and settlement amounts incurred by this person in any action or proceeding arising out of
this person’s services as a director or executive officer or at our request. We believe that these provisions and agreements are necessary to attract and retain qualified persons as directors and executive officers. There is no pending
litigation or proceeding involving a director or executive officer of the registrant for which indemnification is sought.
Insofar as
indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed 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.
We also will maintain
officers’ and directors’ liability insurance which insures against liabilities that officers and directors of the registrant may, in such capacities, incur. Section 145(g) of the DGCL provides that a corporation shall have power to
purchase and maintain insurance on behalf of any person who is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of another entity, against any liability asserted against
such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under that section.
We expect that any underwriting agreement will provide for indemnification by the underwriters of the registrant and its executive officers
and directors, by the registrant of the underwriters, for certain liabilities, including liabilities arising under the Securities Act.
The following is a list of all exhibits filed as a part of this registration
statement on Form S-3, including those incorporated herein by reference.
|
|
|
|
|
Exhibit
Number
|
|
Description
|
|
|
|
|
1.1**
|
|
Form of Underwriting Agreement
|
|
|
|
|
4.1*
|
|
Amended and Restated Certificate of Incorporation of Fogo de Chão, Inc. (incorporated herein by reference to Exhibit 3.1 of the registrant’s Current Report on Form 8-K filed June 30, 2015)
|
|
|
|
|
4.2*
|
|
Amended and Restated Bylaws of Fogo de Chão, Inc. (incorporated herein by reference to Exhibit 3.2 of the registrant’s Current Report on Form 8-K filed June 30, 2015)
|
|
|
|
|
4.3*
|
|
Amended and Restated Registration Rights Agreement among Fogo de Chão, Inc., the THL Investors, the Management Stockholders and the Other Investors named therein (incorporated herein by reference to Exhibit 4.1 of the
registrant’s Amendment No. 2 to Form S-1 filed June 8, 2015)
|
|
|
|
|
4.4
|
|
Form of Senior Indenture
|
|
|
|
|
4.5**
|
|
Form of Senior Note
|
|
|
|
|
4.6
|
|
Form of Subordinated Indenture
|
II-2
|
|
|
|
|
Exhibit
Number
|
|
Description
|
|
|
|
|
4.7**
|
|
Form of Subordinated Note
|
|
|
|
|
4.8**
|
|
Form of Warrant Agreement
|
|
|
|
|
4.9**
|
|
Form of Purchase Contract
|
|
|
|
|
4.10**
|
|
Form of Unit Agreement
|
|
|
|
|
5.1*
|
|
Opinion of Davis Polk & Wardwell LLP
|
|
|
|
|
5.2
|
|
Opinion of Albert G. McGrath, Esq.
|
|
|
|
|
12.1
|
|
Computation of Ratio of Earnings to Fixed Charges
|
|
|
|
|
23.1
|
|
Consent of Independent Registered Public Accounting Firm
|
|
|
|
|
23.2*
|
|
Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1 hereto)
|
|
|
|
|
23.3
|
|
Consent of Albert G. McGrath, Esq. (included in Exhibit 5.2 hereto)
|
|
|
|
|
24.1*
|
|
Power of Attorney (included in signature page)
|
|
|
|
|
25.1***
|
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of Trustee under the Senior Indenture
|
|
|
|
|
25.2***
|
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of Trustee under the Subordinated Indenture
|
|
**
|
To be filed, if necessary, by amendment or as an exhibit to a Current Report on Form 8-K.
|
|
***
|
To be filed separately pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended, and the appropriate rules and regulations thereunder.
|
|
|
(a)
|
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 end 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 a 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 (i), (ii) and
(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
II-3
(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 herein, 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.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as
of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to
be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of
the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering
thereof.
Provided, however
, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that
was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the
purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of
the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus
relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an
offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act.
II-4
(c) 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 Section 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.
(d) 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.
