As filed with the Securities and Exchange Commission on June 17, 2014

                Registration No. 333-

united states
SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

 

FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933

 

 

RUTH’S HOSPITALITY GROUP, INC.

(Exact name of registrant as specified in its charter)

 

 

Delaware
(State or other jurisdiction of
incorporation or organization)

 

1030 W. Canton Avenue, Suite 100, Winter Park, FL

 

(Address of Principal Executive Offices)

 

72-1060618
(I.R.S. Employer
Identification No.)


32789

(Zip Code)

 

Ruth’s Hospitality Group, Inc. Amended and Restated 2005 Long-Term Equity Incentive Plan

(Full title of the plan)

 

Michael P. O’Donnell
President and Chief Executive Officer
Ruth’s Hospitality Group, Inc.
1030 W. Canton Avenue, Suite 100
Winter Park, Florida 32789
(407) 333-7440
(Name and address of agent for service and telephone number, including area code, of agent for service)

 

Copies to:

 

James S. Rowe
Kirkland & Ellis LLP
300 N. LaSalle
Chicago, Illinois 60654
(312) 862-2000

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act (Check one):

 

Large accelerated filer ☐  

Accelerated filer ☒  

Non-accelerated filer ☐  

Smaller reporting company ☐

   

(Do not check if a smaller reporting company)

 

 

 
 
 

 

CALCULATION OF REGISTRATION FEE

Title of securities to be registered

Amount to be
registered(1)

Proposed maximum
offering price per
share(2)

Proposed maximum
aggregate offering
price(2)

Amount of
registration
fee

Common Stock, $0.01 par value per share

2,000,000 (3)

$12.405

$24,810,000

$3,195.53

(1)

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 because 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 the outstanding shares of common stock.

 

(2)

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 Global Select Market on June 13, 2014 solely for the purpose of calculating the registration fee.

 

(3)

Reflects an amendment to the Ruth’s Hospitality Group, Inc. Amended and Restated 2005 Long-Term Equity Incentive Plan to increase the number of shares of common stock reserved for issuance under the plan, which amendment was approved by stockholders at the Annual Meeting of Stockholders of Ruth’s Hospitality Group, Inc. held on May 30, 2013.

 

 

 
- 2 - 
 

 

PART I


INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Item 1.

Plan Information.

 

The documents containing the information specified in Part I will be delivered in accordance with Form S-8 and Rule 428(b) 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.

 

Item 2.

Registrant Information and Employee Plan Annual Information.

 

The written statement required by Item 2 of Part I is included in documents delivered to participants in the plans covered by this Registration Statement pursuant to Rule 428(b) of the Securities Act.

 

 
 
 

 

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 Hospitality Group, Inc. (the “Company”) with the Commission, are incorporated in this Registration Statement by reference:

 

 

(a)

The Company’s Annual Report on Form 10-K for the fiscal year ended December 29, 2013, filed with the Commission on March 11, 2014;

 

 

(b)

The Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 30, 2014, filed with the Commission on May 6, 2014;

 

 

(c)

The Company’s Current Report on Form 8-K, filed with the Commission on June 2, 2014; and

 

 

(d)

The description of the Company’s common stock, $0.01 par value per share, contained in the Registration Statement on Form 8-A dated August 9, 2005 filed with the Commission to register such securities under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description.

 

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 (other than Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 of Form 8-K, including any exhibits included with such information, unless otherwise indicated therein) 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.

 

The Company is incorporated under the laws of the State of Delaware. Section 102(b)(7) of the General Corporation Law of the State of Delaware (the “DGCL”) allows a corporation to provide in its certificate of incorporation that a director of the corporation will not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached the duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. The Company’s amended and restated certificate of incorporation provides for this limitation of liability.

 

 
II-1
 

 

Section 145 of the DGCL (“Section 145”), 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 attorneys’ 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 or her 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 reason 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 or her against the expenses which such officer or director has actually and reasonably incurred.

