Amendment number 8 to Form S-1/A

As filed with the Securities and Exchange Commission on August 8, 2005

Registration No. 333-124285


UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 


 

AMENDMENT NO. 8

TO

FORM S-1

REGISTRATION STATEMENT

Under

The Securities Act of 1933

 


 

RUTH’S CHRIS STEAK HOUSE, INC.

(Exact name of registrant as specified in its charter)

 


 

Delaware   5812   72-1060618

(State or other jurisdiction of

incorporation or organization)

 

(Primary Standard Industrial

Classification Code Number)

 

(I.R.S. Employer

Identification No.)

 


 

3321 Hessmer Avenue

Metairie, Louisiana 70002

(504) 454-6560

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 


 

Craig S. Miller

President and Chief Executive Officer

3321 Hessmer Avenue

Metairie, Louisiana 70002

(504) 454-6560

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 


 

Copies of all communications, including communications sent to agent for service, should be sent to:

James S. Rowe

Kirkland & Ellis LLP

200 East Randolph Drive

Chicago, Illinois 60601

Telephone: (312) 861-2000

Telecopy: (312) 861-2200

 

Christopher C. Paci

Michael J. Schiavone

Shearman & Sterling LLP

599 Lexington Avenue

New York, New York 10022

Telephone: (212) 848-4000

Telecopy: (212) 844-7179

Approximate date of commencement of proposed sale to the public:    As soon as practicable after this Registration Statement becomes effective.

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, check the following box:  ¨

If this Form is filed to registered additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please 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 this Form is a post-effective amendment filed pursuant to Rule 462(d) 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.  ¨

The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective 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 or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.



Explanatory Note

 

This Amendment No. 8 to the Registrant’s Registration Statement on Form S-1 (Commission File No. 333-124285) is being filed solely for the purpose of filing Exhibits 5.1 and 23.2 thereto, and no changes or additions are being made hereby to the prospectus that forms a part of the Registration Statement. Accordingly, the prospectus is being omitted from this filing.


PART II

 

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 13. Other Expenses of Issuance and Distribution

 

The following table sets forth the costs and expenses, other than underwriting discounts and commissions, payable by Ruth’s Chris Steak House, Inc. in connection with the offer and sale of the securities being registered. All amounts are estimates except the SEC registration fee and the NASD filing fee.

 

SEC registration fee

   $ 29,913

NASD filing fee

   $ 25,915

Nasdaq listing fee

   $ 100,000

Transfer Agent’s fee

   $ 15,000

Printing and engraving costs

   $ 350,000

Legal fees and expenses

   $ 1,000,000

Accounting fees and expenses

   $ 600,000

Miscellaneous

   $ 479,172
    

Total

   $ 2,600,000
    

 

Item 14. Indemnification of Directors and Officers

 

We are incorporated under the laws of the State of Delaware. Section 145 (“Section 145”) of the General Corporation Law of the State of Delaware (the “DGCL”) provides that a Delaware corporation may indemnify any person who was, is or is threatened to be made, 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 such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was illegal. A Delaware corporation may indemnify any persons who are, were or are threatened to be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation by reasons of the fact that such person is or was a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests, provided that no indemnification is permitted without judicial approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director has actually and reasonably incurred.

 

Section 145 further authorizes a corporation 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 or 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 otherwise have the power to indemnify him under Section 145.

 

Our amended and restated certificate of incorporation provides that we must indemnify our directors and officers to the fullest extent authorized by the DGCL and must also pay expenses incurred in defending any such

 

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proceeding in advance of its final disposition upon delivery of an undertaking, by or on behalf of an indemnified person, to repay all amounts so advanced if it should be determined ultimately that such person is not entitled to be indemnified under this section or otherwise.

 

The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, provision of our amended and restated certificate of incorporation, our by laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

We maintain insurance to protect us and our directors and officers against any expense, liability or loss, whether or not we would have the power to indemnify such persons against such expense, liability or loss under applicable law.

 

Item 15. Recent Sales of Unregistered Securities

 

During the three-year period preceding the date of the filing of this registration statement, we have issued securities in the transactions described below without registration under the Securities Act. These securities were offered and sold in reliance upon exemptions from the registration requirements provided by Section 4(2) of the Securities Act and Regulation D under the Securities Act relating to sales not involving any public offering and/or Rule 701 under the Securities Act relating to transactions occurring under compensatory benefit plans.

 

On November 8, 2004, pursuant to our 2004 Restricted Stock Plan, we sold 1,167,487 shares of restricted stock for less than $0.01 per share to a group of directors and senior managers consisting of Craig S. Miller, Geoffrey D. K. Stiles, Thomas J. Pennison, Jr., Anthony M. Lavely, David L. Cattell, James G. Cannon, Alan Vituli and Carla R. Cooper.

