<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ON AUGUST 27, 1999
REGISTRATION STATEMENT NO. 333-____
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MORTON'S RESTAURANT GROUP, INC.
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(Exact name of registrant as specified in its charter)
Delaware 13-3490149
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
3333 New Hyde Park Road, New Hyde Park, New York 11042
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(Address of Principal Executive Offices) (Zip Code)
MORTON'S RESTAURANT GROUP INC. EMPLOYEE STOCK PURCHASE PLAN
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(Full title of the plan)
Thomas J. Baldwin
Director, Executive Vice President, Chief Financial Officer,
Assistant Secretary and Treasurer
Morton's Restaurant Group, Inc.
3333 New Hyde Park Road
New Hyde Park, New York 11042
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(Name and address of agent for service)
(516) 627-1515
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(Telephone number, including area code, of agent for service)
Please send copies to:
Peter A. Nussbaum, Esq.
Schulte Roth & Zabel LLP
900 Third Avenue
New York, New York 10022
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Amount maximum maximum Amount of
Title of securities to be offering aggregate registration
to be registered registered price offering fee
(1) per price(2)
share(2)
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, 600,000 $17.875 $10,725,000 $2,982
$.01 par value per share shares
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Maximum number of shares authorized for issuance pursuant to the Employee
Stock Purchase Plan (the "Plan") of Morton's Restaurant Group, Inc. Also
registered hereunder are such additional number of shares of Common Stock
("Common Stock"), presently undeterminable, as may be necessary to satisfy the
antidilution provisions of the Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) under the Securities Act of 1933, as amended (the
"Securities Act"), and based on the average of the high and low prices of the
Common Stock as reported on the New York Stock Exchange Composite Tape on
August 24, 1999.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing information specified in Part I of Form S-8
will be sent or given to employees participating in the Plan as specified by
Rule 428(b)(2) of the Securities Act. Those documents and the documents
incorporated by reference into this Registration Statement pursuant to Item 3 of
Part II of this Registration Statement, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Securities and Exchange Commission (the "SEC") allows the Company
to "incorporate by reference" the information the Company files with the SEC,
which means the Company can disclose important information to investors by
referring investors to those documents. The information incorporated by
reference is an important part of this Registration Statement, and information
the Company files later will automatically update and supersede this
information. The following documents are incorporated by reference:
1. The Company's Annual Report on Form 10-K for the year ended January
3, 1999;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
April 4, 1999, and July 4, 1999;
3. The Company's Current Report on Form 8-K filed with the SEC on
July 19, 1999;
4. The Company's Definitive Proxy Statement purusant to Schedule 14A
filed with the SEC on March 31, 1999; and
5. The description of the Common Stock contained in the registration
statement on Form 8-A, filed by the Company with the SEC on February 18, 1992
pursuant to the Securities Exchange Act of 1934, (the "Exchange Act").
The Company also incorporates by reference in this Registration
Statement 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
Registration Statement and before the Company files a post-effective amendment
which indicates that all securities have been sold or which deregisters all
securities remaining unsold.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Subsection (a) of Section 145 of the General Corporation Law of
Delaware empowers a corporation to indemnify any person who was or is a party
or is
2
<PAGE>
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that the person 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 the person in connection with such action, suit or
proceeding if the person acted in good faith and in a manner the person
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 the person's conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to 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 such
person acted in any of the capacities set forth above against expenses
(including attorneys' fees) actually and reasonably incurred by the person in
connection with the defense or settlement of such action or suit if the person
acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation, except that no
indemnification may be made in respect to 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 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 shall deem
proper.
Section 145 further provides that: (i) to the extent that a present or
former director or officer 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) or in defense of any claim, issue or matter therein,
such person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection therewith; and
(ii) indemnification provided for by Section 145 shall not be deemed exclusive
of any other rights to which the indemnified party may be entitled. In addition,
Section 145 empowers the corporation to purchase and maintain insurance on
behalf of any person acting in any capacities set forth in the second preceding
paragraph against any liability asserted against such person or incurred by such
person in any such capacity or arising out of such person's status as such
whether or not the corporation would have the power to indemnify such person
against such liabilities under Section 145.
