As filed with the Securities and Exchange Commission on August 19, 2005
Registration No.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT
OF 1933
RUTH’S CHRIS STEAK HOUSE, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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72-1060618
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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3321 Hessmer Avenue
Metairie, Lousiana
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70002
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(Address of Principal Executive Offices)
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(Zip Code)
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Ruth’s Chris Steak House, Inc. 2005 Long-Term Equity Incentive Plan
Ruth’s Chris Steak House, Inc. 2000 Stock Option Plan
(Full title of the plan)
Craig S. Miller
President and Chief Executive Officer
Ruth’s Chris Steak House, Inc.
3321 Hessmer Avenue
Metairie, Lousiana 70002
(Name and address of agent for service)
(504) 454-6560
(Telephone number, including area code, of agent for service)
Copy to:
James S. Rowe, Esq.
Kirkland &
Ellis LLP
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
CALCULATION OF REGISTRATION FEE
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Title of securities to be
registered
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Amount to be
registered (1)
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Proposed maximum
offering price per
share (2)
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Proposed maximum
aggregate offering
price (2)
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Amount of
registration
fee
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Common Stock, par value $0.01 per share
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350,000(3)
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$
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18.05
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$
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6,317,500
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$
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743.57
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Common Stock, par value $0.01 per share
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2,012,500(4)
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$
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20.43
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$
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41,115,375
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$
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4,839.28
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Common Stock, par value $0.01 per share
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1,212,221(5)
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$
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0.48
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$
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581,866.08
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$
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68.48
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Total
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3,574,721 shares
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$
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48,014,741.08
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$
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5,651.33
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(1)
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Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”) this Registration Statement shall also cover any additional shares of common stock
which become issuable under the above-named plan by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of our
outstanding shares of common stock.
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(2)
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With respect to the 350,000 shares of common stock issuable upon the exercise of stock options that are currently outstanding under the Ruth’s Chris Steak House, Inc. 2005
Long-Term Equity Incentive Plan (the “2005 Plan”) and the 1,212,221 shares of common stock issuable upon the exercise of stock options that are currently outstanding under the Ruth’s Chris Steak House, Inc. 2000 Stock Option Plan (the
“2000 Plan”), the proposed maximum offering price is calculated pursuant to Rule 457(h) under the Securities Act based on average exercise prices of $18.05 for the options outstanding under the 2005 Plan and approximately $0.48 for the
options outstanding under the 2000 Plan. With respect to the 2,012,500 shares of common stock that are currently authorized for issuance upon exercise of awards that have not yet been granted under the 2005 Plan, the proposed maximum offering price
is calculated pursuant to paragraphs (c) and (h) of Rule 457 under the Securities Act on the basis of the average of the high and low sale prices for the shares of common stock as reported on The Nasdaq Stock Market on August 16, 2005 solely for the
purpose of calculating the registration fee.
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(3)
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Represents shares of common stock issuable upon the exercise of stock options that are currently outstanding under the 2005 Plan.
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(4)
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Represents shares of common stock that are currently authorized for issuance upon exercise of awards that have not yet been granted under the 2005 Plan.
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(5)
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Represents shares of common stock issuable upon the exercise of stock options that are currently outstanding under the 2000 Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
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The documents containing the information specified in Part I will be delivered in accordance with Rule 428(b)(1) under the Securities Act. Such documents are not required to be, and
are not, filed with the Securities and Exchange Commission (the “Commission”), either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents, and
the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by Ruth’s Chris Steak House, Inc. (the “Company”) with the Commission, are incorporated in
this Registration Statement by reference:
(a)
The Company’s Prospectus, dated August 8, 2005 and filed on August 9, 2005 pursuant to Rule 424(b) of the Securities Act, which relates to the Company’s Registration Statement on Form S-1 (Registration No. 333-124285).
(b) The description of the Company’s common stock,
par value $0.01 per share, included under the caption “Description of Capital Stock” in the Prospectus forming a part of the Company’s Registration Statement on Form S-1, initially filed with the Commission on April 25, 2005
(Registration No. 333-124285), including exhibits, and as amended, which description has been incorporated by reference in Item 1 of the Company’s Registration Statement on Form 8-A, filed pursuant to Section 12 of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), on August 9, 2005 (Registration No. 000-51485).
All reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of
this Registration Statement, but prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
We are incorporated under the laws of the State of Delaware. Section 145 (“Section 145”) of the General
Corporation Law of the State of Delaware (the “DGCL”) provides that a Delaware corporation may indemnify any person who was, is or is threatened to be made, party to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his conduct was illegal. A Delaware corporation may indemnify any persons who are, were or are threatened to be made, a party to any threatened, pending or completed action or
suit by or in the right of the corporation by reasons of the fact that such person is or was a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually
and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best
interests, provided that no indemnification is permitted without judicial approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director has actually and reasonably incurred.
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Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would otherwise have the power to indemnify him under Section 145.
Our amended and restated certificate of incorporation provides that we must indemnify our directors and officers to the
fullest extent authorized by the DGCL and must also pay expenses incurred in defending any such proceeding in advance of its final disposition upon delivery of an undertaking, by or on behalf of an indemnified person, to repay all amounts so
advanced if it should be determined ultimately that such person is not entitled to be indemnified under this section or otherwise.
The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any
statute, provision of our amended and restated certificate of incorporation, our by laws, agreement, vote of stockholders or disinterested directors or otherwise.
We maintain insurance to protect us and our directors and officers against any expense, liability or loss, whether or not we
would have the power to indemnify such persons against such expense, liability or loss under applicable law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Reference is made to the attached Exhibit Index, which is incorporated by
reference herein.
Item 9. Undertakings.
(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 the Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or 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% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective
registration statement; and
(iii) To include
any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
provided
,
however
, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to 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 Exchange Act that are
incorporated by reference in the Registration Statement.
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(2) That, for the purpose of determining any liability under the Securities Act, each
such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and
(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.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of
the Company’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated
by reference in the Registration Statement 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.
(c) Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New Orleans, State of Louisiana, on August 19, 2005.
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RUTH’S CHRIS STEAK HOUSE, INC.
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By:
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/s/ Craig S. Miller
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Craig S. Miller
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President and Chief Executive Officer
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POWER OF
ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person
whose signature appears below constitutes and appoints Craig S. Miller and Thomas J. Pennison, Jr. and each of them his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his
or her name, place and stead, in any and all capacities (including his or her capacity as a director and/or officer) to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of
the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated on August 17, 2005.
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Signature
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Title
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/s/ Craig S. Miller
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President, Chief Executive Officer and Director
(Principal Executive Officer)
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Craig S. Miller
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/s/ Thomas J. Pennison, Jr.
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Chief Financial Officer and Vice President
(Principal Financial and Accounting Officer)
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Thomas J. Pennison, Jr.
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/s/ Robin P. Selati
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Chairman of the Board
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Robin P. Selati
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/s/ Carla Cooper
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Director
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Carla Cooper
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/s/ Bannus B. Hudson
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Director
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Bannus B. Hudson
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/s/ Alan Vituli
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Director
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Alan Vituli
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EXHIBIT INDEX
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Exhibit
Number
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Description
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4.1
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Amended and Restated Certificate of Incorporation of the Company.*
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4.2
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Amended and Restated By-laws of the Company.**
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4.3
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Form of certificate representing shares of common stock, $0.01 par value per share.*
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4.4
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Ruth’s Chris Steak House, Inc. 2000 Stock Option Plan.***
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4.5
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Ruth’s Chris Steak House, Inc. 2005 Long-Term Equity Incentive Plan.****
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5.1
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Opinion of Kirkland & Ellis LLP with respect to the legality of the shares of common stock being registered hereby.*****
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23.1
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Consent of KPMG LLP.*****
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23.2
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Consent of Kirkland & Ellis LLP (included in Exhibit 5.1).*****
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24.1
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Power of Attorney of certain officers and directors of the Company to file future amendments (set forth on the signature page of this Registration Statement).*****
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*
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Previously filed on August 2, 2005 as an exhibit to the Company’s Registration Statement on Form S-1, as amended (File No. 333-124285).
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**
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Previously filed on July 12, 2005 as an exhibit to the Company’s Registration Statement on Form S-1, as amended (File No. 333-124285).
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***
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Previously filed on April 25, 2005 as an exhibit to the Company’s Registration Statement on Form S-1, as amended (File No. 333-124285).
