As filed with the Securities and Exchange Commission on June 17, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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LONE STAR STEAKHOUSE & SALOON, INC.
DELAWARE 48-1109495
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
224 EAST DOUGLAS,
SUITE 700
WICHITA, KANSAS 67202
(Address of principal executive offices) (Zip Code)
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OPTIONS TO NON-EMPLOYEES
(Full Title of the Plan)
--------------------
JAMIE B. COULTER
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
LONE STAR STEAKHOUSE & SALOON, INC.
224 EAST DOUGLAS, SUITE 700
WICHITA, KANSAS 67202
(Name and Address of agent for service)
(316) 264-8899
(Telephone number, including area code, of agent for service)
--------------------
WITH A COPY TO:
STEVEN WOLOSKY, ESQ.
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
505 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 753-7200
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Approximate date of proposed sales pursuant to the plan:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share price fee
<S> <C> <C> <C> <C>
Common Stock
par value,
$.01 per 118,767
share (1) (2) shares $10.26 (3) $1,218,537 $369.25
================ =============== ================ ============== ==============
</TABLE>
(1) The contents of Registration Statement on Form S-8 (No. 33-47516) relating
to 1,600,000 shares (after taking into effect two 2 for 1 stock splits)
<PAGE>
issuable upon the exercise of stock options (including 1,200,000 shares issuable
upon the exercise of stock options granted or to be granted pursuant to the 1992
Incentive and Nonqualified Stock Option Plan, as amended (the "Plan")),
Registration Statement on Form S-8 (No. 33-75078) relating to 2,113,800 shares
including 1,800,000 shares issuable upon the exercise of stock options granted
or to be granted pursuant to the Plan and Registration Statement on Form S-8
(No. 333-00280) relating to 4,000,000 shares issuable upon the exercise of stock
options granted or to be granted pursuant to the Plan are incorporated by
reference. On April 25, 1997, the Stock Option Committee of Lone Star Steakhouse
& Saloon, Inc. (the "Company") repriced all options which had then been issued
pursuant to the Plan to an exercise price of $18.25 per share. On September 17,
1997, the Board of Directors of the Company repriced all options which had then
been issued pursuant to the 1992 Directors' Stock Option Plan to an exercise
price of $18.25 per share. In addition, effective December 14,1998, the Board of
Directors of the Company offered optionees, except for Jamie B. Coulter, the
Chairman and Chief Executive Officer of the Company, the opportunity to have
their outstanding stock options re-issued and re-priced (the "Re-issued and
Re-priced Program"). Pursuant to the Re-issued and Re-Priced Program,
outstanding options to purchase 646,000 shares of Common Stock were cancelled
and new options to purchase 283,177 of shares of Common Stock at an exercise
price of $8.00 per share were issued, vesting equally over a three (3) year
period commencing December 14, 1999. Among the options subject to the Re-issued
and Re-priced Program are options to purchase 8,767 shares of Common Stock being
registered in this Registration Statement. (2) There are also registered hereby
such indeterminate number of shares of Common Stock as may become issuable by
reason of the operation of the anti-dilution provisions of the Plan. (3)
Represents the average exercise price of the options exercisable into shares of
Common Stock being registered in this Registration Statement.
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<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
<PAGE>
SUBJECT TO COMPLETION, DATED JUNE 17, 1999
PROSPECTUS
4,031,577 SHARES
LONE STAR STEAKHOUSE & SALOON, INC.
Common Stock ($.01 par value)
This Prospectus relates to the reoffer and resale by certain selling
shareholders who may be deemed affiliates (the "Selling Shareholders") of shares
(the "Shares") of the Common Stock, $.01 par value (the "Common Stock"), of Lone
Star Steakhouse & Saloon, Inc. (the "Company") that may be issued by the Company
to the Selling Shareholders upon the exercise of outstanding stock options
granted pursuant to either (i) the 1992 Incentive and Non-Qualified Stock Option
Plan, as amended (the "1992 Plan") or (ii) the 1992 Directors Stock Option Plan,
as amended (the "Directors Plan"), of the Company. The offer and sale of the
Shares to the Selling Shareholders were previously registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Shares are being
reoffered and resold for the account of the Selling Shareholders and the Company
will not receive any of the proceeds from the resale of the Shares. With respect
to the Shares that may be issued to the Selling Shareholders or additional
affiliates under the 1992 Plan and the Directors' Plan, this Prospectus also
relates to certain Shares underlying options which have not as of this date been
granted. If and when such options are granted, the Company will distribute a
Prospectus Supplement as required by the Act.