In addition, the Company maintains director and officer liability
insurance and has entered into indemnification agreements with its directors,
each as permitted by Delaware law on behalf of directors, officers, employees or
agents, which may cover liabilities under the Securities Act of 1933.
Item 7. Exemption from Registration Claimed.
Not applicable.
3
<PAGE>
Item 8. Exhibits.
The following is a complete list of exhibits filed as part of this
Registration Statement:
Exhibit
Number
- -------
4 Morton's Restaurant Group, Inc. Employee Stock Purchase Plan,
effective as of October 1, 1999.
5 Opinion of Schulte Roth & Zabel LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Schulte Roth & Zabel LLP (included in Exhibit 5).
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;
(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;
(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 undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 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.
4
<PAGE>
(h) 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 Commission such
indemnification is against public policy as expressed in the Securities 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.
5
<PAGE>
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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New Hyde Park, State of New York, on this 27th day
of August, 1999.
MORTON'S RESTAURANT GROUP, INC.
By: /s/ Thomas J. Baldwin
----------------------------------
Thomas J. Baldwin
Director, Executive Vice President
Chief Financial Officer,
Assistant Secretary and Treasurer
6
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated, on this 27th day of August, 1999.
Signature and Title
/s/ Allen J. Bernstein
- -------------------------
Allen J. Bernstein
Chairman of the Board of Directors, President
and Chief Executive Officer
(Principal Executive Officer)
/s/ Thomas J. Baldwin
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Thomas J. Baldwin
Director, Executive Vice President,
Chief Financial Officer, Assistant
Secretary and Treasurer
(principal financial and accounting
officer)
/s/ Lee M. Cohn
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Lee M. Cohn
Director
/s/ Dianne H. Russell
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Dianne H. Russell
Director
/s/ Alan A. Teran
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Alan A. Teran
Director
/s/ John K. Castle
- -------------------------
John K. Castle
Director
/s/ Dr. John J. Connolly
- -------------------------
Dr. John J. Connolly
Director
/s/ David B. Pittaway
- -------------------------
David B. Pittaway
Director
7
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the
Company's Compensation and Stock Option Committee, as administrator of the
Company's Employee Stock Purchase Plan, has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New Hyde Park, State of New York, on this 27th day
of August, 1999.
MORTON'S RESTAURANT GROUP, INC.
EMPLOYEE STOCK PURCHASE PLAN
By: /s/ John K. Castle
------------------------------------
Name: John K. Castle
Title: Chairman of Compensation and
Stock Option Committee, as
Plan Administrator
8
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EXHIBIT INDEX
Exhibit
Number Exhibit
- -------- ---------
4 Morton's Restaurant Group, Inc. Employee Stock Purchase
Plan, effective as of October 1, 1999.
5 Opinion of Schulte Roth & Zabel LLP
23.1 Consent of KPMG LLP
23.2 Consent of Schulte Roth & Zabel LLP (included in Exhibit 5)
<PAGE>
Exhibit 4
MORTON'S RESTAURANT GROUP, INC.
EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the Morton's
Restaurant Group, Inc. Employee Stock Purchase Plan (the "Plan") of Morton's
Restaurant Group (the "Company").
1. PURPOSE. The purpose of the Plan is to provide employees of
the Company and its subsidiaries with an opportunity to purchase shares of
Common Stock of the Company through payroll deductions. It is the intention of
the Company to have the Plan qualify as an "employee stock purchase plan" under
Section 423 of the Internal Revenue Code of 1986, as amended (the "Code"). The
provisions of the Plan shall, accordingly, be construed so as to extend and
limit participation in a manner consistent with the requirements of that section
of the Code.
2. DEFINITIONS.
(a) "Account" shall mean the account established for
each Participant under the Plan.
(b) "Base Salary" shall mean the total compensation
received by an Employee as reflected on his or her IRS Form W-2 Wage and Tax
Statement, including, but not limited to, an Employee's salary or wages, tips
and overtime for each pay period during any Offering Period as determined from
the payroll records of the Company; PROVIDED, HOWEVER, that the Committee may,
in its discretion, limit the amount of a Participant's Base Salary that may be
considered under the Plan.
