<PAGE> COVER
SECURITIES AND EXCHANGE COMMISSION
Form S-3
Registration Statement under The Securities Act of 1933
OUTBACK STEAKHOUSE, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation
or organization)
59-3061413
(I.R.S. Employer Identification No.)
550 North Reo Street, Suite 200
Tampa, Florida 33609, Telephone: (813) 282-1225
(Address, including zip code, and telephone number,
including area code, of registrant's
principal executive offices)
ROBERT S. MERRITT, SR. VICE PRESIDENT
Outback Steakhouse, Inc.
550 North Reo Street, Suite 200
Tampa, Florida 33609, Telephone: (813) 282-1225
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
COPY TO:
JOHN M. GHERLEIN, ESQ.
Baker & Hostetler LLP
1900 East 9th Street, Suite 3200
Cleveland, Ohio 44114-3435
Telephone (216) 861-7398
Approximate date of commencement of proposed sale to the public:
As soon as practicable 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. _X_
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 delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. ___
The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states
that this registration statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until
the registration statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Each Class Amount Offering Aggregate Amount of
of Securities to be Price Offering Registration
to be Registered Registered Per Share <F1> Price Fee
<S> <C> <C> <C> <C>
Common Stock, par value $.01 330,646 $24.125 $7,976,835 $2,751
<FN>
<F1> Estimated pursuant to Rule 457(c) solely for the purpose of
calculating the registration fee. The proposed maximum offering price
per share and the proposed maximum aggregate offering price are based
on the average of the high and low sale prices on January 20, 1997, of
the Registrant's Common Stock as reported on the NASDAQ National
Market System.
</FN>
</TABLE>
RED HERRING LEGEND
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT.
A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT
BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE
REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR
SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH
OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
PROSPECTUS
Subject to completion
March 20, 1997
OUTBACK STEAKHOUSE, INC.
330,646 Shares
Common Stock, $.01 par value
This Prospectus relates to shares of Common Stock of Outback
Steakhouse, Inc. (the "Company") which may be offered for sale from
time to time for the account of certain stockholders of the Company
(the "Selling Stockholders"). See "Selling Stockholders." Shares may
be offered until May ___, 1997 [45 days after the date of the
Prospectus] for the account of the Selling Stockholders. See "The
Offering." The Company will not receive any proceeds from the sale of
Common Stock by the Selling Stockholders. The Company's Common Stock
is traded on the NASDAQ National Market System under the symbol
"OSSI." On March ___, 1997, the last reported sale price of the
Common Stock was $______ per share.
________________________
The distribution of shares of Common Stock by the Selling
Stockholders may be effected from time to time in one or more
transactions (which may involve block transactions) in the over-the-counter
market, on the NASDAQ National Market System, or on any
exchange on which the Common Stock may then be listed in negotiated
transactions, through the writing of options on shares (whether such
options are listed on an options exchange or otherwise), or a combina-
tion of such methods of sale, at market prices prevailing at the time
of sale, at prices related to such prevailing market prices, or at
negotiated prices. The Selling Stockholders may effect such
transactions by selling shares to or through broker-dealers, and such
broker-dealers may receive compensation in the form of underwriting
discounts, concessions or commissions from the Selling Stockholders
and/or purchasers of shares for whom they may act as agent (which
compensation may be in excess of customary commissions). The Selling
Stockholders also may pledge shares as collateral for margin accounts
and such shares could be resold pursuant to the terms of such
accounts.
All expenses of the registration of the Common Stock covered by
this Prospectus will be borne by the Company pursuant to preexisting
agreements, except that the Company will not pay (i) any Selling
Stockholder's underwriting discounts or selling commissions, or (ii)
fees and expenses of any Selling Stockholder's counsel.
SEE "RISK FACTORS" AT PAGE 4 FOR A DISCUSSION OF CERTAIN RISK
FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS.
________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is [April ___], 1997.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and in accordance
therewith files reports and other information with the Securities and
Exchange Commission (the "Commission"). Such reports and other
information (including proxy and information statements) filed by the
Company can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, and at the following Regional Offices of the
Commission: New York Regional Office, 7 World Trade Center, Suite
1300, New York, New York 10007; and Chicago Regional Office, 500 West
Madison Street, 14th Floor, Chicago, Illinois 60661. Copies of such
material can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates.
