AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 5, 1998
FILE NO. 333-49375
===================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3 AMENDMENT NO. 1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933 RICK'S CABARET INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
TEXAS 76-0458229
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
3113 BERING DRIVE, ROBERT L. WATTERS
HOUSTON, TEXAS 77057 3113 BERING DRIVE
(713) 785-0444 HOUSTON, TEXAS 77057
(Address of principal executive (713) 785-0444
offices, and including zip code and (Name and address of agent for
Registrant's area telephone number, service agent's telephone number,
including area code) including code)
With copies to:
ROBERT D. AXELROD,
5300 MEMORIAL DRIVE, SUITE 700,
HOUSTON, TEXAS 77007
(713) 861-1996
(713) 552-0202-FAX
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO
THE PUBLIC: As soon as practicable after the Registration
Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to a dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If the Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum
Amount to offering aggregate Amount of
Title of each class of be price offering registration
securities to be registered registered per share(1) price(1) fee
- ----------------------------- ---------- ------------ -------------- ------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 95,000 $ 2.25 $ 212,750.00 $ 63.06(2)
Common Stock, par value $0.01 134,500 $ 2.44 $ 328,180.00 $ 96.82
Common Stock, par value $0.01
underlying Options 500,000 $ 2.44 $ 1,220,000.00 $ 359.90
- ----------------------------- ---------- ------------ -------------- ------------
Total $ 519.78
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<FN>
(1) Estimated solely for the purpose of calculating the registration fee.
Calculated pursuant to Rule 457.
(2) Paid with original submission of this Form S-3.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVENESS DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
=====================================================================================
</TABLE>
<PAGE>
<TABLE>
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RICK'S CABARET INTERNATIONAL, INC.
Cross-Reference Sheet
showing location in the Prospectus of
Information Required by Items of Form S-3
FORM S-3 ITEM NUMBER AND CAPTION LOCATION IN
PROSPECTUS
<S> <C>
1. Front of Registration Statement and Outside Outside Front Cover Page of
Front Cover of Prospectus Prospectus
2. Inside Front Cover and Outside Back Cover Inside Front Cover and Outside
Pages of Prospectus Back Cover Pages of Prospectus
3. Summary Information and Risk Factors The Company; Risk Factors
4. Use of Proceeds Use of Proceeds
5. Determination of Offering Price Outside Front Cover Page; Use of
Proceeds
6. Dilution *
7. Selling Stockholders Selling Stockholder
8. Plan of Distribution Outside Front Cover Page; Risk
Factors; Plan of Distribution
9. Description of Securities to be Registered *
10. Interest of Named Experts and Counsel Legal Matters
11. Material Changes Recent Events
12. Incorporation by Reference of Certain Information Documents Incorporated by
Reference
13. Disclosure of Commission Position on
Indemnification Limitation on Director's
Liability; Indemnification
for Securities Act Liabilities
- -------------------------------
<FN>
(*) None or Not Applicable
</TABLE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED MAY 5, 1998
RICK'S CABARET INTERNATIONAL, INC.
729,500 SHARES OF COMMON STOCK
This Prospectus relates to the resale of 229,500 shares of common stock,
par value $0.01 per share (the "Common Stock"), of Rick's Cabaret International,
Inc. (the "Company") which may be offered and sold from time to time (the
"Stockholder Shares") by certain security holders of the Company (the "Selling
Stockholders"). This Prospectus further relates to the resale of 500,000 shares
of common stock par value $0.01 per share (the "Option Shares") underlying
options (the "Options") of the Company which may be offered and sold from time
to time if the options are exercised by other Selling Stockholders. Each Selling
Stockholder may from time to time sell all or any portion of the Common Stock in
the over-the-counter market, on any regional or national securities exchange on
which the Common Stock is listed or traded, in negotiated transactions or
otherwise, at prices then prevailing or related to the then current market price
or at negotiated prices. A current Prospectus must be in effect at the time of
the sale of the shares of Common Stock to which this Prospectus relates. The
Common Stock may be sold directly or through broker dealers, or in a
distribution by one or more underwriters on a firm commitment or a best efforts
basis. The Selling Stockholder and any broker-dealer who participates in the
distribution of the Common Stock may be deemed to be Underwriters
("Underwriters") within the meaning of the Securities Act of 1933, as amended
(the "Act"). Any commission received by any broker-dealer and any profit on
resale of Common Stock purchased by them may be deemed to be underwriting
commission under the Act. The Company will not receive any proceeds upon the
sale of the Common Stock offered hereby.
The Company's Common Stock and Warrants are quoted on the National
Association of Securities Dealer's NASDAQ Small Cap Market automated quotation
system under the symbol "RICK" and "RICKW", respectively. On April 29, 1998, the
closing price of the Company's Common Stock as reported by the National
Association of Securities Dealer's NASDAQ Small Cap Market was $2.41 per share.
FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED IN CONNECTION
WITH AN INVESTMENT IN THE COMMON STOCK, SEE THE "RISK FACTORS" SECTION OF THIS
PROSPECTUS BEGINNING ON PAGE 5.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Date of this Prospectus is May __, 1998
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS AND, IF GIVEN OR MADE, ANY SUCH INFORMATION OR REPRESENTATION
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY OTHER
PERSON. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCE, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY OR ITS SUBSIDIARIES SINCE THE DATE HEREOF.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY SECURITIES OTHER THAN THOSE TO WHICH IT RELATES OR AN OFFER TO
ANY PERSON IN ANY STATE WHERE SUCH OFFER WOULD BE UNLAWFUL.
<PAGE>
TABLE OF CONTENTS
SECTION PAGE
AVAILABLE INFORMATION 2
DOCUMENTS INCORPORATED BY REFERENCE 2
THE COMPANY 4
RISK FACTORS 5
RECENT EVENTS 15
USE OF PROCEEDS 17
PLAN OF DISTRIBUTION 17
SELLING STOCKHOLDERS 19
LIMITATION ON DIRECTOR'S LIABILITY; INDEMNIFICATION 20
LEGAL MATTERS 21
EXPERTS 21
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational 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
Commission. The Company will provide without charge to each person who receives
a copy of this Prospectus, upon written or oral request, a copy of any
information that is incorporated by reference in this Prospectus (not including
exhibits to the information that is incorporated by reference unless the
exhibits are themselves specifically incorporated by reference). Such request
should be directed to Rick's Cabaret International, Inc., Attention of Robert L.
