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As filed with the Securities and Exchange Commission on November 9, 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 REGISTRANT AS SPECIFIED IN ITS CHARTER)
Georgia 58-1498312
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
8215 ROSWELL ROAD, BUILDING 600
ATLANTA, GEORGIA 30350
(Address of Principal Executive Offices) (Zip Code)
RARE HOSPITALITY INTERNATIONAL, INC. NON-QUALIFIED STOCK OPTION AGREEMENTS
RARE HOSPITALITY INTERNATIONAL, INC. 1997 LONG-TERM INCENTIVE PLAN, AS AMENDED
(Full title of the plan)
PHILIP J. HICKEY, JR.
RARE HOSPITALITY INTERNATIONAL, INC.
8215 ROSWELL ROAD, BUILDING 600
ATLANTA, GEORGIA 30350
(770) 399-9595
(Name, address, and telephone number, including area code, of agent for service)
COPY TO:
JOIA M. JOHNSON, ESQ.
RARE HOSPITALITY INTERNATIONAL, INC.
8215 ROSWELL ROAD, BUILDING 600
ATLANTA, GEORGIA 30350
CALCULATION OF REGISTRATION FEE
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TITLE OF PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO AMOUNT TO BE PROPOSED MAXIMUM AGGREGATE OFFERING REGISTRATION
BE REGISTERED REGISTERED(1) OFFERING PRICE PER SHARE PRICE FEE
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<S> <C> <C> <C> <C>
Common stock, no par value 1,500 $ 10.75 (2) $ 16,125 (2) $ 4.26
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Common stock, no par value 52,500 $ 12.1667 (2) $ 638,750 (2) $ 168.63
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Common stock, no par value 15,000 $ 12.416 (2) $ 186,250 (2) $ 49.17
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Common stock, no par value 37,500 $ 12.666 (2) $ 475,000 (2) $ 125.40
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Common stock, no par value 254,250 $ 12.7926 (2) $ 3,252,518 (2) $ 858.63
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Common stock, no par value 862,500(3) $ 23.53125(4) $20,295,703 (4) $5,358.07
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Total 1,223,250 $6,564.16
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(1) Consists of shares of common stock that the registrant may issue
pursuant to options granted under the RARE Hospitality International,
Inc. 1997 Long-Term Incentive Plan and non-qualified stock option
agreements between the registrant and certain of its employees,
consultants and advisors, as adjusted for the registrant's stock
dividend, whereby, effective as of September 5, 2000, the registrant
distributed one share of common stock for every two shares of common
stock held by its stockholders on August 15, 2000 (the "Stock
Dividend").
(2) Determined for purposes of calculating the registration fee in
accordance with Rule 457(h) and based upon the exercise price of such
options, as adjusted for the Stock Dividend.
(3) Amendment No. 3 to the RARE Hospitality International, Inc. 1997
Long-Term Incentive Plan increased the number of shares of common stock
available for issuance under the plan by 575,000, or 862, 500 as
adjusted for the Stock Dividend. The remaining 1,1250,000 shares of
common stock available for issuance under such plan, as adjusted for
the Stock Dividend, were registered on a previously filed registration
statement on Form S-8 (File No. 333-65485).
(4) Based on the average of the high and low price of shares of the
registrant's common stock reported on the Nasdaq National Market System
on November 6, 2000, pursuant to Rules 457(c) and (h).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
We will provide the documents constituting Part I of this registration
statement to holders of outstanding non-qualified stock options and participants
in the RARE Hospitality International, Inc. 1997 Long-Term Incentive Plan as
specified by Rule 428(b)(1) under the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by us with the Securities and Exchange
Commission are incorporated by reference in this registration statement:
(a) Our latest annual report filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 or the latest
prospectus filed pursuant to Rule 424(b) under the Securities
Act of 1933, that contains audited financial statements for
our latest fiscal year for which such statements have been
filed.
(b) All of our other reports filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 since the end of
the fiscal year covered by the document referred to in (a)
above.
(c) The description of our common stock contained in our
registration statement filed under Section 12 of the
Securities Exchange Act of 1934, including any amendment or
report filed for the purpose of updating such description.
(d) The description of our rights to purchase Series A junior
participating preferred stock contained in our registration
statement filed under Section 12 of the Securities Exchange
Act of 1934, including any amendments or reports filed for the
purpose of updating such description.
All documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Securities Exchange Act of 1934 prior to the filing
of a post-effective amendment, which indicates that all securities offered have
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be a part
of this registration statement from the date of the filing of such documents.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our articles of incorporation eliminate the personal liability of our
directors to us or our shareholders for monetary damage for any breach of duty
as a director, provided that we cannot eliminate or limit the liability of a
director for:
- a breach of duty involving appropriation of a business
opportunity of ours;
- an act or omission which involves intentional misconduct or a
knowing violation of law;
- any transaction from which the director receives an improper
personal benefit; or
- unlawful corporate distributions.