This Prospectus constitutes a part of a Registration Statement
filed by the Company with the Commission under the Securities Act of
1933, as amended (the "Securities Act"). This Prospectus does not
contain all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the
rules and regulations of the Commission. Reference is hereby made to
the Registration Statement and related exhibits for further
information with respect to the Company and the Common Stock.
INCORPORATION OF
CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission
pursuant to the Exchange Act are hereby incorporated by reference in
this Prospectus:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995;
(2) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996;
(3) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1996; and.
(4) The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1996.
All reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date
of this Prospectus and prior to the termination of this offering shall
be deemed to be incorporated by reference into this Prospectus and
shall be deemed to be a part hereof from the respective dates of
filing of such reports and other 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 all purposes
to the extent that a statement contained in this Prospectus or in any
other subsequently filed document that is also incorporated by
reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company will furnish without charge to each person to whom
this Prospectus is delivered, upon written or oral request, a copy of
any and all documents incorporated by reference in this Prospectus
(other than exhibits to such documents unless such exhibits are
incorporated by reference therein). Requests for such copies should
be directed to Outback Steakhouse, Inc., 550 North Reo Street, Suite
200, Tampa, Florida 33609, Attention: Robert S. Merritt, Sr. Vice
President, Telephone (813) 282-1225.
Outback Steakhouse(R) is a registered service mark and Bloomin'
Onion(R) is a registered trademark of Outback Steakhouse, Inc.
THE OFFERING
Up to 330,646 shares may be offered from time to time until May
__, 1997 [45 days after the date of this Prospectus] for the account
of the Selling Stockholders. See "Selling Stockholders." The Company
will not receive any proceeds from the sale of shares covered by this
Prospectus. The Company's Common Stock is traded in the NASDAQ
National Market System under the symbol "OSSI."
THE COMPANY
The Company's Outback Steakhouse(R) restaurant system included
373 full-service restaurants, 55 of which are franchised to
unaffiliated franchisees, at December 31, 1996. The restaurants serve
dinner only and feature a limited menu of high quality, uniquely
seasoned steaks, rack of lamb, prime rib, chops, ribs, chicken, fish,
and pasta. The restaurants also offer specialty appetizers, including
the signature "Bloomin' Onion(R)," desserts and full liquor service.
The Company believes that it differentiates its restaurants by:
* emphasizing consistently high quality ingredients and
preparation of a limited number of menu items that appeal to a broad
array of tastes;
* featuring generous portions at moderate prices;
* attracting a diverse mix of customers through a casual dining
atmosphere emphasizing highly attentive service;
* hiring and retaining experienced restaurant management by
providing general managers the opportunity to purchase a 10% interest
in the restaurants they manage; and
* limiting service to dinner (generally from 4:30 p.m. to 11:00
p.m.), which reduces the hours of restaurant management and employees.
In April 1993, the Company purchased a 50% interest in the cash
flows of two Carrabba's Italian Grill(R) restaurants located in
Houston, Texas (the "Original Restaurants"), and entered into a 50-50
joint venture with the founders of Carrabba's(R) to develop additional
Carrabba's Italian Grill(R) restaurants. In January 1995, the Company
and the Carrabba's(R) founders reached an agreement to reorganize the
Carrabba's(R) concept. Under the terms of the agreement, the founders
obtained sole ownership of the Original Restaurants, and the Company
obtained sole ownership of the Carrabba's(R) concept and the four
restaurants in Florida. The original 50-50 joint venture will
continue to develop restaurants in the State of Texas. The Company
has sole ownership of restaurants outside of Texas, will continue to
develop Carrabba's Italian Grills outside of Texas as Company-owned
restaurants, and will pay royalties to the founders ranging from 1.0%
to 1.5% of sales of Carrabba's(R) restaurants opened after 1994.
As of December 31, 1996, the Company's Carrabba's Italian
Grill(R) concept included 48 full-service restaurants, 12 of which
were operated by joint ventures in which the Company had a 45%
interest. The restaurants have a casual atmosphere, serve dinner
only, and feature a limited menu of high quality classic and specialty
Italian-themed chicken, fish, seafood, veal, steak, pasta, and pizza
entrees. The restaurants also offer appetizers, desserts, and full
liquor service.