Watters, 3113 Bering Drive, Houston, Texas 77057, tel. (713) 785-0444.
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Act with respect to the securities offered by this Prospectus.
This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information with
respect to the Company and this offering, reference is made to the Registration
Statement, including the exhibits filed therewith, as well as such reports,
proxy statements and other information filed with the Commission, which may be
inspected without charge at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. Copies of such
material may also be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. The Commission maintains a Web site on the Internet that contains
reports, proxy and information statements and other information regarding
issuers that file electronically with the Commission. The address of the site is
http://www.sec.gov. Visitors to the site may access such information by
searching the EDGAR data base on the site.
DOCUMENTS INCORPORATED BY REFERENCE
The Company hereby incorporates by reference in this Prospectus (i) the
Company's Annual Report on Form 10-KSB for the fiscal year ended September 30,
1997; and, (ii) the Company's Quarterly Report on Form 10-QSB for the fiscal
quarter ended December 31, 1997. All other reports filed by the Company pursuant
to Section 13(a) or 15(d) of the Exchange Act since September 30, 1997, are
hereby incorporated herein by reference.
<PAGE>
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14, or 15(d) of the Exchange Act, prior to the termination of this
offering, shall be deemed to be incorporated by reference into this Prospectus.
Any statement contained in a document incorporated or deemed to be incorporated
by reference in this Prospectus shall be deemed to be modified or superseded for
purposes of this Prospectus to the extent that a statement contained in this
Prospectus or any other subsequently filed document which also is or is deemed
to be incorporated by reference modifies or replaces such statement.
<PAGE>
THE COMPANY
The Company was organized in 1994 by Robert L. Watters to acquire all of
the outstanding capital stock of Trumps, Inc. ("Trumps"), a Texas corporation
formed in 1982, from Robert L. Watters, its sole shareholder. Since 1983, Trumps
has operated Rick's Cabaret ("Rick's"), a premiere adult nightclub offering
topless entertainment in Houston, Texas. Rick's Cabaret, which caters primarily
to businessmen, has developed a clientele base which includes professionals,
business executives and other individuals who tend to entertain more frequently
than the average person and who tend to have greater disposable income. From its
inception, the Company's objective was to provide a first-class entertainment
environment for the business consumer. To achieve this goal and reach its target
market, Rick's created an attractive, yet discreet environment, complimented by
a first-class bar and restaurant operation conducive to attracting businessmen
and out-of-town convention clientele.
In September, 1995, the Company acquired all of the capital stock of
Tantric Enterprises, Inc., Tantra Dance, Inc., and Tantra Parking, Inc.
(collectively "Tantra") from Mr. Watters. The Tantra companies own and operate
Tantra, a non-sexually oriented discotheque and billiard club in Houston, Texas.
In February, 1996, the Company formed RCI Entertainment, Louisiana, Inc., a
Louisiana corporation, for the purpose of administering, operating, managing and
leasing its new location at 315 Bourbon Street, New Orleans, Louisiana.
In December 1996, the Company acquired the land and building at its primary
Houston, Texas location in connection with the settlement of certain litigation,
thereby allowing the Company to remain at the location.
In January 1997, the Company formed RCI Entertainment (Minnesota), Inc., a
Minnesota corporation, for the purpose of acquiring, administering, operating
and managing its new location in Minneapolis, Minnesota. The acquisition of the
Minneapolis facility was completed in December 1997. The Company recently opened
its Minneapolis cabaret.
<PAGE>
RISK FACTORS
THE COMMON STOCK OFFERED HEREBY IS SPECULATIVE AND INVOLVES A HIGH DEGREE
OF RISK. IN ADDITION TO THE OTHER INFORMATION SET FORTH IN THIS PROSPECTUS, EACH
PROSPECTIVE INVESTOR SHOULD CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS BEFORE
MAKING AN INVESTMENT DECISION.
RECENT LOSSES AND ACCUMULATED DEFICIT
The Company incurred losses for the fiscal year ending September 30, 1997
of $(1,293,330) and an accumulated deficit of $(1,802,718) at September 30,
1997. For the first quarter of fiscal 1998 ended December 31, 1997, the Company
generated a net profit of $35,553. Revenues increased during the fiscal year
ending September 30, 1997 to $6,277,579 from $4,630,298 during the previous
fiscal year. During the first quarter of fiscal 1998, revenues increased to
$1,668,426 from $1,082,615 from the same quarter during the previous fiscal year
ended September 30, 1997. Losses have been largely attributable to operations
and the increase in costs associated with acquisition activities and the opening
of the New Orleans location and the Minneapolis location. The Company has
experienced decreased sales at its Houston location as a result of the current
level of competition and to the public perception of a recently enacted City of
Houston, Texas Ordinance (the "Ordinance"). Management believes that with the
opening of the Minneapolis location and recent cost reduction programs put into
place during fiscal 1997, that the losses incurred during the previous fiscal
year will likely be mitigated. See Risk Factors -- Necessary Permits -- Recent
Houston City Ordinance and Recent Events.
NECESSARY PERMITS -- RECENT HOUSTON CITY ORDINANCE
In addition to various regulatory requirements affecting the sale of
alcoholic beverages in the cities in which it operates, the location of a
topless cabaret is sometimes subject to a city ordinance. Accordingly, Rick's is
subject to such sexually oriented business ordinances of cities in which it
operates. Such ordinances deal generally with distance from schools, churches,
and other sexually oriented businesses and contain restrictions based on the
percentage of residences within the immediate vicinity of the sexually oriented
business, as well as the conduct of business within a club.