 

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 or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify him or her under Section 145.

 

The Company’s amended and restated certificate of incorporation provides that the Company must indemnify its 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 Company maintains insurance to protect it and its directors and officers against any expense, liability or loss, whether or not the Company would have the power to indemnify such persons against such expense, liability or loss under applicable law.

 

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 the Company’s amended and restated certificate of incorporation, the Company’s restated bylaws, agreement, vote of stockholders or disinterested directors or otherwise.

 

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.

 

 
II-2
 

 

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 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 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.

 

(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.

 

 
II-3
 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Winter Park, State of Florida, on June 17, 2014.

 

 

RUTH’S HOSPITALITY GROUP, INC.  

 

 

 

 

 

 

 

 

 

 

By:

/s/ Michael P. O’Donnell

 

 

 

Name: Michael P. O’Donnell  

 

 

 

Title:   Chairman of the Board, President and

            Chief Executive Officer

 

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby severally constitutes and appoints Michael P. O’Donnell, Arne G. Haak and John F. McDonald, III, and each of them individually, with full power of substitution and resubstitution, his or her true and lawful attorney-in fact and agent, with full powers to each of them to sign for us, in our names and in the capacities indicated below, the Registration Statement on Form S-8 and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and any and all amendments to said Registration Statement (including post-effective amendments), granting unto said attorneys, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as each of them might or could do in person, and hereby ratifying and confirming all that said attorneys, and each of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue of this Power of Attorney. This Power of Attorney may be executed in counterparts and all capacities to sign any and all amendments.

 

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signatures

 

Title

 

Date

         

/s/ Michael P. O’Donnell

 

Chairman of the Board, President and Chief

 

June 17, 2014

Michael P. O’Donnell  

Executive Officer (principal executive officer)

   
         

/s/ Arne G. Haak

 

Executive Vice President and Chief Financial

 

June 17, 2014

Arne G. Haak   Officer  (principal financial officer)      
         

/s/ Mark W. Osterberg

 

Vice President of Accounting and Chief  

 

June 17, 2014

Mark W. Osterberg   Accounting Officer  (principal accounting officer)    
         

/s/ Robin P. Selati

 

Lead Director

 

June 17, 2014

Robin P. Selati        
         

/s/ Carla R. Cooper

 

Director

 

June 17, 2014

Carla R. Cooper        
         

/s/ Bannus B. Hudson

 

Director

 

June 17, 2014

Bannus B. Hudson        
         

/s/ Robert S. Merritt

 

Director

 

June 17, 2014

Robert S. Merritt        
         

/s/ Alan Vituli

 

Director

 

June 17, 2014

Alan Vituli        

 

 
II-4
 

 

EXHIBIT INDEX

 

Exhibit
Number

 

Description

4.1

 

Specimen of certificate representing common stock, par value $0.01 per share (incorporated herein by reference to Exhibit 4.1 of the Company’s Registration Statement on Form S-1, as filed with the Commission on August 3, 2005, as amended).

     

4.2

 

Certificate of Amended and Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 3.1 to the Company’s Form 10-K, as filed with the Commission on March 5, 2010).

     

4.3

 

Restated By-Laws (incorporated herein by reference to Exhibit 3.2 of the Company’s Registration Statement on Form S-1, as filed with the Commission on July 12, 2005, as amended).

     

4.4

 

Ruth’s Hospitality Group, Inc. Amended and Restated 2005 Long-Term Equity Incentive Plan (incorporated herein by reference to Appendix A of the Company’s Definitive Proxy Statement, as filed with the Commission on April 19, 2013).

     

5.1

 

Opinion of Kirkland & Ellis LLP with respect to the legality of the shares of common stock being registered hereby.

     

23.1

 

Consent of KPMG LLP.

     

23.2

 

Consent of Kirkland & Ellis LLP (included in Exhibit 5.1).