The Company was incorporated in October 1987, as Multi-Venture
Partners, Inc., a Florida corporation. In January 1990, the Company
changed its name to Outback Steakhouse, Inc., and in April 1991, the
Company changed its name to Outback Steakhouse of Florida, Inc.
("Outback Florida"). Outback Steakhouse, Inc., a Delaware corporation
("Outback Delaware"), was formed in April 1991, as part of a corporate
reorganization completed in June 1991, in connection with the
Company's initial public offering. As a result, Outback Delaware
became a holding company for Outback Florida. Unless the context
requires otherwise, references to the "Company" or "Outback" mean
Outback Delaware, its wholly owned subsidiaries Outback Florida and
Carrabba's Italian Grill, Inc., and each of the limited partnerships
and joint ventures controlled by the Company. The Company's principal
executive offices are located at 550 North Reo Street, Suite 200,
Tampa, Florida 33609. The Company's telephone number is (813) 282-1225.
RISK FACTORS
Prospective purchasers should carefully consider the following
information in addition to the other information contained in this
Prospectus in evaluating an investment in the Common Stock.
Growth Strategy
The Company has experienced substantial growth and expects to
maintain a rapid pace of development by opening 60 to 75 Outback
Steakhouse(R) restaurants and 20 to 25 Carrabba's Italian Grill(R)
restaurants in 1997. The Company's ability to achieve this restaurant
opening schedule will depend on a number of factors, including the
availability of suitable locations, the ability to hire and train
skilled management personnel, the availability of adequate financing,
and other factors, some of which are beyond the control of the
Company. There can be no assurance that the Company will be able to
continue to open all its planned new restaurants or that, if opened,
those restaurants can be operated profitably or as profitably as the
Company's existing restaurants. Moreover, the opening of additional
restaurants in the same market areas could have the effect of
attracting customers from existing restaurants located in that area.
To date, the Company has not experienced the same level of success in
the development of the Carrabba's(R) restaurant concept as it has
experienced in the development of the Outback Steakhouse(R) restaurant
concept.
Competition
The restaurant industry is intensely competitive with respect to
price, service, location, and food quality, and there are many well-established
competitors with substantially greater financial and other
resources than the Company. Recently there has been increasing
competition developing in the mid-price, full-service, casual dining
segment in which the Company's restaurants operate. A number of these
companies operate steakhouses and have announced their intention to
expand rapidly, including into markets in which the Company's
restaurants are located. Some of the Company's competitors have been
in existence for a substantially longer period than the Company and
may be better established in the markets where the Company's
restaurants are or may be located. The restaurant business is often
affected by changes in consumer tastes, national, regional or local
economic conditions, demographic trends, traffic patterns, and the
type, number, and location of competing restaurants. In addition,
factors such as inflation, increased food, labor and benefits costs,
and the availability of experienced management and hourly employees
may adversely affect the restaurant industry in general and the
Company's restaurants in particular.
Dependence on Management
The success of the Company's business will continue to be highly
dependent upon Messrs. Sullivan, Basham, and Gannon. The loss of the
services of one or more of them could have a materially adverse effect
upon the Company's business and development. The Company's continued
growth also will depend upon its ability to attract and retain
additional skilled management personnel.
Government Regulation
The restaurant business is subject to extensive state and local
government regulation, including those relating to the sale of food
and alcoholic beverages. Failure to comply with licensing and other
regulations would adversely affect restaurant operations. Restaurant
operating costs are adversely affected by increases in the minimum
hourly wage, unemployment tax rates, sales taxes, and mandated benefit
programs, such as health insurance, and similar matters over which the
Company has no control.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the
shares offered hereby.
DESCRIPTION OF CAPITAL STOCK
Common Stock
The Company's Certificate of Incorporation (the "Certificate")
authorizes 100,000,000 shares of Common Stock, $0.01 par value per
share, of which 48,008,688 shares were issued and outstanding as of
December 31, 1996, and approximately 5,149,108 were reserved for
issuance to approximately 356 current and former employees, six
nonemployee directors, and two consultants upon exercise of
outstanding stock options. Holders of Common Stock are entitled to
one vote per share on all matters to be voted upon by the
stockholders. The holders of Common Stock do not have cumulative
voting rights in the election of directors. The Board of Directors
presently consists of twelve members divided into three classes. The
directors of the class elected at each annual meeting of stockholders
hold office for a term of three years. Holders of Common Stock are
entitled to receive dividends when, as and if declared from time to
time by the Board of Directors out of funds legally available
therefor, after payment of dividends required to be paid on
outstanding Preferred Stock, if any. In the event of liquidation,
dissolution or winding up of the Company, the holders of Common Stock
are entitled to share ratably in all assets remaining after payment of
liabilities subject to prior distribution rights of any Preferred
Stock then outstanding. The Common Stock has no preemptive or
conversion rights and is not subject to further calls or assessment by
the Company. There are no redemption or sinking fund provisions
applicable to the Common Stock. All currently outstanding Common
Stock of the Company is duly authorized, validly issued, fully paid,
and nonassessable.
