<PAGE> COVER
<PAGE>
As filed with the Securities and Exchange Commission on April 17, 1998
Registration No. ___________
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 59-3061413
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
550 North Reo Street, Suite 200, Tampa, FL 33609, Tel: (813) 282-1225
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
JOSEPH J. KADOW, VICE PRESIDENT
Outback Steakhouse, Inc.
550 North Reo Street, Suite 200, Tampa, FL 33609, Tel: (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. [ ]
<TABLE>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Each Class of Amount to Offering Aggregate Amount of
Securities to be be Price Per Offering Registra-
Registered Registered Share (F1) Price tion Fee
<S> <C> <C> <C> <C>
Common Stock, $.01 par 46,346 $39.0625 $1,810,390.63 $534.07
value
<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 April 16, 1998, of the
Registrant's Common Stock as reported on the NASDAQ National Market
System.
</FN>
</TABLE>
The Company hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Company
should file a further amendment which specifically states that this
Registration Statement shall 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.
<PAGE>
PROSPECTUS Subject to Completion
April 17, 1998
OUTBACK STEAKHOUSE, INC.
46,346 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 a stockholder of the Company (the
"Selling Stockholder"). See "Selling Stockholder." Shares may be
offered until __________, 1998 [45 days after the date of the
Prospectus] for the account of the Selling Stockholder. See "The
Offering." The Company will not receive any proceeds from the sale
of Common Stock by the Selling Stockholder. The Company's Common
Stock is traded on the NASDAQ National Market System under the symbol
"OSSI." On __________, 1998, the last reported sale price of the
Common Stock was $______ per share.
---------------------------------
The distribution of shares of Common Stock by the 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, 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 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 the Selling Stockholder
and/or purchasers of shares for whom they may act as agent (which
compensation may be in excess of customary commissions). The Selling
Stockholder 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" beginning on Page 5 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] ___, 1998.
RED HERRING
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.
<PAGE>
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, NW, 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, NW, Washington, D.C. 20549, at prescribed rates. The
Commission maintains a Web site that contains reports, proxy and
information statements and other information regarding registrants
that file electronically with the Commission. The address of such
Web site is http://www.sec.gov. The Company's Common Stock is
traded in the NASDAQ National Market System under the symbol
"OSSI." Information regarding the Company may also be inspected at
such exchange.
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, 1997.
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
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<PAGE>
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.
THE OFFERING
Up to 46,346 shares may be offered from time to time
until__________, 1998 [45 days after the date of this Prospectus]
for the account of the Selling Stockholder. See "Selling
Stockholder."
THE COMPANY
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.
As of December 31, 1997, the Company's Outback Steakhouse(R)
restaurant system included 459 full-service restaurants, 72 of
which are franchised to unaffiliated domestic franchisees and 14 of
which were franchised to unaffiliated international franchisees.
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;
3<PAGE>
. 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 for the majority of its
locations(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, 1997, the Company's Carrabba's Italian
Grill(R) concept included 60 full-service restaurants, 11 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 Italian cuisine
including a variety of pastas, chicken, seafood, veal and wood-
fired pizza. The restaurants also offer specialty appetizers,
desserts, coffees and full liquor service.
In the fourth quarter of 1997, the Company recorded a pre-tax
charge to earnings of $26,001,000 which included approximately
$23,113,000 for the write down of certain impaired assets and
$2,888,000 related to restaurant closings, severance and other
costs. The write down primarily related to Carrabba's restaurant
properties, nine of which were closed during the fourth quarter of
1997.
4
<PAGE>
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 approximately 80-95
Outback Steakhouse(R) restaurants in 1998 and 1999, of which 50 to 55
are expected to be Company owned, 15 to 20 of which are expected to
be operated by domestic franchisees, and 15 to 20 of which are
expected to be operated by international franchisees. The Company
expects to open approximately 8-10 Carrabba's Italian Grill(R)
restaurants in 1998 and 1999, the majority of which will be Company
owned and located in existing markets where it has demonstrated
success. 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, demo-
graphic 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
5
<PAGE>
adversely affect the restaurant industry in general and the
Company's restaurants in particular.