(c) "Board" shall mean the Board of Directors of the
Company.
(d) "Broker" shall mean the brokerage firm selected
and designated by the Company or the Committee.
(e) "Closing Date" shall mean the last business day
of each Offering Period.
(f) "Code" shall mean the Internal Revenue Code of
1986, as amended.
(g) "Committee" shall mean the Compensation and Stock
Option Committee of the Company.
(h) "Common Stock" shall mean the Class A common
stock of the Company par value $.01 per share.
<PAGE>
(i) "Company" shall mean Morton's Restaurant Group,
Inc., a Delaware corporation.
(j) "Employee" shall mean any person who is
customarily employed for at least twenty (20) hours per week by the Company or a
Subsidiary, including, to the extent permitted by the Committee, senior officers
of the Company.
(k) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
(l) "Fair Market Value" shall mean on any day, with
respect to Common Stock of the Company which is (a) listed on a United States
securities exchange, the last sales price of such stock on such day on the
largest United States securities exchange on which such stock shall have traded
on such day, or if such day is not a day on which a United States securities
exchange is open for trading, on the immediately preceding day on which such
securities exchange was open, (b) not listed on a United States securities
exchange but is included in The NASDAQ Stock Market System (including The NASDAQ
National Market), the last sales price on such system of such stock on such day,
or if such day is not a trading day, on the immediately preceding trading day,
or (c) neither listed on a United States securities exchange nor included in The
NASDAQ Stock Market System, the fair market value of such stock as determined
from time to time by the Board in good faith in its sole discretion.
(m) "Offering Date" shall mean the first business day
of each Offering Period.
(n) "Offering Period" shall mean each three (3) month
period when Options for shares of Common Stock are offered by the Company.
(o) "Option" shall mean the right of a Participant to
purchase shares of Common Stock of the Company under the Plan.
(p) "Participant" shall mean an Employee of the
Company or Subsidiary who is enrolled in the Plan in accordance with Section 3
hereof.
(q) "Plan" shall mean The Morton's Restaurant Group
Employee Stock Purchase Plan.
(r) "Subsidiary" shall mean a corporation, domestic
or foreign, of which not less than fifty percent (50%) of the voting shares are
held by the Company or a Subsidiary, whether or not such corporation now exists
or is hereafter organized or acquired by the Company or a Subsidiary.
3. ELIGIBILITY.
(a) As soon as administratively possible, any
Employee who shall be employed by the Company or one of its Subsidiaries
<PAGE>
shall be eligible to participate in the Plan as of the date of the first
Offering Period following the first anniversary of the Employee's commencement
of employment with the Company or a Subsidiary.
(b) Any provisions of the Plan to the contrary
notwithstanding, no Employee shall be granted an Option under the Plan (i) if,
immediately after the grant, such Employee would own shares of Common Stock or
hold outstanding options to purchase shares of Common Stock possessing five
percent (5%) or more of the total combined voting power or value of all classes
of shares of the Company or of any Subsidiary of the Company, or (ii) which
causes him or her to purchase shares of Common Stock under all employee stock
purchase plans of the Company and its Subsidiaries which have a Fair Market
Value which exceeds Twenty-Five Thousand Dollars ($25,000) (determined at the
time such Option is granted) for each calendar year in which such Option is
outstanding at any time.
4. OFFERING DATES. The Plan shall be implemented by one
offering during each three (3) month period (calendar quarter) of the Plan,
commencing on October 1, 1999, and continuing thereafter until terminated in
accordance with Section 21 hereof. The Offering Periods for each calendar
quarter are as follows:
January 1 - March 31
April 1 - June 30
July 1 - September 30
October 1 - December 31
The Committee shall have the power to change the duration of
Offering Periods with respect to future offerings without shareholder approval
if such change is announced at least fifteen (15) days prior to the scheduled
beginning of the first Offering Period to be affected.