Preferred Stock
The Certificate authorizes 2,000,000 shares of Preferred Stock,
$0.01 par value, none of which were outstanding as of December 31,
1996. The Board of Directors has the authority, without any further
vote or action by the stockholders, to issue Preferred Stock in one or
more series and to fix the number of shares, designations, relative
rights (including voting rights), preferences, and limitations of such
series to the full extent now or hereafter permitted by Delaware law.
The Company has no present intention to issue Preferred Stock.
Anti-Takeover Provisions
Management of the Company currently owns or has the right to
acquire approximately 22.03% of the outstanding Common Stock. The
provisions regarding the division of the Board of Directors into
classes and the ability of the Board of Directors to issue Preferred
Stock as described above may make it more difficult for, and may
discourage other persons or companies from making a tender offer for,
or attempting to acquire, substantial amounts of the Company's Common
Stock. This could have the effect of inhibiting changes in management
and may also prevent temporary fluctuations in the market price of the
Company's Common Stock which often result from actual or rumored
takeover attempts.
Registrar and Transfer Agent
The registrar and transfer agent for the Company's Common Stock
is Bank of New York, New York, New York.
SHARES ELIGIBLE FOR FUTURE SALE
Sales of substantial amounts of Common Stock in the public market
could adversely affect market prices of the Common Stock and make it
more difficult for the Company to sell equity securities in the future
at times and prices which it deems appropriate.
As of December 31, 1996, 48,008,688 shares of Common Stock were
issued and outstanding. Effective April 29, 1997, 38,891,979 shares
will be freely tradeable (assuming all of the 330,646 shares offered
hereby, and the 304,358 shares offered under Prospectus dated February
28, 1997, are sold to nonaffiliates) without restriction or further
registration under the Securities Act. The 9,116,709 remaining shares
("Restricted Shares") may not be sold except in compliance with the
registration requirements of the Securities Act or pursuant to an
exemption from registration such as the exemption provided by Rule 144
under the Securities Act, and then only in compliance with the volume
and manner of sale limitations of Rule 144. Approximately 8,975,857
Restricted Shares owned by affiliates and others currently are
eligible for sale under Rule 144. The remaining 140,852 shares will
be eligible for sale under Rule 144 on June 7, 1997.
In general, until April 29, 1997 under Rule 144 a stockholder (or
stockholders whose shares are aggregated) who has beneficially owned
for at least two years shares privately acquired directly or
indirectly from the Company or from an "affiliate" of the Company, and
persons who are affiliates of the Company, are entitled to sell within
any three-month period a number of shares that does not exceed the
greater of 1% of the outstanding shares of the Company's Common Stock
(approximately 480,087 shares at December 31, 1996) or the average
weekly trading volume in the Company's Common Stock in the over-the-counter
market during the four calendar weeks preceding such sale and
may only sell such shares through unsolicited brokers' transactions.
A stockholder (or stockholders whose shares are aggregated) who has
not been an affiliate of the Company for at least 90 days and who has
beneficially owned his Restricted Stock for at least three years is
entitled to sell such shares under Rule 144 without regard to the
volume and manner of sale limitations described above. Effective
April 29, 1997, the two-year and three-year provisions of Rule 144
will be shortened to one year and two years, respectively.
SELLING STOCKHOLDERS
On December 31, 1995, the Company issued 1,322,580 shares of
Common Stock to the shareholders of 19 corporations serving either as
a franchisee or the sole general partner of a franchisee limited
partnership of the franchisee group commonly known as the Hal Smith
Restaurant Group ("HSG"), which entities owned and operated 19 Outback
Steakhouse(R) franchised restaurants (the "HSG Restaurants") located
in the Great Plains states. The shares were issued in connection with
the merger of the corporations into the Company. Under the terms of
the HSG Agreement and Plan of Reorganization, the Company has agreed
to file a registration statement under the Securities Act to cover the
sale of up to 25% of the shares issued to the former HSG shareholders,
and to keep such registration statement effective for a period not to
exceed 45 days from the date of this Prospectus. Accordingly, 330,646
shares of Common Stock covered by this Prospectus are being offered
for sale by the former HSG shareholders.