     

24.1

 

Power of Attorney (set forth on the signature page of this Registration Statement).

 


 

300 North LaSalle Street
Chicago, Illinois 60654

 

     

 

312 862-2000

 

www.kirkland.com

Facsimile:
312 862-2200

 

 

Exhibit 5.1

 

June 17, 2014

 

Ruth’s Hospitality Group, Inc.
1030 West Canton Avenue, Suite 100
Winter Park, FL 32789

 

 

Re:     Shares of common stock, $0.01 par value

 

Ladies and Gentlemen:

 

We have acted as special counsel to Ruth’s Hospitality Group, Inc., a Delaware corporation (the “Registrant”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), of a Registration Statement on Form S-8 (the “Registration Statement”) pertaining to the registration of a proposed issuance of up to an aggregate of 2,000,000 shares (the “Shares”) of the Registrant’s common stock, $0.01 par value per share, pursuant to the Registrant’s Amended and Restated 2005 Long-Term Equity Incentive Plan (the “Plan”).

 

This opinion is delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.

 

We have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates and other instruments as we have deemed necessary for the purposes of this opinion, including: (i) the Amended and Restated Certificate of Incorporation and the Restated By-Laws of the Registrant; (ii) certain resolutions adopted by the Board of Directors of the Registrant; (iii) the Plan; (iv) the forms of option agreements and restricted stock agreements between the Registrant and the employees used in connection with the Plan; and (v) and a certificate from an officer of the Registrant to us dated as of the date hereof. In addition, we have made such other investigations as we have deemed necessary to enable us to express the opinion hereinafter set forth.

 

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 have not independently established or verified any facts relevant to the opinion expressed herein, but have relied upon statements and representations of officers and other representatives of the Registrant and others as to factual matters.

 

 
 
 

 

 

Ruth’s Hospitality Group, Inc.

June 17, 2014

Page 2

 

 

 

Based upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set forth below, we are of the opinion that when the Shares have been issued and consideration received therefor by the Registrant in accordance with the terms of the Plan, the Shares will be validly issued, fully paid and nonassessable.

 

Our opinions expressed above are subject to the qualifications that we express no opinion as to the applicability of, compliance with, or effect of any laws except the General Corporation Law of the State of Delaware (including the statutory provisions, all applicable provisions of the Delaware constitution and reported judicial decisions interpreting the foregoing). Our advice on any legal issue addressed in this letter represents our opinion as to how that issue would be resolved were it to be considered by the highest court in the jurisdiction which enacted such law. The manner in which any particular issue would be treated in any actual court case would depend in part on facts and circumstances particular to the case, and this letter is not intended to guarantee the outcome of any legal dispute which may arise in the future.

 

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 Securities 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. This letter speaks as of the time of its delivery on the date it bears. We assume no obligation to revise or supplement this opinion should the General Corporation Law of the State of Delaware be changed by legislative action, judicial decision or otherwise.

 

Sincerely,

 

/s/ Kirkland & Ellis LLP

 

Kirkland & Ellis LLP

 

 

Exhibit 23.1

 

 

 

Consent of Independent Registered Public Accounting Firm

 

 

The Board of Directors
Ruth’s Hospitality Group, Inc.:

 

We consent to the incorporation by reference in the registration statement on Form S-8 of Ruth’s Hospitality Group, Inc. of our reports dated March 11, 2014, with respect to the consolidated balance sheets of Ruth’s Hospitality Group, Inc. as of December 29, 2013 and December 30, 2012, and the related consolidated statements of income, shareholders’ equity, and cash flows for each of the fiscal years in the three year period ended December 29, 2013, and the effectiveness of the internal control over financial reporting as of December 29, 2013, which reports are included in the Annual Report on Form 10-K for the year ended December 29, 2013 of Ruth’s Hospitality Group, Inc.

 

/s/ KPMG LLP

 

Orlando, Florida          

 

June 16, 2014

 

Certified Public Accountants