The Selling Shareholders have advised the Company that the resale of
their Shares may be effected from time to time in one or more transactions on
the NASDAQ National Market System ("NASDAQ"), in negotiated transactions or
otherwise at market prices prevailing at the time of the sale or at prices
otherwise negotiated. See "Plan of Distribution." The Company will bear all
expenses in connection with the preparation of this Prospectus other than sales
commissions.
The Common Stock of the Company is traded on NASDAQ under the symbol
"STAR." On June 15, 1999, the closing price for the Common Stock, as reported by
NASDAQ, was $9-1/2.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
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<PAGE>
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE 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 June __, 1999.
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<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational reporting requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549; Northwest Atrium Center, Suite 1400, 500
West Madison Street, Chicago, Illinois 60661; and Seven World Trade Center, 13th
Floor, New York, New York 10048. Copies of such material can be obtained from
the Public Reference Section of the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. Such material may
also be accessed electronically by means of the Commission's home page on the
Internet at http://www.sec.gov.
TABLE OF CONTENTS
AVAILABLE INFORMATION..........................................................3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE................................4
GENERAL INFORMATION............................................................5
USE OF PROCEEDS................................................................5
SELLING SHAREHOLDERS...........................................................5
PLAN OF DISTRIBUTION...........................................................6
LEGAL MATTERS..................................................................6
EXPERTS........................................................................7
ADDITIONAL INFORMATION.........................................................7
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<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December
29, 1998 and the Company's Quarterly Report on Form 10-Q for the quarter ended
March 23, 1999 are hereby incorporated by reference in this Prospectus. All
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act, prior to the termination of this offering, are
deemed to be incorporated by reference in this Prospectus and shall be deemed to
be a part hereof from the date of the filing of such documents.
The Company's Application for Registration of its Common Stock under
Section 12(g) of the Exchange Act filed on March 5, 1992 is incorporated by
reference in this Prospectus and shall be deemed to be a part hereof.
The Company hereby undertakes to provide without charge to each person
to whom a copy of this Prospectus has been delivered, on the written or oral
request of any such person, a copy of any or all of the documents referred to
above which have been or may be incorporated in this Prospectus by reference,
other than exhibits to such documents. Written requests for such copies should
be directed to Lone Star Steakhouse & Saloon, Inc. at 224 East Douglas, Suite
700, Wichita, Kansas 67202, Attention: Mr. John D. White, Executive Vice
President, Chief Financial Officer and Treasurer. Oral requests should be
directed to such officer (telephone number (316) 264-8899).
----------------------------
No dealer, salesman or other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus in connection with the offer made hereby, and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company or any Selling Shareholder. This Prospectus does not constitute
an offer to sell, or a solicitation of an offer to buy, the securities offered
hereby to any person in any state or other jurisdiction in which such offer or
solicitation is unlawful. The delivery of this Prospectus at any time does not
imply that information contained herein is correct as of any time subsequent to
its date.
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<PAGE>
GENERAL INFORMATION
The Company currently owns and operates a chain of mid- priced, full
service, casual dining restaurants located in the United States which operate
under the tradename Lone Star Steakhouse and Saloon. In addition, the Company
owns and operates 15 upscale steakhouse restaurants, three (3) operating as Del
Frisco's Double Eagle Steakhouse restaurants and 12 operating as Sullivan's
Steakhouse. Internationally, the Company's Australian Joint Venture restaurants
operate 40 restaurants in Australia. The Lone Star restaurants embrace a
Texas-style concept featuring Texas artifacts and music. The Lone Star
restaurants serve mesquite grilled steaks, ribs, chicken and fish.