The number of shares being offered by the Selling Stockholders
are governed by the preexisting agreements between the Selling
Stockholders and the Company described above. The following table
sets forth certain information with respect to the beneficial
ownership of the Company's Common Stock as of December 31, 1996, and
as adjusted to reflect the assumed sale of all of the shares offered
hereby by the Selling Stockholder.
<TABLE>
<CAPTION>
Shares Beneficially Number of Shares Beneficially
Owned Prior Shares Owned After
to the Offering Being the Offering <F1>
Number Percent Offered Number Percent
<S> <C> <C> <C> <C> <C>
Alston, Geoff and Margaret P. <F2> 45,419 * 15,140 30,279 *
Bishop, William J. 116,536 * 38,845 77,691 *
Brauckmann, David M. 39,970 * 10,493 29,477 *
Elliott, Phillip Donald <F3> 55,969 * 18,656 37,313 *
Lane Resources Trust 379,615 * 94,054 285,561 *
Penshorn, Joseph C. 8,240 * 2,685 5,555 *
Smith, Hal W. 383,774 * 101,258 282,516 *
Trierweiler, Daniel J. 116,535 * 38,845 77,690 *
Williams, Waymon D. 32,008 * 10,670 21,338 *
Total Shares Offered 330,646
____________________
<FN>
<F1> The named stockholder has sole voting and investment power with
respect to the shares shown as being beneficially owned by it, except
as otherwise indicated.
<F2> Mr. Alston is employed by the Company as an Operations Director
and oversees the operations of nine of the former Hal Smith
Restaurants, and receives a management fee for supervising the
operations of these restaurants. In addition, Mr. Alston will develop
new Company-owned Outback Steakhouse(R) restaurants in the midwestern
United States, and will have an ownership interest in the newly
developed restaurants.
<F3> Mr. Elliott is employed by the Company as an Operations Director
and oversees the operations of ten of the former Hal Smith
Restaurants, and receives a management fee for supervising the
operations of these restaurants. In addition, Mr. Elliott will
develop new Company-owned Outback Steakhouse(R) restaurants in the
midwestern United States, and will have an ownership interest in the
newly developed restaurants.
</FN>
</TABLE>
PLAN OF DISTRIBUTION
The distribution of the shares of Common Stock by a Selling
Stockholder may be effected from time to time in one or more
transactions (which may involve block transactions) in the over-the-counter
market, or on the NASDAQ National Market System (or any
exchange on which the Common Stock may then be listed) in negotiated
transactions, through the writing of options (whether such options are
listed on an options exchange or otherwise), or a combination of such
methods of sale, at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at negotiated
prices. A Selling Stockholder may effect such transactions by selling
shares to or through broker-dealers, and such broker-dealers may
receive compensation in the form of underwriting discounts,
concessions or commissions from a Selling Stockholder and/or
purchasers of shares for whom they may act as agent (which
compensation may be in excess of customary commissions). A Selling
Stockholder also may pledge shares as collateral for margin accounts
and such shares could be resold pursuant to the terms of such
accounts.
In order to comply with certain state securities laws, if
applicable, the Common Stock will not be sold in a particular state
unless such securities have been registered or qualified for sale in
such state or any exemption from registration or qualification is
available and complied with.
The Company will not receive any of the proceeds from the sale of
shares of Common Stock by the Selling Stockholders.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be
passed upon for the Company by Baker & Hostetler LLP, Cleveland, Ohio.
EXPERTS
The financial statements incorporated in this Prospectus by
reference from the Company's annual report on Form 10-K for the year
ended December 31, 1995 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which is incorporated
herein by reference and has been so incorporated in reliance upon such
report given upon the authority of that firm as experts in accounting
and auditing.
<PAGE> BACK COVER OF PROSPECTUS
No dealer, salesman, or other
person has been authorized to give
any information or to make any
representations other than those OUTBACK STEAKHOUSE, INC.
contained in this Prospectus, and,
if given or made, such information
or representations must not be relied 330,646 Shares
upon as having been so authorized.