<PAGE>
In January 1997, the City Council of the City of Houston passed a
comprehensive new Ordinance regulating the location of and the conduct within
Sexually Oriented Businesses. The new Ordinance established new distances that
Sexually Oriented Businesses may be located to schools, churches, playgrounds
and other sexually oriented businesses. There were no provisions in the
Ordinance exempting previously permitted sexually oriented businesses from the
effect of the new Ordinance. In 1997, the Company was informed that Rick's
Cabaret at its location at 3113 Bering Drive failed to meet the requirements of
the Ordinance and accordingly the renewal of the Company's Business License at
that location was denied.
The Ordinance provided that a business which was denied a renewal of its
operating permit due to changes in distance requirements under the Ordinance
would be entitled to continue in operation for a period of time (the
"Amortization Period") if the owner were unable to recoup, by the effective date
of the Ordinance, its investment in the business that was incurred through the
date of the passage and approval of the Ordinance.
The Company filed a written request with the City of Houston requesting an
extension of time during which the Company could continue operations at its
original location under the Amortization Period provisions of the Ordinance
since the Company was unable to recoup its investment prior to the effective
date of the Ordinance. An administrative hearing (the "Hearing") was held by the
City of Houston to determine the appropriate Amortization Period to be granted
to the Company. At the Hearing, the Company was granted an amortization period
through July 1998. The Company has the right to appeal any decision of the
Hearing official to the district court in the State of Texas.
In May, 1997, the City of Houston agreed to defer implementation of the
Ordinance until the constitutionality of the entire Ordinance was decided by
court trial. In February 1998 the U.S. District Court for the Southern District
of Texas, Houston, Division, struck down certain provisions of the Ordinance,
including the provision mandating a 1,500 foot distance between a club and
schools, churches and other sexually oriented business, leaving intact the
provision of the 750 foot distance as it existed in the prior Houston, Texas
Ordinance.
<PAGE>
There are other provisions in the Houston, Texas Ordinance, such as
provisions governing the level of lighting in a sexually oriented business, the
distance between a customer and dancer while the dancer is performing in a state
of undress and provisions regarding the licensing of dancers that were upheld
which may be detrimental to the business by the Company. The Company, in concert
with other sexually oriented businesses, is appealing these aspects of the
Houston, Texas Ordinance.
It is unknown if the City of Houston will appeal the court's rulings. In
the event that the City of Houston is successful in an appeal, the Company's
Houston location could be out of compliance. Such an outcome could have an
adverse impact on the Company's future.
On April 1, 1998, the City of Houston began enforcing certain portions of
the Ordinance, including the distance requirement between a customer and a
dancer while dancing, and the requirement that dancers be licensed. The City of
Houston's enforcement of the recently implemented provisions of the Ordinance
could have an adverse impact on the Rick's location in Houston, Texas. The
current requirement of a three foot distance between a dancer and a customer
could reduce customer satisfaction and could result in fewer customers at the
Houston location. The requirement that a dancer be licensed may result in fewer
dancers working, which could have an adverse impact on the Houston location. It
is unknown what impact the enforcement of the Ordinance may have on the
Company's Houston location.
A dance hall permit is required for the operation of a discotheque in the
city of Houston. The dance hall permit is not a discretionary permit, but must
be granted by the city if the provisions of the applicable ordinance are
satisfied. A dance hall permit may be revoked or renewal may be refused if
certain criminal activities occur on the premises or if the person listed as the
applicant has committed certain named offenses. The loss of the dance hall
permit would have a material adverse effect on Rick's business, financial
condition and results of operations.
<PAGE>
RISK OF ADULT NIGHTCLUB OPERATIONS AND DINNER THEATER CONCEPT
Historically, the adult entertainment, restaurant and bar industry has been
an extremely volatile industry. The industry tends to be extremely sensitive to
the general local economy, in that when economic conditions are prosperous,
entertainment industry revenues increase, and when economic conditions are
unfavorable, entertainment industry revenues decline. Coupled with this economic
sensitivity is the trendy personal preferences of the customers who frequent
adult cabarets. The Company continuously monitors trends in its customers'
tastes and entertainment preferences so that, if necessary, it can make
appropriate changes which will allow it to remain one of the premiere adult
cabarets. However, any significant decline in general corporate conditions or
uncertainties regarding future economic prospects that affect consumer spending
could have a material adverse effect on the Company's business. In addition,
Rick's has historically catered to a clientele base from the upper end of the
market. Accordingly, further reductions in the amounts of entertainment expenses
allowed as deductions from income under the Internal Revenue Code of 1954, as
amended, could adversely affect sales to customers dependent upon corporate
expense accounts. The Company continues to plan for the opening of a cabaret
style dinner theater on the second floor of the New Orleans location. Completion
of the second floor facility is currently contingent upon obtaining additional
construction cost financing. Uncertainties relating to the opening of the
facility relate to the availability and suitability of financing, the timing of
the opening and availability of talent, and ultimately the overall market
acceptance of this concept.
FINANCIAL CONTROLS
A significant part of the revenues earned by the Company through its adult
nightclub operations will be collected in cash by full and part-time employees.
Comprehensive financial controls are required to minimize the potential loss of
revenue through theft or misappropriation of cash. To the extent that these
controls are not structured or executed properly, significant cash revenues
could be lost and profitability of the Company impaired. The Company believes
that it has implemented significant cash controls, including separating
management personnel from actually handling cash and utilizing a combination of
accounting and physical inventory control devices to deter theft and to ensure a
high level of security within its accounting practices and procedures.
<PAGE>
COMPETITION
The adult topless club entertainment business is highly competitive with
respect to price, service and location, as well as the professionalism of the
entertainment. Rick's competes with a number of locally-owned adult cabarets in
each of the cities where its clubs are located, some of whose names may enjoy
recognition that equals that of Rick's. Although the Company believes that it is
well-positioned to compete successfully, there can be no assurance that Rick's
will be able to maintain its high level of name recognition and prestige within
the marketplace.
DEPENDENCE ON AND AVAILABILITY OF MANAGEMENT; MANAGEMENT OF GROWTH
The success of the Company is substantially dependent upon the time,
talent, and experience of Robert Watters, its President and Chief Executive
Officer. The Company has entered into a three-year employment agreement with Mr.