The Company's principal executive offices are located at 224 East
Douglas, Suite 700, Wichita, Kansas 67202. The Company's telephone number at
such location is (316) 264-8899.
The Shares offered hereby were or will be purchased by the Selling
Shareholders upon exercise of options granted to them and will be sold for the
account of the Selling Shareholders.
USE OF PROCEEDS
The Company will receive the exercise price of the options when
exercised by the holders thereof. Such proceeds will be used for working capital
purposes by the Company. The Company will not receive any of the proceeds from
the reoffer and resale of the Shares by the Selling Shareholders.
SELLING SHAREHOLDERS
This Prospectus relates to the reoffer and resale of Shares that may be
issued to the Selling Shareholders under the Plan or the Directors Plan.
The following table sets forth (i) the number of shares of Common Stock
owned by each Selling Shareholder at June 1, 1999, (ii) the number of Shares to
be offered for resale by each Selling Shareholder and (iii) the number and
percentage of shares of Common Stock to be held by each Selling Shareholder
after completion of the offering.
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<PAGE>
<TABLE>
<CAPTION>
Number of shares of
Common Stock/
Percentage of Class
Number of shares of Number of Shares to be Owned After
Common Stock Owned at to be Offered Completion of the
June 1, 1999 for Resale Offering
- ---------------------------------------- ------------------------ ----------------- --------------------
<S> <C> <C> <C>
Jamie B. Coulter(1)........................ 4,595,393 (2) 2,600,000 2,395,393/6.7%
John D. White(3)........................... 948,025 (4) 1,000,000 148,025/*
Michael Archer (5)......................... -0- 283,177 (6) 0/0
Clark R. Mandigo (7)....................... 70,267 (8) 42,800 34,000/*
Fred B. Chaney (9) ........................ 56,267 (10) 58,800 4,000/0
William H. Tilley (11) .................... 63,734 (12) 46,800 50,400/0
</TABLE>
* Less than one percent.
(1) Mr. Coulter has been Chairman and Chief Executive Officer of the
Company since January, 1992 and President of the Company from January
1992 through June 1995.
(2) Includes presently exercisable options to purchase 2,200,000 shares of
Common Stock. Excludes shares held by the adult children of Mr.
Coulter. Mr. Coulter disclaims beneficial ownership of these shares.
(3) Mr. White has been an Executive Vice President of the Company since
June 1995 and has been a Director of the Company and Chief Financial
Officer and Treasurer of the Company since January, 1992.
(4) Includes presently exercisable options to purchase 800,000 shares of
Common Stock.
(5) Michael J. Archer has been Chief Operating Officer-Del
Frisco's/Sullivan's since August, 1996 and a Director of the Company
since September, 1996.
(6) Consists of options.
(7) Mr. Mandigo became a Director of the Company in 1992.
(8) Includes presently exercisable options to purchase 36,267 shares of
Common Stock.
(9) Mr. Chaney became a Director of the Company in May 1995.
(10) Includes presently exercisable options to purchase 52,267 shares of
Common Stock.
(11) Mr. Tilley became a Director of the Company in December 1997.
(12) Includes 10,400 shares of Common Stock owned by a California
corporation of which Mr. Tilley is the principal stockholder and
presently exercisable options to purchase 13,334 shares of Common
Stock.
PLAN OF DISTRIBUTION
It is anticipated that all of the Shares will be offered by the Selling
Shareholders from time to time in the open market, either directly or through
brokers or agents, or in privately negotiated transactions. The Selling
Shareholders have advised the Company that they are not parties to any
agreement, arrangement or understanding as to such sales.
LEGAL MATTERS
Certain legal matters in connection with the issuance of the Shares
offered hereby have been passed upon for the Company by Messrs. Olshan Grundman
Frome Rosenzweig & Wolosky LLP, New York, New York 10022. Steven Wolosky, a
member of such Firm, holds options to purchase 8,767 shares of Common Stock
which shares are being registered in the Registration Statement which contains
this Prospectus.