This Prospectus does not constitute an Common Stock
offer to sell or a solicitation of an
offer to buy such securities in any
jurisdiction to any person to whom it
is unlawful to make such an offer or
solicitation in such jurisdiction.
Neither the delivery of this Prospectus
nor any sale hereunder shall, under any PROSPECTUS
circumstances, create any implication
that there has been no change in the
affairs of the Company since the date
hereof or that the information April ___, 1997
contained herein is correct as of any
time subsequent to its date.
TABLE OF CONTENTS
Page
Available Information 2
Incorporation of Certain
Documents by Reference 2
The Offering 3
The Company 3
Risk Factors 4
Use of Proceeds 5
Description of Capital
Stock 5
Shares Eligible for
Future Sale 5
Selling Stockholders 6
Plan of Distribution 7
Legal Matters 8
Experts 8
<PAGE> II-1
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the fees and expenses in
connection with the issuance and distribution of the securities being
registered hereunder. Except for the SEC registration fee, all
amounts are estimates. The Selling Stockholders will pay any transfer
and sales taxes on the shares sold by them in this filing and the fees
and expenses of its own counsel.
<TABLE>
<S> <C>
SEC registration fee $2,751
Accounting fees and expenses 500*
Legal fees and expenses 500*
Blue Sky fees and expenses (including counsel fees) 0*
Printing expenses 100*
Transfer agent's and registrar's fees and expenses 200*
Miscellaneous expenses 200*
Total $4,251*
</TABLE>
*Estimated.
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of
Delaware sets forth the conditions and limitations governing the
indemnification of officers, directors and other persons.
References are made to Article VI of the Registrant's Bylaws, a
copy of which is incorporated herein by reference as Exhibit 3.2,
which provide for indemnification of officers and directors of the
Registrant to the full extent authorized by the aforesaid section of
the General Corporation Law of the State of Delaware. Section 9 of
Article VI of the Bylaws also authorizes the Registrant to purchase
and maintain insurance on behalf of any officer, director, employee,
trustee or agent of the Registrant against any liability asserted
against or incurred by them in such capacity or arising out of their
status as such whether or not the Registrant would have the power to
indemnify such officer, director, employee, trustee or agent against
such liability under the provisions of such article or Delaware law.
Section 102(b) of the General Corporation Law of the State of
Delaware permits corporations to eliminate or limit the personal
liability of a director to the corporation or its stockholders for
monetary damages for breach of the fiduciary duty of care as a
director. Reference is made to Article Eighth of the Registrant's
Certificate of Incorporation, as amended, a copy of which is
incorporated herein by reference as Exhibit 3.1, which limits a
director's liability in accordance with the aforesaid section of the
General Corporation Law of the State of Delaware.
The Registrant has entered into Indemnification Agreements with
its executive officers and directors, a form of which is incorporated
herein by reference as Exhibit 4.2. These Indemnification Agreements
provide that the executive officers and directors will be indemnified
to the fullest extent permitted by law against all expenses (including
attorneys' fees), judgments, fines and amounts paid or incurred by
them for settlement in any action or proceeding, including any
derivative action, on account of their service as a director or
officer of the Company or of any subsidiary of the Company or of any
other company or enterprise in which they are serving at the request
of the Company. No indemnity will be provided to any director or
officer under these agreements on account of conduct which is finally
adjudged to be knowingly fraudulent or deliberately dishonest or
willful misconduct. In addition, no indemnification will be provided
if there is a final adjudication that such indemnification is not
lawful, or in respect of any suit in which judgment is rendered
against a director or officer for an accounting of profits made from
a purchase or sale of securities of the Company in violation of
Section 16(b) of the Securities Exchange Act of 1934, or of any
similar statutory law, or on account of any compensation paid to a
director or officer which is adjudicated to have been in violation of
law, and in certain other circumstances.
<PAGE> II-2
The agreements bind the Company to provide indemnification to
directors and officers whether or not the Company maintains directors'
and officers' liability insurance coverage and regardless of any
future changes in the Bylaws, although the agreements require the
Company to use reasonable efforts to obtain and maintain such
insurance. The protection to be afforded directors and officers by
the agreements is broader than that provided under the indemnification
provisions contained in the Bylaws. Under the agreements, unlimited
indemnification is provided in respect of judgments and amounts paid
in settlement of derivative actions, while under the Bylaws, indemnity
in derivative actions is limited to expenses of the directors or
officers and is provided only if the director or officer is successful
on the merits. Moreover, under the Bylaws, indemnity generally is
permitted only if an individual determination is made that the person
claiming indemnity has met certain specified standards of conduct.