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****
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Previously filed on August 8, 2005 as an exhibit to the Company’s Registration Statement on Form S-1, as amended (File No. 333-124285).
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Exhibit 5.1
200 East Randolph Drive
Chicago, Illinois 60601
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312 861-2000
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Facsimile:
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312 861-2200
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www.kirkland.com
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August 19, 2005
Ruth’s Chris Steak House, Inc.
3321 Hessmer Avenue
Metairie, Lousiana 70002
Registration Statement on Form S-8
Ladies and Gentlemen:
We are providing this letter in our capacity as special counsel to Ruth’s Chris Steak House, Inc., a Delaware
corporation (the “Company”), in connection with the filing by the Company of a Registration Statement on Form S-8 under the Securities Act of 1933, as amended (the “Act”), with the Securities and Exchange Commission (the
“Commission”) covering the proposed issuance of up to 3,574,721 shares of common stock of the Company, par value $0.01 per share (the “Shares”), pursuant to the Ruth’s Chris Steakhouse, Inc. 2005 Long-Term Equity Incentive
Plan (the “2005 Plan”) and Ruth’s Chris Steak House, Inc. 2000 Stock Option Plan (the “2000 Plan” and together with the 2005 Plan, the “Plans”).
For purposes of this letter, we have examined originals, or copies certified or otherwise identified to our satisfaction, of
such documents, records, certificates, memoranda and other instruments as we have deemed necessary as a basis for this opinion, including: (i) the Company’s Amended and Restated Certificate of Incorporation; (ii) the Company’s Amended and
Restated Bylaws (the “Bylaws”); (iii) certain resolutions adopted by the Company’s board of directors; (iv) the 2005 Plan; (v) the 2000 Plan; and (vi) the forms of Stock Option Agreements entered into in connection with the Plans.
For purposes of this opinion, we have assumed the authenticity
of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as copies and the authenticity of the originals of all documents submitted to us as copies. We have also assumed the legal capacity of
all natural persons, the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, the authority of such persons signing on behalf of the parties thereto and the due authorization, execution
and delivery of all documents by the parties thereto. We relied upon statements and representations of officers and other representatives of the Company and others as to factual matters.
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London
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Los Angeles
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Munich
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New York
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San Francisco
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Washington, D.C.
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Ruth’s Chris Steak House, Inc.
August 19, 2005
Page 2
Based upon and subject to the assumptions and limitations stated in this
letter, it is our opinion that the Shares are duly authorized and, when (i) the Registration Statement related to the Shares becomes effective under the Act, (ii) the Shares have been duly issued in accordance with the terms of the Plans upon
receipt of the consideration to be paid therefor (assuming in each case the consideration received by the Company is at least equal to $0.01 per share), and (iii) the certificates representing the Shares comply as to form with the Bylaws and the
Delaware General Corporation Law and bear all necessary signatures and authentications, the Shares will be validly issued, fully paid and nonassessable.
Our opinion expressed above is subject to the qualification that we express no opinion as to the applicability of, compliance with, or effect of any laws
except Delaware corporate law (including the statutory opinions, all applicable provisions of the Delaware constitution and reported judicial decisions interpreting the foregoing).
We have relied without independent investigation upon an assurance from the Company that the number of Shares which the
Company is authorized to issue in its Amended and Restated Certificate of Incorporation exceeds the number of shares outstanding and the number of shares which the Company is obligated to issue (or had otherwise reserved for issuance) for any
purposes other than issuances in connection with the Plans by at least the number of Shares which may be issued in connection with the Plans, and we have assumed that such condition will remain true at all future times relevant to this opinion. We
have assumed that the Company will cause certificates representing Shares issued in the future to be properly executed and delivered and will take all other actions appropriate for the issuances of such Shares. Our opinion assumes that the
Registration Statement related to the Shares will become effective under the Act before any Shares covered by such Registration Statement are sold.
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not
thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
We do not find it necessary for the purposes of this opinion, and accordingly we do not purport to cover herein, the application of the securities or
“Blue Sky” laws of the various states to the issuance and sale of the Shares.
This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein.
Ruth’s Chris Steak House, Inc.
August 19, 2005
Page 3
This opinion is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise relied upon for any other purpose.
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Sincerely,
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/s/ Kirkland & Ellis LLP
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KIRKLAND & ELLIS LLP
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