Watters which extends to December 31, 2000. The loss of the services of Mr.
Watters would have a material adverse impact on the Company and its business. In
the event of Mr. Watters unavailability or in the event that he should become
temporarily disabled, the Company believes that it presently has in place
management systems and controls which are sufficiently strong to enable it to
run efficiently and effectively until Mr. Watters' return or until a replacement
could be found. No assurance can be given, however, that a replacement for Mr.
Watters could be located in the event of his unavailability. Further, in order
for the Company to continue to expand its business operations, it must continue
to improve and expand the level of expertise of its personnel and must attract,
train and manage qualified managers and employees to oversee and manage the
expanded operations. The Company's practice of training management without prior
adult topless club experience could result in a delay in the Company's
anticipated growth plans due to the time required to attract and train such
qualified managers and employees.
KEY EMPLOYEES
The Company's success depends on maintaining a high quality of female
entertainers and waitresses. Competition for topless entertainers in the adult
entertainment business is intense. The lack of availability of quality,
personable, attractive entertainers or the Company's inability to attract and
retain other key employees, such as kitchen personnel and bartenders, could
adversely impact the business of the Company.
<PAGE>
ABILITY TO MANAGE GROWTH
It is the intention of the Company to expand its existing business
operations by opening additional topless nightclubs in other metropolitan areas
under the trade name "Rick's Cabaret." The opening of additional topless
nightclubs will subject the Company to a variety of risks associated with
rapidly growing companies. In particular, the Company's growth may place a
significant strain on its accounting systems and internal controls and personal
overview of its day-to-day operations. Although management intends to ensure
that its internal controls remain adequate to meet the demands of further
growth, there can be no assurance that its systems, controls or personnel will
be sufficient to meet these demands. Inadequacies in these areas could have a
material adverse effect on Rick's business, financial condition and results of
operations. The Company has recruited its management staff exclusively from
outside of the topless industry in the belief that management which has not been
exposed to operating practices which the Company believes prevalent elsewhere in
the topless industry and with diverse management backgrounds will produce a
management team that operates with a high level of integrity. This practice of
training management without adult nightclub experience may cause the Company to
experience a shortage of qualified management necessary to fulfill its
anticipated growth plans due to the additional time required to train such
personnel.
PERMITS RELATING TO THE SALE OF ALCOHOL
Rick's derives a significant portion of its revenues from the sale of
alcoholic beverages. In Texas, the authority to issue a permit to sell alcoholic
beverages is governed by the Texas Alcoholic Beverage Commission (the "TABC"),
which has the authority, in its discretion, to issue the appropriate permits.
Rick's presently holds a Mixed Beverage Permit and a Late Hours Permit issued by
the State of Texas and permits to sell alcohol issued by the States of Louisiana
and Minnesota (the "Permits"). These Permits are subject to annual renewal,
provided Rick's has complied with all rules and regulations governing the
permits. Renewal of a permit may be subject to protest. In the event of a
protest, the regulatory authority may hold a hearing at which time the views of
interested parties are expressed. The liquor license authorities have the
authority after such hearing not to issue a renewal of the protested alcoholic
beverage permit. While Rick's has never been subject to a protest hearing
against the renewal of its Permits, there can be no assurance that such a
<PAGE>
protest could not be made in the future, nor can there be any assurance that the
Permits would be granted in the event such a protest was made. Other states may
have similar laws which may limit the availability of a permit to sell alcoholic
beverages or which may provide for suspension or revocation of a permit to sell
alcoholic beverages in certain circumstances. The temporary or permanent
suspension or revocations of either of the Permits or the inability to obtain
permits in areas of expansion would have a material adverse effect on the
revenues, financial condition and results of operations of the Company.
STATUS OF ENTERTAINERS AS INDEPENDENT CONTRACTORS
The Company believes its entertainers to be independent contractors and not
employees for federal income tax purposes and that the entertainers should be
treated as self-employed independent contractors under the income tax
withholding provisions of the Internal Revenue Code and under the Federal
Insurance Contributions Act and the Federal Unemployment Tax Act. In addition,
the Company believes the entertainers are independent contractors for purposes
of regulations administered by the United States Department of Labor. However,
the status of the entertainers as independent contractors is not free from
doubt. The Company has sought neither a ruling from either the Internal Revenue
Service or the Department of Labor nor an opinion of counsel as to the status of
its entertainers as independent contractors. After consultation with counsel,
the Company does not believe that it could obtain an opinion on this issue.
Moreover, the Company believes that any such opinion, if obtained, would be of
very limited value, given the inherently factual nature of the issue. To the
extent that a determination were made that the entertainers are not independent
contractors, but rather are employees for tax or labor purposes, and a similar
determination were not made as to other adult cabarets, the Company could be at
a competitive disadvantage with other adult cabarets. Moreover, such a
determination could result in the imposition of penalties against the Company
for its prior treatment, the effect of which could be material.
EXISTING LITIGATION
The Company and Mr. Watters are presently involved in certain litigation.
In DALLAS J. FONTENOT V. TRUMPS, INC. AND ROBERT L. WATTERS, Cause No. 94-057144
in the 127th District Court of Harris County, Texas (the "Fontenot Lawsuit"),
Mr. Fontenot sued the Company and Mr. Watters for alleged breaches of an
Agreement entered into in April, 1993 among Mr. Fontenot, the Company and Mr.
Watters. Mr. Fontenot alleges that Mr. Watters and the Company have breached
<PAGE>
this Agreement, but does not indicate the manner in which the breach has
occurred. The Company believes that it has fully complied with its obligations
under this Agreement. In March, 1998, each of the parties agreed to dismiss this
litigation with prejudice. The Settlement documents have been prepared and are
in the process of being executed by the parties.