5. PARTICIPATION. An eligible Employee may become a
Participant in the Plan by authorizing payroll deductions in such form or manner
as the Committee may prescribe prior to the applicable Offering Date. Once
authorized, such authorization for payroll deductions shall commence on the
first Offering Date after authorization is effected and shall remain effective
for all subsequent Offering Periods until the Participant withdraws from the
Plan as provided in Section 11 hereof or, subject to Section 6 hereof,
authorizes a change in the amount of his or her payroll deductions.
6. PAYROLL DEDUCTIONS.
(a) At the time a Participant authorizes payroll
deductions, he or she shall elect to have payroll deductions made on each payday
during subsequent Offering Periods at a rate between one percent (1%) and
fifteen percent (15%) of Base Salary (such percentage representing a whole
number percentage); PROVIDED, HOWEVER, that the
<PAGE>
Committee may, in its discretion and from time to time, limit payroll deductions
to a lesser percentage of Base Salary.
(b) All payroll deductions made by a Participant
shall be credited to his or her Account under the Plan. A Participant may not
make any additional payments into such Account.
(c) A Participant may increase or decrease his or her
rate of payroll deductions (within the limitations set forth in Section 6(a)
hereof) to be effective for the next Offering Period by authorizing a new rate
of payroll deductions at least fifteen (15) days before the beginning of such
Offering Period. A Participant may not increase or decrease the rate of payroll
deductions during an Offering Period to be effective for that Offering Period.
(d) A Participant must continue payroll deductions
for the duration of the Offering Period in order to exercise an Option in
accordance with Section 8 hereof. In the event that a Participant does not
continue payroll deductions for the entire Offering Period, such Participant
shall be treated as withdrawing from such Offering Period in accordance with
Section 11(a) hereof.
7. GRANT OF OPTION.
(a) On each Offering Date, each eligible Employee
participating in the Plan shall be granted an Option to purchase (at the per
share Option price) up to a number of shares of the Company's Common Stock
determined by dividing the Employee's to be accumulated payroll deductions (not
to exceed an amount equal to fifteen percent (15%) of his or her Base Salary, or
such lesser percentage of Base Salary as determined by the Committee, during the
applicable Offering Period) by the Option price, as determined in accordance
with Section 7(b).
(b) The Option price per share of such shares of
Common Stock shall be the lesser of (i) eighty-five percent (85%) of the Fair
Market Value of a share of the Common Stock of the Company on the Offering Date
or (ii) eighty-five percent (85%) of the Fair Market Value of a share of Common
Stock of the Company on the Closing Date.
8. EXERCISE OF OPTION. Unless a Participant withdraws from the
Plan as provided in Section 11 hereof, his or her Option for the purchase of
shares of Common Stock will be exercised automatically on the Closing Date, and
the maximum number of whole and fractional shares of Common Stock subject to the
Option will be purchased for him or her at the applicable Option price with the
accumulated payroll deductions in his or her Account. During his or her
lifetime, a Participant's Option to purchase shares of Common Stock hereunder is
exercisable only by him or her.
9. BROKER AND PARTICIPANT'S ACCOUNT WITH BROKER. The Broker is
authorized to open and maintain an Account for each Participant. The Company
reserves the right to change the designation of the Broker at any time without
prior notice to Participants and the Broker has reserved the right to terminate
its services as Broker under
<PAGE>
the Plan at any time. The Broker shall deliver to each Participant as promptly
as practicable, by mail or otherwise, all notices of meetings, proxy statements
and other materials distributed by the Company to its shareholders. The whole
and fractional shares in each Participant's Account shall be voted in accordance
with the Participant's signed proxy instructions duly delivered to the Broker by
mail or otherwise, in accordance with the rules applicable to stock listed on
the New York Stock Exchange.
10. DELIVERY OF CERTIFICATES. A Participant may request, in
accordance with Section 22 hereof, that the Company arrange for the delivery of
a certificate representing the number of whole shares of Common Stock of the
Company purchased upon exercise of the Participant's Option as promptly as
practicable after each Closing Date. A Participant may not require delivery for
a fractional share, but may instruct the Broker to sell the fractional share. In
connection with the delivery of certificates to a Participant, the Committee
may, in its sole discretion, impose a reasonable charge.