Dependence on Personnel
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, retain and motivate additional skilled management and
operating personnel. Failure by the Company to attract and retain
such employees in the future could have an adverse effect on the
Company's operations.
Government Regulation
The Company is subject to various federal, state and local
laws affecting its business. Each of the Company's restaurants is
subject to licensing and regulation by a number of governmental
authorities, which may include alcoholic beverage control, health
and safety and fire agencies in the state or municipality in which
the restaurant is located. Difficulties in obtaining or failures to
obtain the required licenses for approvals could delay or prevent
the development of a new restaurant in a particular area.
Approximately 14.2% of the Company's revenues is attributable
to the sale of alcoholic beverages. Alcoholic beverage control
regulations require each of the Company's restaurants to apply to
a state authority and, in certain locations, county or municipal
authorities for a license or permit to sell alcoholic beverages on
the premises and to provide service for extended hours and on
Sundays. Typically, licenses must be renewed annually and may be
revoked or suspended for cause at any time. Alcoholic beverage
control regulations relate to numerous aspects of daily operations
of the Company's restaurants, including minimum age of patrons and
employees, hours of operation, advertising, wholesale purchasing,
inventory control and handling, storage and dispensing of alcoholic
beverages. The failure of a restaurant to obtain or retain liquor
or food service licenses would adversely affect the restaurant's
operations.
The Company may be subject in certain states to "dram-shop"
statutes, which generally provide a person injured by an
intoxicated person the right to recover damages from an
establishment that wrongfully served alcoholic beverages to the
intoxicated person. The Company carries liquor liability coverage
as part of its existing comprehensive general liability insurance
and has never been named as a defendant in a lawsuit involving
"dram-shop" statutes.
The Company's restaurant operations are also subject to
federal and state minimum wage laws governing such matters as
working conditions, overtime and tip credits. Significant numbers
6
<PAGE>
of the Company's food service and preparation personnel are paid at
rates related to the federal minimum wage and, accordingly, further
increases in the minimum wage could increase the Company's labor
costs.
The Americans With Disabilities Act prohibits discrimination
in employment and public accommodations on the basis of disability.
The Act became effective in January 1992 with respect to public
accommodation and July 1992 with respect to employment. Under the
Act, the Company could be required to expend funds to modify its
restaurant to provide service to, or make reasonable accommodations
for the employment of, disabled persons.
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 200,000,000 shares of Common Stock, $0.01 par value per
share, of which 48,559,385 shares were issued and outstanding as of
March 18, 1998, and approximately 4,830,198 were reserved for
issuance to approximately 480 current and former employees, seven
non-employee 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 thirteen 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 distribu-
tion 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 redemp-
tion 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.
7
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Preferred Stock
The Certificate authorizes 2,000,000 shares of Preferred
Stock, $0.01 par value, none of which were outstanding as of April
17, 1998. 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 19.63% 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 April 8, 1998, 48,670,912 shares of Common Stock were
issued and outstanding. Of those,3,754,451 were non-registered
shares ("Restricted Shares") that were issued since December 31,
1995, in connection with reorganizations entered into by the
Company. 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.
In general, under Rule 144 a stockholder (or stockholders
whose shares are aggregated) who has beneficially owned for at
least one year 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
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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 486,709 shares at April 8, 1997) 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 two years is entitled to sell such shares under
Rule 144 without regard to the volume and manner of sale
limitations described above.