UNINSURED RISKS
The Company maintains insurance in amounts it considers adequate for
personal injury and property damage to which the business of the Company may be
subject. As of September 1996, the Company maintains personal injury liquor
liability insurance, however, there can be no assurance that the Company may not
be exposed to potential liabilities in excess of the coverage provided by
insurance, which liabilities may be imposed pursuant to the Texas "Dram Shop"
statute or similar "Dram Shop" statutes or common law theories of liability in
other states where the Company may expand. The Texas "Dram Shop" statute
provides a person injured by an intoxicated person the right to recover damages
from an establishment that wrongfully served alcoholic beverages to such person
if it was apparent to the server that the individual being sold, served or
provided with an alcoholic beverage was obviously intoxicated to the extent that
he presented a clear danger to himself and others. An employer is not liable for
the actions of its employee who overserves if (i) the employer requires its
employees to attend a seller training program approved by the TABC; (ii) the
employee has actually attended such a training program; and (iii) the employer
has not directly or indirectly encouraged the employee to violate the law. It is
the policy of Rick's to require that all servers of alcohol working at Rick's be
certified as servers under a training program approved by the TABC, which
certification gives statutory immunity to the sellers of alcohol from damage
caused to third parties by those who have consumed alcoholic beverages at such
establishment pursuant to the Texas Alcoholic Beverage Code. There can be no
assurance, however, that uninsured liabilities may not arise which could have a
material adverse effect on the Company.
CONTROL BY MANAGEMENT
The Chief Executive Officer and Chairman of the Board of the Company owns
approximately 39% of the outstanding Common Stock of the Company. As a result,
management will be able to influence the election of directors and otherwise
influence the affairs of the Company for the foreseeable future.
<PAGE>
LIMITATIONS ON PROTECTION OF SERVICE MARKS
Rights of the Company to the tradenames "Rick's" and "Rick's Cabaret", are
established under the common law, based upon the Company's substantial and
continuous use of these trademarks in interstate commerce since at least as
early as 1987. "RICK'S AND STARS DESIGN" and "RICK'S CABARET" logos are
registered through service mark registrations issued by the United States Patent
and Trademark Office ("PTO").
There can be no assurance that these steps taken by the Company to protect
its Service Marks will be adequate to deter misappropriation of its protected
intellectual property rights. Litigation may be necessary in the future to
protect the Company's rights from infringement, which may be costly and time
consuming. The loss of the intellectual property rights owned or claimed by the
Company could have a material adverse affect on the Company.
POSSIBLE VOLATILITY OF COMMON STOCK PRICE
The market price of the Common Stock of the Company may be highly volatile,
as has been the case with the securities of many other small capitalization
companies. Additionally, in recent years, the securities markets have
experienced a high level of price and volume volatility and the market prices of
securities for many companies, particularly small capitalization companies, have
experienced wide fluctuations which have not necessarily been related to the
operating performances or underlying asset values of such companies. Securities
of issuers having relatively limited capitalization or securities recently
issued in a public offering are particularly susceptible to change based on
short-term trading strategies of certain investors.
NO CASH DIVIDENDS
The Company has never paid cash dividends on its Common Stock and the Board
of Directors does not anticipate paying cash dividends in the foreseeable
future. It currently intends to retain future earnings to finance the growth of
its business.
<PAGE>
ANTI-TAKEOVER EFFECTS OF ISSUANCE OF PREFERRED STOCK
The Board of Directors has the authority to issue up to 1,000,000 shares of
Preferred Stock, $.10 par value per share, in one or more series, to fix the
number of shares constituting any such series, and to fix the rights and
preferences of the shares constituting any series, without any further vote or
action by the stockholders. The issuance of Preferred Stock by the Board of
Directors could adversely affect the rights of the holders of Common Stock and
could prevent holders of common stock from receiving a potential premium for
their stock. For example, such issuance could result in a class of securities
outstanding that would have preferences with respect to voting rights and
dividends and in liquidation over the Common Stock, and could (upon conversion
or otherwise) enjoy all of the rights appurtenant to Common Stock. The Board's
authority to issue Preferred Stock could discourage potential takeover attempts
and could delay or prevent a change in control of the Company through merger,
tender offer, proxy contest or otherwise by making such attempts more difficult
to achieve or more costly. There are no issued and outstanding shares of
Preferred Stock; there are no agreements or understandings for the issuance of
Preferred Stock, and the Board of Directors has no present intention to issue
Preferred Stock.
LIMITATION ON DIRECTOR LIABILITY
The Company's Articles of Incorporation provide, as permitted by governing
Texas law, that a director of the Company shall not be personally liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty as
a director, with certain exceptions. These provisions may discourage
stockholders from bringing suit against a director for breach of fiduciary duty
and may reduce the likelihood of derivative litigation brought by stockholders
on behalf of the Company against a director. See, LIMITATION ON DIRECTORS'
LIABILITY; INDEMNIFICATION.
FORWARD-LOOKING STATEMENTS
This statement is being included in connection with the safe harbor
provision of the Private Securities Litigation Reform Act. This Prospectus
contains forward-looking statements. Such statements are based upon management's
current expectations, beliefs, and assumptions about future events, and are
other than statements of historical fact, and involve a number of risks and
uncertainties. In addition to those factors discussed herein, important factors
<PAGE>
that could cause actual results to differ materially from those in
forward-looking statements are, among others, the impact and implementation of
the sexually oriented business Ordinance of the City of Houston, the results of
the Company's Minneapolis location, the Company's expansion efforts, market
acceptance for the Company's services and products, competition, and the
availability of financing.
RECENT EVENTS
ACQUISITION OF MINNEAPOLIS CABARET
In December 1997, the Company completed its acquisition of real estate
located at 300 South and 3rd Street in downtown Minneapolis, Minnesota
consisting of land and a 14,000 square foot cabaret facility and the assets of
"Buns & Roses", an adult entertainment business that has operated there for two
years. The Company opened its new cabaret in March 1998. The Company offers
topless adult entertainment, in a similar format of and bearing the name "Rick's
Cabaret." The Cabaret is located at the intersection of two major downtown
streets and is located within walking distance of both the Metrodome, home to
the Minnesota Vikings and the Twins, and the Target Center, home to the
Minnesota Timberwolves. The City of Minneapolis has approved and granted a
liquor license to Rick's Cabaret which will permit the operation of a topless
cabaret as well as the ability to serve alcohol at the Location. The City of
Minneapolis was chosen as a site for expansion by the Company because of the
City's excellent demographic characteristics and vibrant nature of its downtown
entertainment district.
