As filed with the Securities and Exchange Commission on October 2, 1998.
Registration No. -________
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________________
RICK'S CABARET INTERNATIONAL, INC.
(Exact name of issuer as specified in its charter)
Texas 76-0037324
(State of incorporation (I.R.S. Employer
or organization) Identification No.)
3113 Bering Drive, Houston, Texas 77057
(Address of principal executive offices)
CONSULTING AND ACQUISITION MANAGEMENT PLANS
(Full title of the plan)
___________________________
Robert L. Watters
President
Rick's Cabaret International, Inc.
3113 Bering Drive
Houston, Texas 77057
(713) 785-0444
(Name, address and telephone number, including area code, of agent for service)
____________________________
Copy to:
Robert D. Axelrod
Axelrod, Smith & Kirshbaum
5300 Memorial Drive, Suite 700
Houston, Texas 77007
______________________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
______________________
________________________________________________________________________________
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share(*) price(*) fee
- -------------- -------------- ------------ --------- ------------
<S> <C> <C> <C> <C>
Common stock, 450,000 shares $ 0.625 $ 281,250 $ 82.97
par value $.01
________________________________________________________________________________
<FN>
* Estimated pursuant to Rule 457(h) of the Securities Act of 1933, as
amended, solely for purposes of calculating the registration fee.
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed with the Securities and
Exchange Commission (the "Commission") by Rick's Cabaret International, Inc.
(the "Company"), are incorporated herein by reference and made a part hereof:
(a) the Company's Annual Report on Form 10-KSB for the fiscal year ended
September 30, 1997; (b) all other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since September 30, 1997 and (c) the description of
the securities offered hereby is incorporated by reference to the Company's
Registration Statement on Form SB-2, as amended (Registration Statement No.
33-88372, dated October 11, 1995) including any amendment or report filed for
the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the
date hereof and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by reference
herein and to be part hereof from the date of the filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
The Company's Common Stock is registered under Section 12 of the Securities
Exchange Act of 1934.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Axelrod, Smith & Kirshbaum, who has prepared this Registration Statement
and Opinion regarding the authorization, issuance and fully-paid and
non-assessable status of the securities covered by this Registration Statement,
has represented the Registrant in the past on certain legal matters. Excluding
any shares of common stock that may be issued to Robert D. Axelrod pursuant to
this Registration Statement, Mr. Axelrod owns 16,000 shares of common stock of
the Registrant and 20,000 Warrants to purchase shares of common stock. In
addition, Mr. Axelrod's children own 3,000 shares of Common stock of the
Registrant. Otherwise, his entire relationship with the Registrant has been as
legal counsel, and there are no arrangements or understandings which would in
any way cause him to be deemed an affiliate of the Registrant or a person
associated with an affiliate of the Registrant.
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ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Articles of Incorporation of the Company ("Articles") provide for
indemnification of Directors and Officers in accordance with the Texas Business
Corporation Act. Article Eight of the Articles provides as follows:
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, 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 the law, or for which the person is found liable to the
Corporation, (iii) under Article 2.41 of the Texas Business Corporation Act, or
(iv) for any transaction 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.
Article Nine of the Articles provides as follows:
Section 9.1 The Corporation shall indemnify any person who was or is a
------------
party or is threatened to be made a party to any threatened, pending, or
completed action, suit or proceeding, whether civil, criminal, administrative,
or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer employee or agent of
the corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement, actually and reasonably incurred by him in connection with such
action, suit or proceeding, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
---- ----------
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interest of the
Corporation and with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 9.2 The Corporation shall indemnify any person who was or is a
------------
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation and except that no indemnification shall be
made in respect of any claim, issue, or matter as to which such person shall
have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper.
Section 9.3 To the extent that a director, officer, employee or agent of
------------
the Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 9.1 and 9.2., or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
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Section 9.4 Any indemnification under Sections 9.1 and 9.2 of this Article
-----------
Nine (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Section 9.1 and 9.2.
Such determination shall be made (1) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding, or (2) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the shareholders in a vote that excludes
the shares held by directors who are parties to such action, suit or proceeding.
Section 9.5 Expenses incurred in defending a civil or criminal action,
------------
suit or proceeding shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the Board of
Directors upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent of his good faith belief that he has met the standard
of conduct necessary for indemnification under Sections 9.1 and 9.2 and a
written undertaking to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation as authorized in
this Article Nine.
Section 9.6 The indemnification and advancement of expenses provided by,
------------
or granted pursuant to, the other paragraphs of this Article Nine shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to acting in another capacity while holding such
office.
Section 9.7 The Corporation shall have the power to purchase and maintain
------------
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of this Article Nine.
Section 9.8 For the purpose of this Article Nine, references to "the
------------
Corporation" shall include, in addition to the resulting Corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article Nine with
respect to the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had continued.
Section 9.9 For purposes of this Article Nine, referenced to "other
------------
enterprises" shall include employee benefit plans; references to "fines" shall
-
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article Nine.
