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As filed with the Securities and Exchange
Commission on February 10, 2000 Registration No. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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RARE HOSPITALITY INTERNATIONAL, INC.
(Exact name of issuer as specified in its charter)
Georgia 58-1498312
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
8215 Roswell Road
Building 600
Atlanta, Georgia 30350
(Address of Principal Executive Offices) (Zip Code)
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RARE HOSPITALITY INTERNATIONAL, INC.
FUTURECOMP SERVICE PLAN
(Full title of the Plan)
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PHILIP J. HICKEY, JR.
CHIEF EXECUTIVE OFFICER
RARE Hospitality International, Inc.
8215 Roswell Road
Building 600
Atlanta, Georgia 30350
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPY TO:
JOIA M. JOHNSON, ESQ.
VICE PRESIDENT AND
GENERAL COUNSEL
RARE Hospitality International, Inc.
8215 Roswell Road
Building 600
Atlanta, Georgia 30350
(770) 399-9595
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed Maximum
Title of Securities Amount to be Maximum Aggregate Amount of
to be Registered Registered Offering Price Offering Price Registration
Per Obligation Fee
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Deferred Compensation $5,000,000 100% $5,000,000 $1,320
Obligations (1)
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</TABLE>
(1) The Deferred Compensation Obligations are unsecured obligations of
RARE Hospitality International, Inc. to pay deferred compensation in the future
in accordance with the RARE Hospitality International, Inc. FutureComp Service
Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
RARE Hospitality International, Inc. (the "Corporation") hereby
incorporates by reference into this Registration Statement the
following documents:
(a) The Corporation's Annual Report on Form 10-K for the fiscal
year ended December 27, 1998.
(b) All other reports filed with the Commission pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), since December 27, 1998.
All documents subsequently filed by the Corporation pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Under the RARE Hospitality International, Inc. FutureComp Service Plan
(the "Plan"), eligible employees of the Corporation and its affiliates that
participate in the Plan (each a "Participating Company") have the opportunity to
defer a portion of his or her compensation. The obligations of the Corporation
to provide benefits to its employees under such agreements (the "Obligations")
will be unsecured general obligations of the Corporation to pay the deferred
compensation in the future in accordance with the terms of the Plan. The right
of the Corporation, and therefore the right of creditors of the Corporation
(including participants in the Plan), to participate in the distribution of the
assets of any subsidiary or affiliate of the Corporation upon its liquidation or
reorganization or otherwise is necessarily subject to the claims of creditors of
the subsidiary or affiliate, except to the extent that claims of the Corporation
itself as a creditor of the subsidiary or affiliate may be recognized. The
Corporation is liable solely for the payment of Obligations in respect of
compensation deferred by each participating employee (each a "Participant")
employed by the Corporation; all other benefits payable under the Plan are the
general unsecured obligations of the Participating Company employing the
Participant to whom the benefits are owed.
The amount of compensation to be deferred by each Participant will be
determined in accordance with the Plan based on deferral elections submitted by
each Participant. The Participating Company will provide matching contributions
in respect of compensation deferred. Each Obligation will be payable on dates
selected by the Participant in accordance with the terms of the Plan. The
Obligations are denominated and payable in United States dollars.
The value of the Obligations will be based on the investment return
generated by hypothetical investment options chosen by each Participant. Each
Participant's Obligation will be adjusted to reflect the investment experience,
whether positive or negative, of the selected hypothetical investments,
including any appreciation or depreciation.
The Obligations are not subject to redemption, in whole or in part,
prior to the individual payment dates specified by each Participant. However,
the Corporation reserves the right to amend or terminate the Plan at any time,
provided that no amendment or termination shall reduce the vested balance
credited to each Participant's account immediately before such amendment or
termination.
The Obligations are not convertible into another security of the
Corporation. The Obligations will not have the benefit of a negative pledge or
any other affirmative or negative covenant on the part of the Corporation. No
trustee has been appointed having the authority to take action with respect to
the Obligations and each Participant will be responsible for acting
independently with respect to, among other things, the giving of notices,
responding to any
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requests for consents, waivers or amendments pertaining to the Obligations,
enforcing covenants and taking action upon default.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to the Corporation's Bylaws, as amended, and indemnification
agreements between the Corporation and each of its officers and directors, the
Corporation is obligated to indemnify each of its directors and officers to the
fullest extent permitted by law with respect to all liability and loss suffered
and reasonable expense incurred by such person in any action, suit or proceeding
in which such person was or is made or threatened to be made a party or is
otherwise involved by reason of the fact that such person is or was a director
or officer of the Corporation. The Corporation is also obligated to pay the
reasonable expenses of the directors and officers incurred in defending such
proceeding if the indemnified party agrees to repay all amounts advanced if it
is ultimately determined that such person is not entitled to indemnification.