11. WITHDRAWAL; TERMINATION OF EMPLOYMENT.
(a) A Participant may withdraw all but not less than
all the payroll deductions credited to his or her Account under the Plan at any
time prior to the Closing Date by giving notice to the Committee in such form or
manner as the Committee may prescribe. All of the Participant's payroll
deductions credited to his or her Account will be paid to him or her as soon as
administratively possible after receipt of his or her notice of withdrawal and
his or her Option for the current Offering Period will be automatically
terminated, and no further payroll deductions for the purchase of shares of
Common Stock will be made during such Offering Period.
(b) Upon termination of the Participant's employment
prior to the Closing Date for any reason, including retirement or death, the
payroll deductions credited to his or her Account will be returned to him or her
or, in the case of his or her death, to the person or persons entitled thereto
under Section 16 hereof, as soon as administratively possible, and his or her
Option will be automatically terminated.
(c) In the event an Employee fails to remain in the
continuous employ of the Company or one of its Subsidiaries for at least twenty
(20) hours per week during the Offering Period in which the employee is a
Participant, he or she will be deemed to have elected to withdraw from the Plan
and the payroll deductions credited to his or her Account will be returned to
him or her as soon as administratively possible and his or her Option will be
terminated.
(d) A Participant's withdrawal from an Offering
Period will not have any effect upon his or her eligibility to participate in a
succeeding offering or in any similar plan which may hereafter be adopted by the
Company. However, in such a case, the Participant must authorize the resumption
of payroll deductions and the rate of such payroll deductions.
<PAGE>
12. NO INTEREST. No interest shall accrue on the payroll
deductions held in the Account of a Participant in the Plan.
13. STOCK.
(a) The maximum number of shares of Common Stock
which shall be made available for sale under the Plan shall be 600,000, subject
to adjustment upon changes in capitalization of the Company as provided in
Section 20 hereof. The shares of Common Stock to be sold to Participants under
the Plan may, at the election of the Company, be either treasury shares,
authorized but unissued shares or publicly traded shares. If at the termination
of any Offering Period the total number of shares of Common Stock which would
otherwise be subject to Options granted pursuant to Section 7(a) hereof exceeds
the number of shares of Common Stock then available under the Plan (after
deduction of all shares of Common Stock for which Options have been exercised or
are then outstanding), the Company shall promptly notify the Participants, and
shall, in its sole discretion (i) make a pro rata allocation of the shares of
Common Stock remaining available for Option grant in as uniform a manner as
shall be practicable and as it shall determine to be equitable, (ii) terminate
the Offering Period without issuance of any shares of Common Stock or (iii)
obtain shareholder approval for an increase in the number of shares of Common
Stock authorized under the Plan such that all Options could be exercised in
full. The Company may delay determining which of (i), (ii) or (iii) above it
shall decide to effect, and may accordingly delay issuances of any shares of
Common Stock under the Plan for such time as is necessary to attempt to obtain
shareholder approval for any increase in shares of Common Stock authorized under
the Plan. The Company shall promptly notify Participants of its determination to
effect (i), (ii) or (iii) above upon making such decision. A Participant may
withdraw all but not less than all the payroll deductions credited to his or her
Account under the Plan at any time prior to such notification from the Company.
In the event the Company determines to effect (i) or (ii) above, it shall
promptly upon such determination return to each Participant all payroll
deductions not applied towards the purchase of shares of Common Stock.
(b) The Participant will have no interest or voting
right in shares of Common Stock covered by his or her Option until such Option
has been exercised.
(c) Shares of Common Stock to be delivered to a
Participant under the Plan shall be registered in the name of the Participant.
14. DIVIDENDS. Cash dividends for shares of Common Stock in
Participants' Accounts under the Plan shall, as permitted by the Company in its
discretion, either be distributed to Participants directly or automatically
invested in shares of Common Stock at the full Fair Market Value on the date of
such investment as soon as administratively possible after such dividends are
paid by the Company. In the event cash dividends are automatically invested in
shares of Common Stock, such shares of Common Stock will be held in Accounts
under the Plan.