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Section 9.10 The indemnification and advancement of expenses provided by,
-------------
or granted pursuant to, this Article Nine shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
Section 9.11 The provisions of this Article Nine: (i) are for the benefit
------------
of, and may be enforced by, each person entitled to indemnification hereunder,
the same as if set forth in their entirety in a written instrument duly executed
and delivered by the Corporation and such person; and (ii) constitute a
continuing offer to all present and future persons entitled to indemnification
hereunder. The Corporation, by its filing of these Articles of Incorporation:
(a) acknowledges and agrees that each person entitled to indemnification
hereunder has relied upon and will continue to rely upon the provisions of this
Article Nine in accepting and serving in any of the capacities entitling such
person to indemnification hereunder; (b) waives reliance upon, and all notices
of acceptance of, such provisions by such persons; and (c) acknowledges and
agrees that no present or future person entitled to indemnification hereunder
shall be prejudiced in such person's right to enforce the provisions of this
Article Nine in accordance with their terms by any act or failure to act on the
part of the Corporation.
Section 9.12 No amendment, modification, or repeal of this Article Nine or
------------
any provision hereof shall in any manner terminate, reduce, or impair the right
of any past, present or future person entitled to indemnification hereunder to
be indemnified by the Corporation, nor the obligation of the Corporation to
indemnify any such person, under and in accordance with the provisions of this
Article Nine as in effect immediately prior to such amendment, modification, or
repeal with respect to claims arising from or relating to matters occurring, in
whole or in part, prior to such amendment, modification, or repeal, regardless
of when such claims may arise or be asserted.
The foregoing discussion of the Company's Articles and of the Texas
Business Corporation Act is not intended to be exhaustive and is qualified in
its entirety by such Articles and statutes, respectively.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a list of exhibits filed as part of the Registration
Statement:
Exhibit Number Description of Exhibit
--------------- ------------------------
5 Opinion of Axelrod, Smith & Kirshbaum
23(i) Consent of Jackson & Rhodes
23(ii) Consent of Axelrod, Smith & Kirshbaum
4
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ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
A. (1) To file during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this 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 this registration statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement; provided,
however, that paragraphs (a) (i) and (a) (ii) above do not apply if the
registration statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the 1934 Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement 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 of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
that 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,
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submit to a court of appropriate jurisdiction the question of 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.
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 Houston, State of Texas, on September 29, 1998
RICK'S CABARET INTERNATIONAL, INC.
By: /s/ Robert L. Watters
---------------------------
Robert L. Watters, Chairman of the
Board, Chief Executive Officer, and Chief
Accounting Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated:
Signature Title Date
- --------- ----- ----
/s/ Robert L. Watters Chairman of the Board, September 29, 1998
- ------------------------
Robert L. Watters Chief Executive Officer, and
Chief Accounting Officer
/s/ Erich Norton White Director and Executive September 29, 1998
- ------------------------
Erich Norton White Vice President
/s/ Eric Scott Langan Director and Executive September 29, 1998
- -----------------------
Eric Scott Langan Vice President--Operations
/s/ Scott C. Mitchell Director September 29, 1998
- -----------------------
Scott C. Mitchell
Director ____________, ____
- -----------------------
Martin Sage
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Exhibit Number Description of Exhibit
- --------------- ------------------------
5 Opinion of Axelrod, Smith & Kirshbaum
AXELROD, SMITH & KIRSHBAUM
An Association of Professional Corporations
ATTORNEYS AT LAW
5300 Memorial Drive, Suite 700
Houston, Texas 77007-8292
Telephone (713) 861-1996
Robert D. Axelrod, P.C. Facsimile (713) 552-0202
September 28, 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-8 ("Registration
Statement") under the Securities Act of 1933, as amended (the "Act"), filed with
the Securities and Exchange Commission relating to the registration of the
issuance of up to 450,000 shares of common stock, par value $.01 per share (the
"Common Stock"), to be issued in connection with the Consulting and Acquisition
Management Plans (the "Plans") to the consultants who will be compensated
through the Plans.
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
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2. The shares of Common Stock to be issued are validly authorized and, when
issued and delivered in accordance with the terms of the Plans, 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
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Exhibit Number Description of Exhibit
- --------------- ------------------------
23(i) Consent of Jackson & Rhodes
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Rick's Cabaret International, Inc.
We consent to the incorporation by reference in the registration statement on
Form S-8 of Rick's Cabaret International, Inc. of our report dated December 18,
1997, relating to the consolidated balance sheets of Rick's Cabaret
International, Inc. as of September 30, 1997 and 1996 and the related statements
of operations, changes in stockholders' equity and cash flows for the years then
ended, which report appears in the annual report on Form 10-KSB of Rick's
Cabaret International, Inc.
/s/ Jackson & Rhodes, P.C.
Dallas, Texas
September 28, 1998
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Exhibit Number Description of Exhibit
- --------------- ------------------------
23(ii) Consent of Axelrod, Smith & Kirshbaum
CONSENT OF COUNSEL
The consent of Axelrod, Smith & Kirshbaum, is contained in their opinion
filed as Exhibit 5 to this Registration Statement.
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