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<PAGE>
EXPERTS
The consolidated financial statements of Lone Star Steakhouse & Saloon,
Inc. appearing in Lone Star Steakhouse & Saloon, Inc.'s Annual Report on Form
10-K, for the year ended December 29, 1998, have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report thereon included therein
and incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given on the
authority of such firm as experts in accounting and auditing.
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission two
Registration Statements on Form S-8 under the Securities Act with respect to the
Shares offered hereby. For further information with respect to the Company and
the securities offered hereby, reference is made to the Registration Statements.
Statements contained in this Prospectus as to the contents of any contract or
other document are not necessarily complete, and in each instance, reference is
made to the copy of such contract or document filed as an exhibit to the
Registration Statements, each such statement being qualified in all respects by
such reference.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference and made a
part hereof:
(a) The Company's Annual Report on Form 10-K for the year ended
December 29, 1998;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 23, 1999; and
(c) The description of the Company's securities contained in Lone
Star Steakhouse & Saloon, Inc.'s (the "Company") Registration
Statement on Form 8-A filed March 5, 1992.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13, 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of the filing of such reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Steven Wolosky a member of Olshan Grundman Frome Rosenzweig & Wolosky
LLP holds options to purchase 8,767 shares of Common Stock which shares are
being registered in this Registration Statement.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The Company was incorporated in Delaware. Article EIGHTH, Section A of
the Certificate of Incorporation of the Company provides as follows:
EIGHTH: A. A director of the Corporation shall not be
personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director,
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except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the Delaware
General Corporation Law (the "GCL"), or (iv) for any transaction from
which the director derived an improper personal benefit. If the GCL is
amended to authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of a director
of the Corporation shall be eliminated or limited to the fullest extent
permitted by the GCL, as so amended. Any repeal or modification of this
Section A by the stockholders of the Corporation shall not adversely
affect any right or protection of a director of the Corporation with
respect to events occurring prior to the time of such repeal or
modification.
Article EIGHTH, Section B of the Certificate of Incorporation of the
Company provides as follows:
B. (1) Each person who was or is made a party or is threatened
to be made a party to or is involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she or a person of whom
he or she is the legal representative is or was a director, officer,
employee or agent of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans,
whether the basis of such proceedings is alleged action in an official
capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall
be indemnified and held harmless by the Corporation to the fullest
extent authorized by the GCL as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to
provide prior to such amendment), against all expense, liability and
loss (including attorneys' fees, judgments, fines, ERISA excise taxes
or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that
except as provided in paragraph (2) of this Section B with respect to
proceedings seeking to enforce rights to indemnification,
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<PAGE>
the Corporation shall indemnify any such person seeking indemnification
in connection with a proceeding (or part thereof) initiated by such
person only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation. The right to indemnification
conferred in this Section B shall be a contract right and shall include
the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition;
provided, however, that if the GCL requires, the payment of such
expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity) in which service
was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan in
advance of the final disposition of a proceeding, shall be made only
under delivery to the Corporation of an undertaking by or on behalf of
such director or officer to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled
to be indemnified under this Section B or otherwise.
(2) If a claim under paragraph (1) of this Section B is not
paid in full by the Corporation within thirty days after a written
claim has been received by the Corporation, the claimant may at any
time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled to be paid also the expense of prosecuting
such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending
any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation)
that the claimant has not met the standards of conduct which make it
permissible under the GCL for the Corporation to indemnify the claimant
for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including
its Board of Directors, independent legal counsel or stockholders) to
have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because
he or she has met the applicable standard of conduct set forth in the
GCL, nor an actual determination by the Corporation (including its
Board of Directors, independent legal counsel or stockholders) that the
claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not
met the applicable standard of conduct.
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(3) The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition
conferred in this Section B shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute,
provision of the certificate of incorporation, By-Laws, agreement, vote
of stockholders or disinterested directors or otherwise.
(4) The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust
or other enterprise against any expense, liability or loss, whether or
not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the General Corporation
Law of the State of Delaware.