This same requirement is not contained in the contracts.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Securities Act"), may be
permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the 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.
Item 16. Exhibits and Financial Statement Schedules.
<TABLE>
<CAPTION>
Exhibit
Number Description
<S> <C>
2.1 Agreement and Plan of Reorganization, dated December 26,
1995, among Outback Steakhouse, Inc., Outback Steakhouse of
Florida, Inc., Hal W. Smith, William E. Rosenthal, Geoff
Alston, David M. Brauckmann, Don Elliott, Joseph C. Penshorn,
Waymon D. Williams, William J. Bishop, Dan Trierweiler,
OB-Little Rock, Inc., and Lane Resources Trust (included as
an exhibit to Registrant's Current Report on Form 8-K, dated
December 31, 1995, filed January 17, 1996, and incorporated
herein by reference)
4.1 Specimen Stock Certificate (included as an exhibit to the
Registrant's Registration Statement on Form S-1, No.
33-40255, and incorporated herein by reference)
4.2 Form of Indemnification Agreement with officers and directors
(included as an exhibit to the Registrant's Registration
Statement on Form S-1, No. 33-40255, and incorporated herein
by reference)
5 Opinion of Baker & Hostetler, LLP as to the legality of the
shares of Common Stock being registered (filed herewith)
23.1 Consent of Baker & Hostetler, LLP (contained in its opinion
filed herewith as Exhibit 5 and incorporated herein by
reference)
23.2 Consent of Deloitte & Touche LLP (filed herewith)
24.1 Power of Attorney (found in Part II on Page II-5)
<PAGE> II-3
24.2 Certified Resolutions of the Board of Directors authorizing
Power of Attorney (filed herewith)
</TABLE>
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(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;
(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) and (ii) 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 by the
registrant pursuant to Sections 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, 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 Act of 1934) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act 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.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon
Rule 430A and contained H
<PAGE> II-4
in a form of prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this Registration Statement as of the time it was
declared effective.
(2) For the purposes of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
<PAGE> 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
Tampa, State of Florida, on the 17th day of March, 1997.
OUTBACK STEAKHOUSE, INC.
By:/s/ Chris T. Sullivan
Chris T. Sullivan, Chairman
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Chris T. Sullivan,
Robert Merritt and Joseph J. Kadow, or any one of them, his true
and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place,
and stead, in any and all capacities, to sign any and all pre- or
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 attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Chris T. Sullivan Chairman, Chief Executive March 17, 1997
Chris T. Sullivan Officer, and Director
(Principal Executive Officer)
/s/ Robert S. Merritt Senior Vice President, Chief March 17, 1997
Robert S. Merritt Financial Officer, Treasurer,
Assistant Secretary, and
Director (Principal Financial
Officer and Principal
Accounting Officer)
/s/ Robert D. Basham President, Chief Operating March 17, 1997
Robert D. Basham Officer, and Director
<PAGE II-6>
/s/ J. Timothy Gannon Senior Vice President and March 17, 1997
J. Timothy Gannon Director
/s/ Edward L. Flom Director March 17, 1997
Edward L. Flom
/s/ John A. Brabson, Jr. Director March 17, 1997
John A. Brabson, Jr.
/s/ Charles H. Bridges Director March 17, 1997
Charles H. Bridges
/s/ W. R. Carey, Jr. Director March 17, 1997
W. R. Carey, Jr.
/s/ Lee Roy Selmon Director March 17, 1997
Lee Roy Selmon
/s/ Nancy Schneid Director and Vice March 17, 1997
Nancy Schneid President--Marketing
(Outback Steakhouse of
Florida, Inc.)
/s/ Debbi Fields Director March 17, 1997
Debbi Fields
</TABLE>
EXHIBIT 2.1
Agreement and Plan of Reorganization, dated December 26, 1995, among
Outback Steakhouse, Inc., Outback Steakhouse of Florida, Inc., Hal W.