RECENT DEVELOPMENTS IN HOUSTON, TEXAS ORDINANCE
In January 1997, the City Council of the City of Houston passed a
comprehensive new Ordinance regulating the location of and the conduct within
Sexually Oriented Businesses. The new Ordinance established new distances that
Sexually Oriented Businesses may be located to schools, churches, playgrounds
and other sexually oriented businesses. There were no provisions in the
Ordinance exempting previously permitted sexually oriented businesses from the
effect of the new Ordinance. In 1997, the Company was informed that Rick's
Cabaret at its location at 3113 Bering Drive failed to meet the requirements of
the Ordinance and accordingly the renewal of the Company's Business License at
that location was denied.
<PAGE>
The Ordinance provided that a business which was denied a renewal of its
operating permit due to changes in distance requirements under the Ordinance
would be entitled to continue in operation for a period of time (the
"Amortization Period") if the owner were unable to recoup, by the effective date
of the Ordinance, its investment in the business that was incurred through the
date of the passage and approval of the Ordinance.
The Company filed a written request with the City of Houston requesting an
extension of time during which the Company could continue operations at its
original location under the Amortization Period provisions of the Ordinance
since the Company was unable to recoup its investment prior to the effective
date of the Ordinance. An administrative hearing (the "Hearing") was held by the
City of Houston to determine the appropriate Amortization Period to be granted
to the Company. At the Hearing, the Company was granted an amortization period
through July 1998. The Company has the right to appeal any decision of the
Hearing official to the district court in the State of Texas.
In May, 1997, the City of Houston agreed to defer implementation of the
Ordinance until the constitutionality of the entire Ordinance was decided by
court trial. In February 1998 the U.S. District Court for the Southern District
of Texas, Houston, Division, struck down certain provisions of the Ordinance,
including the provision mandating a 1,500 foot distance between a club and
schools, churches and other sexually oriented business, leaving intact the
provision of the 750 foot distance as it existed in the prior Houston, Texas
Ordinance.
There are other provisions in the Houston, Texas Ordinance, such as
provisions governing the level of lighting in a sexually oriented business, the
distance between a customer and dancer while the dancer is performing in a state
of undress and provisions regarding the licensing of dancers that were upheld
which may be detrimental to the business by the Company. The Company, in concert
with other sexually oriented businesses, is appealing these aspects of the
Houston, Texas Ordinance.
It is unknown if the City of Houston will appeal the court's rulings. In
the event that the City of Houston is successful in an appeal, the Company's
Houston location could be out of compliance. Such an outcome could have an
adverse impact on the Company's future.
<PAGE>
On April 1, 1998, the City of Houston began enforcing certain portions of
the Ordinance, including the distance requirement between a customer and a
dancer while dancing, and the requirement that dancers be licensed. The City of
Houston's enforcement of the recently implemented provisions of the Ordinance
could have an adverse impact on the Rick's location in Houston, Texas. The
current requirement of a three foot distance between a dancer and a customer
could reduce customer satisfaction and could result in fewer customers at the
Houston location. The requirement that a dancer be licensed may result in fewer
dancers working, which could have an adverse impact on the Houston location. It
is unknown what impact the enforcement of the Ordinance may have on the
Company's Houston location.
USE OF PROCEEDS
The Company will not receive any proceeds upon the resale of the Common
Stock by the Selling Stockholders. If all of the Options are exercised, the
Company will receive $400,000.00, which will be used by the Company for working
capital and general corporate purposes. The Company is required to pay the costs
associated with this Offering, which it estimates to be approximately
$10,000.00. The Selling Stockholders will not pay any of the costs of this
Offering.
PLAN OF DISTRIBUTION
Each Selling Stockholder may, from time to time, sell all or a portion of
his shares in transactions (which may include block transactions) in the
over-the-counter market, on any national or regional securities exchange in
which the Common Stock is listed or traded, in negotiated transactions or
otherwise, at prices then prevailing or related to the then current market price
or at negotiated prices. Resales by the purchasers of such shares may be made in
the same manner.
The Selling Stockholder may effect such transactions by selling his
securities directly to purchasers, through broker-dealers acting as agents for
the Selling Stockholder or to broker-dealers who may purchase shares as
principals and thereafter sell the securities from time to time in the
over-the-counter market, in negotiated transactions or otherwise. Such
broker-dealers, if any, may receive compensation in the form of discounts,
concessions or commissions from the Selling Stockholder and/or the purchasers
for whom such broker-dealers may act as agents or to whom they may sell as
<PAGE>
principals (which compensation as to a particular broker-dealer may be in excess
of customary commissions).
If the Company is notified by the Selling Stockholder that any material
arrangement has been entered into with a broker-dealer for the sale of the
Common Stock, the Company would be required to amend the Registration Statement
of which this Prospectus is a part and file a Prospectus Supplement to describe
the agreements between the Selling Stockholder and such broker-dealer relating
to the distribution.
The Selling Stockholder and any broker-dealers participating in the
distribution of the Common Stock covered by this Prospectus may be deemed to be
"underwriters" (within the meaning of Section 2(11) of the Act). Any commissions
received by them, as well as any proceeds from any sales as a principal by them,
may be deemed to be underwriting discounts and commissions under the Act.
The Company will pay certain costs and expenses incurred in connection with
the registration of the Stockholder Shares under the Act. The Company will not,
however, pay any commissions or any other fees in connection with the sale of
the Common Stock. There is no assurance that the Selling Stockholder will sell
any or all of the Common Stock.