<PAGE>
15. ADMINISTRATION. The Plan shall be administered by the
Committee; PROVIDED, HOWEVER, that the day to day responsibilities with respect
to the administration of the Plan may be delegated to the Company or any officer
of the Company, as determined by the Committee. The administration,
interpretation or application of the Plan by the Committee, or such other person
or persons who have been delegated the responsibility to administer the Plan,
shall be final, conclusive and binding upon all Participants.
16. DESIGNATION OF BENEFICIARY. The beneficiary or
beneficiaries of the Participant to receive any shares of Common Stock and cash,
if any, from the Participant's Account under the Plan in the event of such
Participant's death prior to delivery to him or her of such shares of Common
Stock and cash shall be determined under the Company's Group Life Insurance
Plan. In the absence of a valid designation under the Company's Group Life
Insurance Plan or if no validly designated beneficiary survives the Participant
or if each surviving validly designated beneficiary is legally impaired or
prohibited from receiving shares of Common Stock and cash, if any, from the
Participant's Account under the Plan, then the Participant's beneficiary shall
be the Participant's estate.
17. TRANSFERABILITY. Neither payroll deductions credited to a
Participant's Account nor any rights with regard to the exercise of an Option or
to receive shares of Common Stock under the Plan may be assigned, transferred,
pledged or otherwise disposed of in any way (other than by will, the laws of
descent and distribution or as provided in Section 16 hereof) by the
Participant. Any such attempt at assignment, transfer, pledge or other
disposition shall be without effect, except that the Company may treat such act
as an election to withdraw funds in accordance with Section 11 hereof.
18. NO SEGREGATION OF FUNDS. The Company shall not be
obligated to segregate payroll deductions received or held by the Company under
the Plan. Such payroll deductions shall be used to purchase shares of Common
Stock under the Plan in accordance with Section 8 hereof.
19. REPORTS. Individual Accounts will be maintained for each
Participant in the Plan. Statements of Account will be given to Participants
within a reasonable period of time following each Closing Date.
20. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. Subject to any
required action by the shareholders of the Company, the number of shares of
Common Stock covered by each Option under the Plan which have not yet been
exercised and the number of shares of Common Stock which have been authorized
for issuance under the Plan but have not yet been placed under Option
(collectively, the "Reserves"), as well as the price per share of Common Stock
covered by each Option under the Plan which has not yet been exercised, shall be
proportionately adjusted for any increase or decrease in the
<PAGE>
number of issued shares of Common Stock resulting from a stock split or the
payment of a stock dividend (but only on the Common Stock) or any other increase
or decrease in the number of shares of Common Stock effected without receipt of
consideration by the Company; PROVIDED, HOWEVER, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration". Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issue by the Company of shares of stock
of any class, or securities convertible into or exercisable for shares of stock
of any class, shall affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of shares of Common Stock subject to an
Option.
The Board may, if it so determines in the exercise of
its sole discretion, also make provision for adjusting the Reserves, as well as
the price per share of Common Stock covered by each outstanding Option under the
Plan, in the event that the Company effects one or more reorganizations,
recapitalizations, rights offerings or other increases or reductions of shares
of its outstanding Common Stock, and in the event of the Company being
consolidated with or merged into any other corporation.
21. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. The Committee may at
any time amend, alter, suspend or discontinue the Plan, but no amendment,
alteration, suspension or discontinuation shall be made which would impair the
rights of any Participant under any Option theretofore granted without his or
her consent.
(b) SHAREHOLDER APPROVAL OF AMENDMENTS. The Company
shall obtain shareholder approval of any Plan amendment to the extent necessary
and desirable to comply with Rule 16b-3 promulgated under the Exchange Act or
with Section 423 of the Code (or any successor statute or rule or other
applicable law, rule or regulation), such shareholder approval to be obtained in
such a manner and to such a degree as is required by the applicable law, rule or
regulation.
(c) EFFECT OF AMENDMENT OR TERMINATION. Any such
amendment or termination of the Plan shall not affect Options already granted
hereunder and such Options shall remain in full force and effect as if this Plan
had not been amended or terminated.