Smith, William E. Rosenthal, Geoff Alston, David M. Brauckmann, Don
Elliott, Joseph C. Penshorn, Waymon D. Williams, William J. Bishop, Dan
Trierweiler, OB-Little Rock, Inc., and Lane Resources Trust (included as
an exhibit to Registrant's Current Report on Form 8-K, dated December 31,
1995, filed January 17, 1996, and incorporated herein by reference)
EXHIBIT 4.1
Specimen Stock Certificate (included as an exhibit to the
Registrant's Registration Statement on Form S-1, No. 33-40255, and
incorporated herein by reference)
EXHIBIT 4.2
Form of Indemnification Agreement with officers and directors
(included as an exhibit to the Registrant's Registration Statement
on Form S-1, No. 33-40255, and incorporated herein by reference)
EXHIBIT 5
BAKER
&
HOSTETLER LLP
3200 National City Center
1900 East 9th Street
Cleveland, Ohio 44114-3435
(216) 621-0200 Fax (216) 696-0740
March 17, 1997
Outback Steakhouse, Inc.
550 North Reo Street, Suite 200
Tampa, FL 33609
Re: Registration Statement on Form S-3
Gentlemen:
As counsel for Outback Steakhouse, Inc., a Delaware corporation (the
"Company"), we are familiar with the Company's Registration Statement on
Form S-3 (the "Registration Statement") being filed with the Securities
and Exchange Commission under the Securities Act of 1933, as amended,
with respect to 330,646 shares of the Company's Common Stock, $.01 par
value (the "Shares"), all of which Shares are being offered for the
account of certain selling stockholders named in the Registration
Statement.
In connection with the foregoing, we have examined the Certificate
of Incorporation, as amended, and the By-Laws of the Company, and such
records of the corporate proceedings of the Company and such other
documents as we have deemed necessary to render this opinion.
Based upon the foregoing examination, we are of the opinion that the
Shares are legally issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the use of our name under the caption
"Legal Matters" in the prospectus which constitutes a part of the
Registration Statement.
Very truly yours,
/s/ Baker & Hostetler LLP
EXHIBIT 23.1
Consent of Baker & Hostetler LLP (contained in its opinion filed herewith
as Exhibit 5 and incorporated herein by reference)
EXHIBIT 23.2
Deloitte & Touche LLP
Suite 1200
201 East Kennedy Boulevard
Tampa, Florida 33602
INDEPENDENT AUDITORS' CONSENT
To the Board of Directors and Stockholders of
Outback Steakhouse, Inc.
Tampa, Florida
We consent to the incorporation by reference in this Registration
Statement of Outback Steakhouse, Inc., (the "Company") on Form S-3 of our
report dated February 21, 1996, incorporated by reference in the Annual
Report on Form 10-K of the Company for the year ended December 31, 1995
and to the reference to us under the heading "Experts" in the Prospectus,
which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Tampa, Florida
March 17, 1997
EXHIBIT 24.1
Power of Attorney (found on Page II-5)
EXHIBIT 24.2
Certificate of Secretary
of
Outback Steakhouse, Inc.
THE UNDERSIGNED, JOSEPH J. KADOW, hereby certifies that:
1. He is the duly elected and acting secretary of OUTBACK
STEAKHOUSE, INC., a Delaware corporation (the "Company");
2. The following is a true, correct, and complete copy of a
resolution of the Board of Directors of the Company adopted by a written
action of directors without a meeting effective as of April 23, 1996:
RESOLVED, each person whose signature appears
below constitutes and appoints Chris T. Sullivan,
Robert S. Merritt, and Joseph J. Kadow, or any
one of them, his true and lawful attorney-in-fact
and agent, with full power of substitution
and resubstitution, for him and in his name,
place, and stead, in any and all capacities, to
sign any and all pre- or post-effective amendments
to the Registration Statement, and to file the
same with all exhibits thereto, and other documents
in connection therewith, with the Commission and
the National Association of Securities Dealers, Inc.,
granting unto said attorneys-in-fact and agents,
and each of them, full power and authority to do and
perform each and every act and thing requisite or
necessary to be done in and about the premises, as
fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes, may lawfully do
or cause to be done by virtue hereof.
3. The above resolution is in full force and effect as of the date
hereof, and has not been amended or modified.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed his name
as of the 21st day of March, 1997.
/s/ Joseph J. Kadow
JOSEPH J. KADOW