<PAGE>
SELLING STOCKHOLDERS
The following table sets forth the name of the Selling Stockholders, the
number of shares of Common Stock offered by the Selling Stockholders, the number
of shares of Common Stock to be owned by the Selling Stockholders if all shares
were to be sold in the Offering and the percentage of the Company's outstanding
Common Stock that will be owned by the Selling Stockholders if all shares are
sold in the offering. The Selling Stockholders may offer all or a portion of the
shares for resale from time to time.
<TABLE>
<CAPTION>
Shares Shares Percentage
Owned Shares Owned After Owned After
Selling Before Offered Offering If All Offering If All
Stockholders(1) Offering For Sale Shares Sold Shares Sold
- ---------------- -------- -------- ----------- -------------------
<S> <C> <C> <C> <C>
Larry Holmberg(2) 95,000 95,000 -0- -0-%
Canine Limited(3) 34,500 34,500 -0- -0-%
Sun Merchant
Group, Inc.(3) 100,000 100,000 -0- -0-%
Adventure Capital
Corp.(3)(4) 200,000 200,000 -0- -0-%
Monterey Group
Corp.(3)(4) 150,000 150,000 -0- -0-%
TSH Accounting,
L.C.(3)(4) 150,000 150,000 -0- -0-%
- -----------------
<FN>
(1) Selling Stockholders have not and do not hold any position or office with
the Company or any of its affiliates.
(2) Mr. Holmberg acquired his shares from the Company in a transaction in which
Mr. Holmberg sold to the Company certain real estate and related assets located
in Minneapolis, Minnesota in December 1997.
(3) These securities were previously acquired from the Company in private
transactions.
(4) Assumes exercise of Option by Option Holders.
</TABLE>
<PAGE>
LIMITATION ON DIRECTOR'S LIABILITY; INDEMNIFICATION
Texas law authorizes corporations to limit or eliminate the personal
liability of directors to corporations and their stockholders for monetary
damages for breach of directors' fiduciary duty of care. The Articles of the
Company limit the liability of directors of the Company (in their capacity as
directors but not in their capacity as officers) to the Company or its
stockholders to the fullest extent permitted by Texas law. Specifically,
directors of the Company will not be personally liable for monetary damages for
breach of a director's fiduciary duty as a director, 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 Article 2.41
under the Texas Business Corporation Act ("TBCA"), or (iv) for any transactions
from which the director derived an improper personal benefit, whether or not the
benefit resulted from an action taken in the person's official capacity. Section
2.41 of the TBCA relates to directors' liability for unlawful dividends and
stock issuances.
The inclusion of this provision in the Articles may have the effect of
reducing the likelihood of derivative litigation against directors, and may
discourage or deter stockholders or management from bringing a lawsuit against
directors for breach of their duty of care, even though such an action, if
successful, might otherwise have benefited the Company and its stockholders.
The Company's Articles provide for the indemnification of its executive
officers and directors, and the advancement to them of expenses in connection
with any proceedings and claims, to the fullest extent permitted by the TBCA
law. The Articles include related provisions meant to facilitate the
indemnitees' receipt of such benefits. These provisions cover, among other
things: (i) specification of the method of determining entitlement to
indemnification and the selection of independent counsel that will in some cases
make such determination, (ii) specification of certain time periods by which
certain payments or determinations must be made and actions must be taken, and
(iii) the establishment of certain presumptions in favor of an indemnitee.
<PAGE>
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Act") may be permitted to directors, officers or controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company 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 a small
business issuer of expenses incurred or paid by a director, officer or
controlling person of the small business issuer 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 small
business issuer 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.
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed on for the
Company by Axelrod Smith & Kirshbaum of Houston, Texas.
EXPERTS
The consolidated balance sheets at September 30, 1997 and 1996 and the
related consolidated statements of operations, changes in stockholders' equity
and cash flows for the years ended September 30, 1997 and 1996 of Rick's Cabaret
International, Inc. incorporated by reference into this Prospectus and
Registration Statement have been audited by Jackson & Rhodes P.C., independent
auditors, as set forth in their report, and are incorporated by reference in
reliance upon such report, given upon the authority of such firm as experts in
accounting and auditing.
<PAGE>
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses to be incurred in
connection with the distribution of the securities being registered. The
expenses shall be paid by the Company.
SEC Registration Fee.....................................................$637.78
Printing and Engraving Expenses.........................................1,400.00
Legal Fees and Expenses.................................................6,500.00
Accounting Fees and Expenses..............................................500.00
Blue Sky Fees and Expenses..................................................0.00
Transfer Agent Fees and Miscellaneous.....................................962.22
Total. .......................................................$10,000.00
ITEM 15. LIMITATION ON DIRECTOR'S LIABILITY; INDEMNIFICATION
Texas law authorizes corporations to limit or eliminate the personal
liability of directors to corporations and their stockholders for monetary
damages for breach of directors' fiduciary duty of care. The Articles of the
Company limit the liability of directors of the Company (in their capacity as
directors but not in their capacity as officers) to the Company or its
stockholders to the fullest extent permitted by Texas law. Specifically,
directors of the Company will not be personally liable for monetary damages for
breach of a director's fiduciary duty as a director, 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 Article 2.41
under the Texas Business Corporation Act ("TBCA"), or (iv) for any transactions
from which the director derived an improper personal benefit, whether or not the
benefit resulted from an action taken in the person's official capacity. Section
2.41 of the TBCA relates to directors' liability for unlawful dividends and
stock issuances.
The inclusion of this provision in the Articles may have the effect of
reducing the likelihood of derivative litigation against directors, and may
discourage or deter stockholders or management from bringing a lawsuit against
directors for breach of their duty of care, even though such an action, if
successful, might otherwise have benefited the Company and its stockholders.
The Company's Articles provide for the indemnification of its executive
officers and directors, and the advancement to them of expenses in connection
with any proceedings and claims, to the fullest extent permitted by the TBCA
law. The Articles include related provisions meant to facilitate the
indemnitees' receipt of such benefits. These provisions cover, among other
things: (i) specification of the method of determining entitlement to
indemnification and the selection of independent counsel that will in some cases
make such determination, (ii) specification of certain time periods by which
certain payments or determinations must be made and actions must be taken, and
(iii) the establishment of certain presumptions in favor of an indemnitee.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Act") may be permitted to directors, officers or controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company 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 a small
business issuer of expenses incurred or paid by a director, officer or
controlling person of the small business issuer 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 small
business issuer 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.