II-5
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-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on April 18, 2017.
|
|
|
|
|
Fogo de Chão, Inc.
|
|
|
|
|
By:
|
|
/s/ Lawrence J. Johnson
|
|
|
|
Name: Lawrence J. Johnson
|
|
|
|
Title: Chief Executive Officer
|
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities, in the locations and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Lawrence J. Johnson
Lawrence J. Johnson
|
|
Director and Chief Executive Officer
|
|
April 18, 2017
|
|
|
|
|
|
/s/ Anthony D. Laday
Anthony D. Laday
|
|
Chief Financial Officer
|
|
April 18, 2017
|
|
|
|
|
|
*
Stacy A. Murray
|
|
Principal Accounting Officer, Vice President of Accounting and
Controller
|
|
April 18, 2017
|
|
|
|
|
|
*
Michael A. Prentiss
|
|
Senior Vice President, Corporate Administration
|
|
April 18, 2017
|
|
|
|
|
|
*
George Barry McGowan
|
|
President
|
|
April 18, 2017
|
|
|
|
|
|
*
Todd M. Abbrecht
|
|
Director
|
|
April 18, 2017
|
|
|
|
|
|
*
Gerald W. Deitchle
|
|
Director
|
|
April 18, 2017
|
|
|
|
|
|
|
|
*
Douglas A. Haber
|
|
Director
|
|
April 18, 2017
|
|
|
|
|
|
*
Neil Moses
|
|
Director
|
|
April 18, 2017
|
|
|
|
|
|
*
Douglas R. Pendergast
|
|
Director
|
|
April 18, 2017
|
|
|
|
|
|
*
Jeff T. Swenson
|
|
Director
|
|
April 18, 2017
|
|
|
|
|
|
*By:
|
|
/s/ Lawrence J. Johnson
|
|
|
|
Name: Lawrence J. Johnson
|
|
|
|
As Attorney-in-Fact
|
EXHIBIT INDEX
|
|
|
|
|
Exhibit
Number
|
|
Description
|
|
|
|
|
1.1**
|
|
Form of Underwriting Agreement
|
|
|
|
|
4.1*
|
|
Amended and Restated Certificate of Incorporation of Fogo de Chão, Inc. (incorporated herein by reference to Exhibit 3.1 of the registrant’s Current Report on Form 8-K filed June 30, 2015)
|
|
|
|
|
4.2*
|
|
Amended and Restated Bylaws of Fogo de Chão, Inc. (incorporated herein by reference to Exhibit 3.2 of the registrant’s Current Report on Form 8-K filed June 30, 2015)
|
|
|
|
|
4.3*
|
|
Amended and Restated Registration Rights Agreement among Fogo de Chão, Inc., the THL Investors, the Management Stockholders and the Other Investors named therein (incorporated herein by reference to Exhibit 4.1 of the
registrant’s Amendment No. 2 to Form S-1 filed June 8, 2015)
|
|
|
|
|
4.4
|
|
Form of Senior Indenture
|
|
|
|
|
4.5**
|
|
Form of Senior Note
|
|
|
|
|
4.6
|
|
Form of Subordinated Indenture
|
|
|
|
|
4.7**
|
|
Form of Subordinated Note
|
|
|
|
|
4.8**
|
|
Form of Warrant Agreement
|
|
|
|
|
4.9**
|
|
Form of Purchase Contract
|
|
|
|
|
4.10**
|
|
Form of Unit Agreement
|
|
|
|
|
5.1*
|
|
Opinion of Davis Polk & Wardwell LLP
|
|
|
|
|
5.2
|
|
Opinion of Albert G. McGrath, Esq.
|
|
|
|
|
12.1
|
|
Computation of Ratio of Earnings to Fixed Charges
|
|
|
|
|
23.1
|
|
Consent of Independent Registered Public Accounting Firm
|
|
|
|
|
23.2*
|
|
Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1 hereto)
|
|
|
|
|
23.3
|
|
Consent of Albert G. McGrath, Esq. (included in Exhibit 5.2 hereto)
|
|
|
|
|
24.1*
|
|
Power of Attorney (included in signature page)
|
|
|
|
|
25.1***
|
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of Trustee under the Senior Indenture
|
|
|
|
|
25.2***
|
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of Trustee under the Subordinated Indenture
|
|
**
|
To be filed, if necessary, by amendment or as an exhibit to a Current Report on Form 8-K.
|
|
***
|
To be filed separately pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended, and the appropriate rules and regulations thereunder.
|
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