(5) The Corporation may, to the extent authorized from time to
time by the Board of Directors, grant rights to indemnification, and
rights to be paid by the Corporation for the expenses incurred in
defending any proceeding in advance of its final disposition, to any
agent of the Corporation to the fullest extent of the provisions of
this Section B with respect to the indemnification and advancement of
expenses of directors, officers and employees of the Corporation.
See Item 9(c) below for information regarding the position of the
Commission with respect to the effect of any indemnification for liabilities
arising under the Securities Act of 1933, as amended.
Section 145 of the Delaware General Corporation Law provides as
follows:
(a) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than action by or in the right
of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct
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<PAGE>
was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful.
(b) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the corporation unless
and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent
of a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections
(a) and (b) of this section, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper
in the circumstances because he has met the applicable standard of
conduct set forth in subsections (a) and (b) of this section. Such
determination shall be made (1) by the board of directors by
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a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) if such a quorum is
not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion
or (3) by the stockholders.
(e) Expenses incurred by an officer or director in defending a
civil or criminal action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the corporation
as authorized in this section. Such expenses incurred by other
employees and agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other subsections of this section shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such, whether
or not the corporation would have the power to indemnify him against
such liability under this section.
(h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any
person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with
respect to the resulting or
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surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the
request of the corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on,
or involves services by, such director, officer, employee, or agent
with respect to any employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participant and
beneficiaries of an employee benefit plan shall be deemed to have acted
in a manner "not opposed to the best interests of the corporation" as
referred to in this section.
(j) The indemnification and advancement of expenses provided
by, or granted pursuant to, this section shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a
person.
The Company maintains a directors and officers insurance and company
reimbursement policy. The policy insures directors and officers against
unindemnified loss arising from certain wrongful acts in their capacities and
reimburses the Company for such loss for which the Company has lawfully
indemnified the directors and officers. The policy contains various exclusions,
none of which relate to the offering hereunder. The Company also has agreements
with its directors and officers providing for the indemnification thereof under
certain circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
*4(a) - Certificate of Incorporation of the Company (Exhibit 3 to
Registrant's Form S-1 filed January 31, 1992, as amended
(the "S-1").
*4(b) - Bylaws of the Company. (Exhibit 3.2 to the S-1).
II-7
<PAGE>
*4(c) - 1992 Incentive and Nonqualified Stock Option Plan, as
amended (Exhibit 4(c) to the Registrant's Form S-8 filed
January 16, 1996).
*4(d) - 1992 Directors' Stock Option Plan of Lone Star Steakhouse &
Saloon, Inc. (Exhibit 4(c) to the Restaurant's Form S-8
filed May 5, 1992.
5 - Opinion of Olshan Grundman Frome Rosenzweig & Wolosky LLP.
23(a) - Consent of Ernst & Young LLP, independent auditors.
23(b) - Consent of Olshan Grundman Frome Rosenzweig & Wolosky LLP
(included in its opinion filed as Exhibit 5).
24 - Powers of Attorney (included on page II-11).
- ------------------
* Indicates exhibits incorporated by reference herein.
ITEM 9. UNDERTAKINGS.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to 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;
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in the Registration
II-8
<PAGE>
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 purposes of determining any
liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to
be a new registration statement relating to the
securities offered therein, and the offering of
such securities at that time shall be deemed to be
the initial bona fide offering thereof; and
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered that remain unsold at the termination of
the offering.
B. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in this
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.
C. Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed
in the Securities Act of 1933 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,
II-9
<PAGE>
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 a controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
D. The undersigned registrant hereby undertakes to deliver
or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, a copy
of the registrant's latest annual report to
stockholders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim
financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the
prospectus, to deliver, or cause to be delivered to
each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide
such interim financial information.
II-10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Wichita, State of Kansas, on this 16th day of June
1999.
LONE STAR STEAKHOUSE & SALOON, INC.