<PAGE>
ITEM 16. EXHIBITS
The following exhibits are filed as part of this Registration Statement:
3.1* The Company's Articles of Incorporation, which are incorporated by
reference to the Company's Form SB-2 Exhibit 3.1 as effective with the
Commission on October 12, 1995.
3.2* The Company's By-laws, which are incorporated by reference to the
Company's Form SB-2 Exhibit 3.2 as effective with the Commission on
October 12, 1995.
4.1* Specimen of the Company's common stock certificate, which is
incorporated by reference to the Company's Form SB-2 Exhibit 4.1 as
effective with the Commission on October 12, 1995.
4.2* Instruments defining the rights of security holders, which are
incorporated by reference to the Company's Form SB-2 Exhibit 4.2 as
effective with the Commission on October 12, 1995.
5.1** Opinion of Axelrod, Smith & Kirshbaum
10.1* Asset Purchase Agreement in connection with acquisition of
Minneapolis facility.
10.2* Earnest Money Contract in connection with acquisition of Minneapolis
facility.
10.3* Amendment to Asset Purchase Agreement, Amendment to Earnest Money
Contract.
10.4* Second Amendment to Asset Purchase Agreement and to Earnest Money
Contract.
23.1** Consent of Axelrod, Smith & Kirshbaum (Included in Exhibit 5.1)
23.2** Consent of Jackson & Rhodes P.C.
- ---------
* Previously filed, or incorporated by reference.
** Filed herewith.
<PAGE>
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offer 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 additional or changed material information
with respect to the plan of distribution.
(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 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.
(4) i. That, for the purpose of determining liability under the
Securities Act of 1933, the information omitted from the
form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4), or 497(h) under the Securities Act of 1933
shall be deemed to be part of this registration statement as
of the time it was declared effective.
ii. That, for the purpose of determining liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or 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.
<PAGE>
SIGNATURES
In accordance with 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 of filing on Form S-3 Amendment No. 1 and authorized this
registration statement to be signed on its behalf by the undersigned, in the
City of Houston, State of Texas on April 29, 1998.
RICK'S CABARET INTERNATIONAL, INC.
By: /s/ ROBERT L. WATTERS
-------------------------------------------
Robert L. Watters, CHAIRMAN OF THE
BOARD, DIRECTOR, CHIEF EXECUTIVE
OFFICER, AND CHIEF ACCOUNTING OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated.
/s/ ROBERT L. WATTERS Chairman of the Board, Director, April 29, 1998
- ---------------------- Chief Executive Officer, and
Robert L. Watters Chief Accounting Officer
/s/ ERICH NORTON WHITE Director and April 29, 1998
- ---------------------- Executive Vice President
Erich Norton White
/s/ SCOTT C. MITCHELL Director April 27, 1998
- ----------------------
Scott C. Mitchell
/s/ MARTIN SAGE Director April 29, 1998
- ----------------------
Martin Sage
<PAGE>
Exhibit 5.1
AXELROD, SMITH & KIRSHBAUM
An Association of Professional Corporations
ATTORNEYS AT LAW
5300 Memorial Drive, Suite 700
Houston, Texas 77007-8292
Robert D. Axelrod
Paul D. Smith Telephone (713) 861-1996
Daniel R. Kirshbaum Facsimile (713) 552-0202
April 29, 1998
Robert L. Watters, President
Rick's Cabaret International, Inc.
3113 Bering Drive
Houston, Texas 77057
Dear Mr. Watters:
As counsel for Rick's Cabaret International, Inc., a Texas corporation
("Company"), you have requested our firm to render this opinion in connection
with the Registration Statement of the Company on Form S-3 Amendment No. 1
("Registration Statement") under the Securities Act of 1933, as amended (the
"Act"), filed with the Securities and Exchange Commission relating to the resale
by certain security holders of the Company of 729,500 shares of common stock,
par value $.01 per share (the "Common Stock"), consisting of 229,500 shares of
Common Stock held by certain security holders of the Company and 500,000 shares
of Common Stock underlying options held by certain security holders of the
Company.
We are familiar with the Registration Statement and the registration
contemplated thereby. In giving this opinion, we have reviewed the Registration
Statement and such other documents and certificates of public officials and of
officers of the Company with respect to the accuracy of the factual matters
contained therein as we have felt necessary or appropriate in order to render
the opinions expressed herein. In making our examination, we have assumed the
genuineness of all signatures, the authenticity of all documents presented to us
as originals, the conformity to original documents of all documents presented to
us as copies thereof, and the authenticity of the original documents from which
any such copies were made, which assumptions we have not independently verified.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Texas; and
2. The shares of Common Stock, held by certain security holders of the
Company, to be resold, are validly authorized, validly issued, fully
paid and nonassessable.
3. The shares of Common Stock underlying the Options to be issued upon
exercise of such Options are validly authorized and, upon exercise of
the Options in accordance with their terms, will be validly issued,
fully paid and nonassessable.
We consent to the to the filing of this opinion as an exhibit to the
Registration Statement and to the reference in the Registration Statement to
Axelrod, Smith, & Kirshbaum under the heading "Exhibits-Opinion."
Very truly yours,
/s/ Axelrod, Smith, & Kirshbaum
-------------------------------
Axelrod, Smith, & Kirshbaum
<PAGE>
Exhibit 23.2
The Board of Directors
Rick's Cabaret International, Inc.
We consent to the use of our Report dated December 18, 1997, relating to the
consolidated financial statements of Rick's Cabaret International, Inc. as of
September 30, 1997 and 1996, incorporated by reference herein and to the
reference to our firm under the heading "Experts" in the Registration Statement
on Form S-3.
/s/ Jackson & Rhodes P.C.
-------------------------
Jackson & Rhodes P.C.
April 23, 1998
Dallas, Texas
<PAGE>