In addition, the Corporation's Amended and Restated Articles of
Incorporation, as amended, provide that the Corporation's directors shall not be
liable to the Corporation or its shareholders for monetary damages for breach of
a director's fiduciary duty as a director to the Corporation and its
shareholders except to the extent such exemption from liability or limitation
thereof is not permitted under the Georgia Business Corporation Code. This
provision in the Articles of Incorporation does not eliminate the duty of care,
and in appropriate circumstances equitable remedies such as injunctive or other
forms of non-monetary relief will remain available under Georgia law. In
addition, each director continues to be subject to liability for monetary
damages for misappropriation of any corporate opportunity in violation of the
director's duties, for acts or omissions involving intentional misconduct, for
knowing violations of law, for actions leading to improper personal benefit to
the director, and for distributions (including payment of dividends or stock
repurchases or redemptions) that are unlawful under Georgia law. The provision
does not affect a director's responsibilities under any other law, such as the
federal securities laws or state or federal environmental laws.
The Corporation maintains an insurance policy covering directors and
officers under which the insurer agrees to pay, subject to certain exclusions,
for any claim made against the directors and officers of the Corporation for a
wrongful act that they may become legally obligated to pay or for which the
Corporation is required to indemnify the directors or officers. The Corporation
believes that its Articles of Incorporation and By-law provisions and
indemnification agreements are necessary to attract and retain qualified persons
as directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement pursuant to Item 601 of Regulation S-K:
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
5 Opinion of Mazursky & Dunaway, LLP.
23.1 Consent of Mazursky & Dunaway, LLP (included in Exhibit 5).
23.2 Consent of KPMG LLP.
24 Power of Attorney (see signature pages to this Registration
Statement).
</TABLE>
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ITEM 9. UNDERTAKINGS.
(a) The Corporation 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 (the "Securities Act");
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the Corporation pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The Corporation hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Corporation's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered 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 may be permitted to directors, officers and controlling persons
of the Corporation pursuant to the foregoing provisions, or otherwise, the
Corporation 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 Corporation of expenses
incurred or paid by a director, officer or controlling person of the Corporation
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 Corporation will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Corporation
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 Atlanta, State of Georgia, on this 31st day of
January, 2000.
RARE HOSPITALITY INTERNATIONAL, INC.
By: /s/ Philip J. Hickey, Jr
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Philip J. Hickey, Jr.
Chief Executive Officer and Director
(Principal Executive Officer)
By: /s/ W. Douglas Benn
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W. Douglas Benn
Chief Financial Officer
(Principal Financial and Accounting Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the individuals whose signatures
appear below constitute and appoint Philip J. Hickey, Jr. and W. Douglas Benn,
or either of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
required 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 attorney-in-fact and agent, or his substitute, could
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities
indicated below on the 31st day of January, 2000.
/s/ George W. McKerrow, Jr. Chairman and Director
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George W. McKerrow, Jr.
/s/ Philip J. Hickey, Jr. Chief Executive Officer and Director
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Philip J. Hickey, Jr.
/s/ George W. McKerrow, Sr. Director
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George W. McKerrow, Sr.
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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/s/ Ronald W. San Martin Director
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Ronald W. San Martin
/s/ John G. Pawly Director
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John G. Pawly
/s/ Don L. Chapman Director
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Don L. Chapman
/s/ Lewis H. Jordan Director
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Lewis H. Jordan
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
5 Opinion of Mazursky & Dunaway, LLP
23.1 Consent of Mazursky & Dunaway, LLP (included in
Exhibit 5)
23.2 Consent of KPMG LLP
24 Power of Attorney (included as part of
signature page)
</TABLE>
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EXHIBIT 5
OPINION OF MAZURSKY & DUNAWAY, LLP
January 31, 2000
RARE Hospitality International, Inc.
8215 Roswell Road
Building 200
Atlanta, Georgia 30350
Ladies and Gentlemen:
We have acted as counsel to RARE Hospitality International, Inc. (the
"Corporation") in connection with the Registration Statement on Form S-8 to be
filed with the Securities and Exchange Commission (the "Registration Statement")
relating to registration under the Securities Act of 1933, as amended, of
$ 5,000,000 of unsecured obligations (the "Obligations") to pay deferred
compensation in the future under the RARE Hospitality International, Inc.
FutureComp Service Plan (the "Plan")
In connection with the opinion expressed below, we have made such
factual inquiries and examined such questions of law as we have considered
necessary or appropriate for the purposes of such opinion.
It is our opinion that, when issued in accordance with the Plan, the
Obligations will be binding obligations of the Corporation, except as may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights in general.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Mazursky & Dunaway, LLP
MAZURSKY & DUNAWAY, LLP
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EXHIBIT 23.2
[KPMG LOGO]
303 Peachtree Street, N.E. Telephone 404 222 3000
Suite 2000 Fax 404 222 3050
Atlanta, GA 30308
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
RARE Hospitality International, Inc.
We consent to the use of our reports incorporated herein by reference.
KPMG LLP
Atlanta, Georgia
February 10, 2000