SELLING STOCKHOLDER
Pursuant to an Agreement and Plan of Reorganization (the
"Agreement") with Hood & Associates, Inc. ("H&A"), dated November
1, 1997, the Company issued 231,725 shares of Common Stock to the
sole shareholder of H&A(the "Selling Stockholder"). Prior to the
reorganization, H&A owned a 9% interest in the Outback/Charlotte-I
Limited Partnership which owned and operated 28 Outback Steakhouse(R)
restaurants located in the States of North Carolina and South
Carolina. Under the terms of the Agreement, 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 Selling
Stockholder, and to keep such registration statement effective for
a period not to exceed 45 days from the date of this Prospectus.
Accordingly, 46,346 shares of Common Stock covered by this
Prospectus are being offered for sale by the Selling Stockholder.
The number of shares being offered by the Selling Stockholder
is governed by the preexisting agreements between the Selling
Stockholder 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 April 8, 1998, and as
adjusted to reflect the assumed sale of all of the shares offered
hereby by the Selling Stockholder.
<TABLE>
Shares Number of Shares
Beneficially Shares Beneficially
Owned Prior to Being Owned After the
Offering Offered Offering
<S> <C> <C> <C> <C> <C>
Number Percent Number Percent
Hood, Dennis(F1) 231,725 0.4761 46,346 185,379 0.3809
Total Shares
Offered 46,346
<FN>
(1) Mr. Hood is employed by the Company as a Regional JV Partner
and oversees the operations of the Company's restaurants in North
and South Carolina.
9
<PAGE>
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. The 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 the Selling
Stockholder and/or purchasers of shares for whom they may act as
agent (which compensation may be in excess of customary
commissions). The 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.
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, 1997 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 their authority as experts in
accounting and auditing.
10
<PAGE>
No dealer, salesman, or other
person has been authorized to give
any information or to make any OUTBACK STEAKHOUSE, INC.
representations other than those
contained in this Prospectus, and,
if given or made, such information 46,346 SHARES
or representations must not be
relied upon as having been so
authorized. This Prospectus does
not constitute an offer to sell or a COMMON STOCK
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 PROSPECTUS
shall, under any circumstances, ----------
create any implication that there
has been no change in the affairs
of the Company since the date
hereof or that the information
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 . . . . . . . . . . . . . . . . . 5
Growth Strategy . . . . . . . . . . . . . . 5
Competition . . . . . . . . . . . . . . . . 5 [April __, 1998]
Dependence on Personnel . . . . . . . . . . 6
Government Regulation . . . . . . . . . . . 6
Use of Proceeds . . . . . . . . . . . . . . . . 7
Description of Capital Stock. . . . . . . . . . 7
Shares Eligible for Future
Sale. . . . . . . . . . . . . . . . . . . . 8
Selling Stockholder . . . . . . . . . . . . . . 9
Plan of Distribution. . . . . . . . . . . . . . 10
Legal Matters . . . . . . . . . . . . . . . . . 10
Experts . . . . . . . . . . . . . . . . . . . . 10
<PAGE>
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 Stockholder 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.
SEC registration fee $ 534.07
Accounting fees and expenses 500.00*
Legal fees and expenses 500.00*
Blue Sky fees and expenses (including counsel fees) 0.00*
Printing expenses 100.00*
Transfer agent's and registrar's fees and expenses 200.00*
Miscellaneous expenses 200.00*
--------
Total $2,034.07*
=========
*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
II-1
<PAGE>
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 Indemnifi-
cation 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 that 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
that is adjudicated to have been in violation of law, and in
certain other circumstances.
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 regard-
less 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 require-
ment is not contained in the contracts.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "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
II-2
<PAGE>
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.
Exhibit
Number Description
2.1 Agreement and Plan of Reorganization, dated November 1,
1997, among Outback Steakhouse, Inc., Outback Steakhouse
of Florida, Inc., Hood & Associates, Inc. and Dennis Hood
(included as an exhibit to the Registrant's Annual Report
on Form 10-K for the year ended December 31, 1997 and
incorporated herein by reference).
3.1 Certificate of Incorporation of the Company (included as
an exhibit to Registrant's Registration Statement of Form
S-1, No. 33-40255, and incorporated herein by reference).