Our bylaws require us to indemnify any director or officer 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 (including any action or suit by or in our right) because such
person is or was one of our directors or officers, against liability incurred by
the director or officer in such proceeding except for any liability incurred in
a proceeding in which the director or officer is adjudged liable to us or is
subjected to injunctive relief in our favor for:
- any appropriation, in violation of such director's or
officer's duties, of any business opportunity of ours;
- acts or omissions which involve intentional misconduct or a
knowing violation of law;
- unlawful corporate distributions; or
- any transaction from which such officer or director received
an improper personal benefit.
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Indemnified persons would also be entitled to have us advance expenses
prior to the final disposition of the proceeding. If it is ultimately determined
that they are not entitled to indemnification, however, such amounts would be
repaid. Insofar as indemnification for liability arising under the Securities
Act of 1933 may be permitted to our officers and directors pursuant to these
provisions, the Commission has informed us that in its opinion such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable.
We have entered into separate indemnity agreements with each of our
directors and executive officers, under which we agree to indemnify them and to
advance them expenses in a manner and subject to terms and conditions similar to
those set forth in our articles of incorporation and bylaws.
We maintain a standard form of officers' and directors' liability
insurance policy which provides coverage to our officers and directors for
liabilities, including liabilities which may arise out of this registration
statement.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Amended and Restated Articles of Incorporation (incorporated
by reference from Exhibit 3(a) to our annual report on Form 10-K for the fiscal
year ended December 28, 1997).
4.2 Bylaws, as amended, (incorporated by reference from Exhibit
3(b) to our annual report on Form 10-K for the fiscal year ended December 28,
1997).
4.3 Form of RARE Hospitality International, Inc. Non-Qualified
Stock Option Agreement between the registrant and certain of its employees,
consultants and advisors.
4.4 RARE Hospitality International, Inc. 1997 Long-Term Incentive
Plan (incorporated by reference from Exhibit 10(i) of the registrant's annual
report on Form 10-K for the fiscal year ended December 28, 1997).
4.5 Amendment No. 1 to RARE Hospitality International, Inc. 1997
Long-Term Incentive Plan (incorporated by reference from Exhibit 10(j) of the
registrant's annual report on Form 10-K for the fiscal year ended December 28,
1997).
4.6 Amendment No. 2 to RARE Hospitality International, Inc. 1997
Long-Term Incentive Plan (incorporated by reference from Exhibit 10(i) of the
registrant's annual report on Form 10-K for the fiscal year ended December 27,
1998).
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4.7 Amendment No. 3 to RARE Hospitality International, Inc. 1997
Long-Term Incentive Plan (incorporated by reference from Exhibit 10.1 of the
registrant's quarterly report on Form 10-Q for the quarterly period ended July
2, 2000).
4.8 Shareholder Protection Rights Agreement dated as of November
4, 1997, between the registrant and SunTrust Bank, Atlanta, as rights agent
(incorporated by reference from Exhibit 99.1 to our current report on Form 8-K
dated November 4, 1997).
5.1 Opinion of Alston & Bird LLP regarding the legality of the
securities being registered.
23.1 Consent of Alston & Bird LLP (included in Exhibit 5.1).
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (included on the signature page contained on
page II-6).
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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; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change in such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(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 Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement
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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 undersigned issuer 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 Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(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 provisions described in Item 6 of this
Part II, 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, RARE
Hospitality International, Inc., 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 8th day of November, 2000.
RARE Hospitality International, Inc.
By: /s/ Philip J. Hickey, Jr.
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Philip J. Hickey, Jr.
Chief Executive Officer
(Principal Executive Officer)
By: /s/ W. Douglas Benn
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W. Douglas Benn
Executive Vice President, Finance and
Chief Financial Officer
(Principal Financial and Accounting Officer)
(Continued on next page)
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POWER OF ATTORNEY
Know All Men By These Presents, that each person whose signature appears
below constitutes and appoints Philip J. Hickey, Jr., and W. Douglas Benn, or
either 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 amendments (including
post-effective amendments) to this registration statement, and to file the same,
with exhibits, and other related documents, with the Securities and Exchange
Commission, granting to such 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, as fully to all intents and purposes as such
person might or could do in person, hereby ratifying and confirming all that
such attorneys-in-fact and agents, or any of them, or her/his or their
substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated:
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/George W. McKerrow, Jr. Chairman and Director November 8, 2000
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George W. McKerrow, Jr.
/s/ Philip J. Hickey, Jr Chief Executive Officer and Director November 8, 2000
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Philip J. Hickey, Jr.
/s/ Don L. Chapman Director November 8, 2000
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Don L. Chapman
/s/ Lewis H. Jordan Director November 8, 2000
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Lewis H. Jordan
Director November __, 2000
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George W. McKerrow, Sr.
/s/ John G. Pawly Director November 8, 2000
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John G. Pawly
/s/ Ronald W. San Martin Director November 8, 2000
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Ronald W. San Martin
/s/ Carolyn H. Baldwin Director November 8, 2000
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Carolyn H. Baldwin
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