22. NOTICES. All notices or other communications by a
Participant to the Company under or in connection with the Plan shall be deemed
to have been duly given when received in the form specified by the Company at
the location, or by the person, designated by the Company for the receipt
thereof. All notices or other communications to a Participant by the Company
shall be deemed to have been duly given when sent by the Company by regular mail
to the address of the Participant on the human resources records of the Company.
23. CONDITIONS UPON ISSUANCE OF SHARES OF COMMON STOCK. Shares
of Common Stock shall not be issued with respect to an Option unless the
exercise of such Option and the issuance and delivery of such shares of Common
Stock pursuant thereto shall comply with all applicable
<PAGE>
provisions of law, domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended, the Exchange Act, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange or automated
quotation system upon which the shares of Common Stock may then be listed or
quoted, and shall be further subject to the approval of counsel for the Company
with respect to such compliance.
As a condition to the exercise of an Option, the
Company may require the person exercising such Option to represent and warrant
at the time of any such exercise that the shares of Common Stock are being
purchased only for investment and without any present intention to sell or
distribute such shares of Common Stock if, in the opinion of counsel for the
Company, such a representation is required by any of the aforementioned
applicable provisions of law.
24. NO CONTRACT OF EMPLOYMENT. The Plan is not and shall not
be deemed to constitute a contract of employment between the Company and any
Employee or other individual, nor shall anything herein contained be deemed to
give any Employee or other individual any right to be retained in the Company's
employ or to in any way limit or restrict the Company's right or power to
discharge any Employee or other individual at any time and to treat him without
any regard to the effect which such treatment might have upon him as a
Participant of the Plan.
25. GOVERNING LAW. The Plan shall be construed in accordance
with and governed by the laws of the state of New York.
26. EFFECTIVE DATE AND APPROVAL OF PLAN BY SHAREHOLDERS. The
Plan shall become effective on October 1, 1999, SUBJECT HOWEVER, to receipt of
approval of the Plan by shareholders of the Company in accordance with Section
423(b)(2) of the Code.
<PAGE>
EXHIBIT 5
[LETTERHEAD OF SCHULTE ROTH & ZABEL LLP]
August 27, 1999
Morton's Restaurant Group, Inc.
3333 New Hyde Park Road
New Hyde Park, New York 11042
Dear Sirs:
We have acted as counsel to Morton's Restaurant Group, Inc., a
Delaware corporation (the "Company"), in connection with the preparation and
filing by the Company with the Securities and Exchange Commission (the
"Commission") of a Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
relating to the offer and sale of an aggregate of 600,000 shares of Common
Stock, par value $.01 per share, of the Company (the "Shares") issuable to
participants in the Company's Employee Stock Purchase Plan (the "Plan").
In this capacity, we have examined originals, telecopies or
copies, certified or otherwise identified to our satisfaction, of such records
of the Company and all such agreements, certificates of public officials,
certificates of officers or representatives of the Company and others, and such
other documents, certificates and corporate or other records as we have deemed
necessary or appropriate as a basis for this opinion.
In our examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons signing or delivering any
instrument, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies and the authenticity of the originals of such latter
documents.
Based upon the foregoing, and having regard for such legal
considerations as we deem relevant, we are of the opinion that the Shares, to
the extent constituting original issuance securities, have been duly authorized
and, when issued and delivered to plan participants in accordance with the terms
of the Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to this firm under the
heading "Legal Matters" in the Prospectus which forms a part thereof. In giving
such consent, we do not thereby admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Schulte Roth & Zabel LLP
<PAGE>
EXHIBIT 23.1
[LETTERHEAD OF KPMG LLP]
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Morton's Restaurant Group, Inc.:
We consent to the use of our report dated February 1, 1999 with respect to the
consolidated balance sheets of Morton's Restaurant Group, Inc. and subsidiaries
as of January 3, 1999 and December 28, 1997, and the related consolidated
statements of operations, stockholders' equity and cash flows for each of
the years in the three-year period ended January 3, 1999, incorporated herein by
reference.
KPMG LLP
Melville, New York
August 26, 1999