(Registrant)
/S/ JAMIE B. COULTER
---------------------------------------
Jamie B. Coulter, Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEYS AND SIGNATORIES
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated. Each of the undersigned officers and
directors of Lone Star Steakhouse & Saloon, Inc. hereby constitutes and appoints
Jamie B. Coulter and John D. White, and each of them singly, as true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him in his name in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission and to prepare any and
all exhibits thereto, and other documents in connection therewith, and to make
any applicable state securities law or blue sky filings, granting unto said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing requisite or necessary to be done to enable Lone Star
Steakhouse & Saloon, Inc. to comply with the provisions of the Securities Act of
1933, as amended, and all requirements of the Securities and Exchange
Commission, 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 their substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
SIGNATURE TITLE DATE
--------- ----- ----
/S/ JAMIE B. COULTER Chairman of the Board and Chief June 16, 1999
- ------------------------ Executive Officer
Jamie B. Coulter
/S/ JOHN D. WHITE Executive President, Chief June 16, 1999
- ------------------------ Financial Officer and
John D. White (Principal Accounting Officer),
Treasurer and Director
II-11
<PAGE>
/S/ MICHAEL ARCHER Chief Operating Officer -- Del June 16, 1999
- ------------------------- Frisco's/Sullivan's and
Michael Archer Director
/S/ CLARK R. MANDIGO Director June 16, 1999
- ------------------------
Clark R. Mandigo
/S/ FRED B. CHANEY Director June 16, 1999
- ------------------------
Fred B. Chaney
/S/ WILLIAM H. TILLEY Director June 16, 1999
- --------------------------
William H. Tilley
II-12
<PAGE>
THE 1992 INCENTIVE AND NON-QUALIFIED STOCK OPTION PLAN. Pursuant to the
requirements of the Securities Act of 1933, the members of the Stock Option
Committee have duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Wichita,
State of Kansas, on June 16, 1999.
/S/ FRED B. CHANEY
------------------------------
Fred B. Chaney
/S/ CLARK R. MANDIGO
------------------------------
Clark R. Mandigo
II-13
Exhibit 5
June 16, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: Lone Star Steakhouse & Saloon, Inc.
Registration Statement on Form S-8
-----------------------------------
Gentlemen:
Reference is made to the Registration Statement on Form S-8 dated June 16,
1999 (the "Registration Statement"), filed with the Securities and Exchange
Commission by Lone Star Steakhouse & Saloon, Inc., a Delaware corporation (the
"Company"). The Registration Statement relates to an aggregate of 118,767 shares
(the "Shares") of common stock, par value $.01 per share (the "Common Stock").
The Shares will be issued and sold by the Company in accordance with the
exercise of Stock Options held by Consultants.
We advise you that we have examined originals or copies certified or
otherwise identified to our satisfaction of the Certificate of Incorporation and
By-laws of the Company, minutes of meetings of the Board of Directors and
stockholders of the Company, a Prospectus relating to the resale of Common Stock
underlying options held by affiliates of the Company (the "Prospectus"), and
such other documents, instruments and certificates of officers and
representatives of the Company and public officials, and we have made such
examination of the law, as we have deemed appropriate as the basis for the
opinion hereinafter expressed. In making such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, and the conformity to original documents of documents submitted to
us as certified or photostatic copies.
<PAGE>
Securities and Exchange Commission
June 16, 1999
Page 2
Based upon the foregoing, we are of the opinion that the Shares, when
issued and paid for in accordance with the terms and conditions set forth in the
option agreements for the Consultants, will be duly and validly issued, fully
paid and non-assessable.
We consent to the reference to this firm under the caption "Legal Opinion"
in the Prospectus. We advise you that Steven Wolosky, a member of this firm,
holds options to purchase 8,767 Shares of Common Stock which Shares are being
registered in the Registration Statement which contains this Prospectus.
Very truly yours,
/s/ OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
--------------------------------------------------
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
Exhibit 23(a)
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8) to be filed with the Securities and Exchange
Commission on or about June 11, 1999, and to the incorporation by reference
therein of our report dated March 26, 1999, with respect to the consolidated
financial statements of Lone Star Steakhouse & Saloon, Inc. included in its
Annual Report on Form 10-K for the year ended December 29, 1998, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Wichita, Kansas
June 10, 1999