3.2 Bylaws of the Company (included as an exhibit to
Registrant's Registration Statement of Form S-1, No. 33-
40255, 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-6).
II-3
<PAGE>
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 of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (i) 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 Section 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 of 1933, each such 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 of
1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Act of 1934) that is incorporated by reference in the Registration
II-4
<PAGE>
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 of 1933, the information omitted from the form of
prospectus filed as part of this Registration Statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, 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.
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 April, 1998.
OUTBACK STEAKHOUSE, INC.
By:/s/Joseph J. Kadow
Joseph J. Kadow,
Vice President and Secretary
II-5
<PAGE>
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that 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 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.
Name Title Date
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Chris T. Sullivan
Chris T. Sullivan Chairman, Chief Executive April 17, 1998
Officer, and Director
(Principal Executive Officer)
/s/ Robert S. Merritt
Robert S. Merritt Senior Vice President, Chief April 17, 1998
Financial Officer, Treasurer,
and Director (Principal
Financial Officer, and
Principal Accounting Officer)
/s/ Robert D. Basham
Robert D. Basham President, Chief Operating April 17, 1998
Officer, and Director
/s/ J. Timothy Gannon
J. Timothy Gannon Senior Vice President April 17, 1998
and Director
/s/ Edward L. Flom
Edward L. Flom Director April 17, 1998
II-6<PAGE>
/s/ John A. Brabson, Jr.
John A. Brabson, Jr. Director April 17, 1998
/s/ Charles H. Bridges
Charles H. Bridges Director April 17, 1998
/s/ W. R. Carey, J.
W. R. Carey, Jr. Director April 17, 1998
/s/ Lee Roy Selmon
Lee Roy Selmon Director April 17, 1998
/s/ Nancy Schneid
Nancy Schneid Director April 17, 1998
Vice President-Marketing
of Outback Steakhouse of
Florida, Inc.
/s/ Debbi Fields
Debbi Fields Director April 17, 1998
II-7
<PAGE>
/s/ Toby S. Wilt
Toby S. Wilt Director April 17, 1998
/s/ Paul E. Avery
Paul E. Avery Director April 17, 1998
II-8
</TABLE>
EXHIBIT 2.1 Agreement and Plan of Reorganization, dated November 1,
1997, among Outback Steakhouse, Inc., Outback Steakhouse
of Florida, Inc., Hood & Associates, Inc. and Dennis Hood
(included as an exhibit to the Registrant's Annual Report
on Form 10-K for the year ended December 31, 1997 and
incorporated herein by reference).
EXHIBIT 3.1 Certificate of Incorporation of the Company (included as
an exhibit to Registrant's Registration Statement of Form
S-1, No. 33-40255, and incorporated herein by reference).
EXHIBIT 3.2 Bylaws of the Company (included as an exhibit to
Registrant's Registration Statement of Form S-1, No. 33-
40255, 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).
BAKER
&
HOSTETLER LLP
3200 National City Center
1900 East 9th Street
Cleveland, Ohio 44114-3445
216/621-0200 Fax 216/696-0740
April 16, 1998
Outback Steakhouse, Inc.
Suite 200
550 North Reo Street
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 46,346 shares of the Company's
Common Stock, $.01 par value (the "Shares"), all of which Shares are
being offered for the account of a certain selling stockholder 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. In giving our consent, we do not hereby admit
that we are in the category of persons whose consent is required under
Section 7 of the Securities Act of 1933 or the rules and regulations of
the Securities and Exchange Commission.
Very truly yours,
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).
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 20, 1998, incorporated by reference
in the Annual Report on Form 10-K of the Company for the year
ended December 31, 1997 and to the reference to us under the
heading "Experts" in the Prospectus, which is part of this
Registration Statement.
DELOITTE & TOUCHE
Tampa, Florida
April 17, 1998
EXHIBIT 24.1 Power of Attorney (found in Part II on Page II-6).