 

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Item 16. Exhibits and Financial Statement Schedules

 

(a) Exhibits.

 

Reference is made to the attached Exhibit Index, which is incorporated by reference herein.

 

(b) Financial Statement Schedules

 

Schedule II—Valuation and Qualifying Accounts for the fiscal year ended December 29, 2002, December 28, 2003 and December 26, 2004 and for the fiscal quarter ended March 27, 2005. All other schedules have been omitted because they are not required or because the information is presented in the notes to the financial statements.

 

Schedule II—Ruth’s Chris Steak House, Inc. Valuation and Qualifying Accounts

(in thousands)

 

Column A


   Column B

   Column C

    Column D

   Column E

   Column F

Description


   Balance at
beginning
of period


   Additions
charged to costs
and expenses or
revenues


    Additions
charged to
other accounts


   Deductions (a)

   Balance
at end of
period


Quarter Ended March 27, 2005

                         

Allowance for doubtful accounts

   275    16           291

Medical claims reserve

   585    1,045     23    999    654

Workers’ compensation reserve

   381    318        301    398

Legal settlements

   1,735              1,735
    
  

 
  
  

Total

   2,976    1,379     23    1,300    3,078
    
  

 
  
  

Year Ended December 26, 2004

                         

Allowance for doubtful accounts

   174    101           275

Medical claims reserve

   584    4,274     633    4,906    585

Workers’ compensation reserve

   363    1,224     15    1,221    381

Legal settlements

   110    1,625  (b)         1,735
    
  

 
  
  

Total

   1,231    7,224     648    6,127    2,976
    
  

 
  
  

Year Ended December 28, 2003

                         

Allowance for doubtful accounts

   43    131           174

Medical claims reserve

   456    4,775     877    5,524    584

Workers’ compensation reserve

   133    1,129     42    941    363

Legal settlements

   110              110
    
  

 
  
  

Total

   742    6,035     919    6,465    1,231
    
  

 
  
  

Year Ended December 29, 2002

                         

Allowance for doubtful accounts

   23    20           43

Medical claims reserve

   485    3,662     88    3,779    456

Workers’ compensation reserve

   28    1,163     52    1,110    133

Legal settlements

      110           110
    
  

 
  
  

Total

   536    4,955     140    4,889    742
    
  

 
  
  

(a)   Principally cash payments and reserve reversals.
(b)   Reserve of $1,625 related to a labor code class action lawsuit filed in Superior Court of California.

 

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Item 17. Undertakings

 

The undersigned registrant hereby undertakes:

 

1. For purposes of determining any liability under the Securities Act, 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 shall be deemed to be part of this registration statement as of the time it was declared effective.

 

2. For the purpose of determining any liability under the Securities Act, 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.

 

The undersigned registrant also hereby undertakes to provide the underwriters at the closing specified in the Underwriting Agreement, certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

 

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 SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. In the event that a claim for indemnification by the registrant 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 Securities Act and will be governed by the final adjudication of such issue.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Amendment No. 8 to Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Metairie, State of Louisiana, on August 8, 2005.

 

RUTH’S CHRIS STEAK HOUSE, INC.

By:

 

/S/    CRAIG S. MILLER


Name:   Craig S. Miller
Title:   President and Chief Executive Officer

 

Pursuant to the requirements of the Securities Act, this Amendment No. 8 to Registration Statement on Form S-1 has been signed by the following persons in the capacities indicated on August 8, 2005.

 

Signature


  

Title


/S/    CRAIG S. MILLER


Craig S. Miller

  

President, Chief Executive Officer and Director (Principal Executive Officer)

/S/    THOMAS J. PENNISON, JR.


Thomas J. Pennison, Jr.

  

Chief Financial Officer and Vice President, Finance (Principal Financial and Accounting Officer)

*


Robin P. Selati

  

Director

*


Carla Cooper

  

Director

*


Bannus B. Hudson

  

Director

*


Alan Vituli

  

Director

 

*By:

 

/s/    THOMAS J. PENNISON, JR.


   

Thomas J. Pennison, Jr.,

Attorney-in-Fact

 

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EXHIBIT INDEX

 

EXHIBIT NO.

  

DESCRIPTION


1.1**    Form of Underwriting Agreement.
3.1**    Amended and Restated Certificate of Incorporation of the Registrant.
3.2**    Form of Restated Bylaws of the Registrant.
4.1**    Form of Certificate of Common Stock of the Registrant.
5.1    Opinion of Kirkland & Ellis LLP.
10.1**    Transaction and Merger Agreement, dated as of July 16, 1999, among the Registrant, RUF Merger Corp., Madison Dearborn Capital Partners III, L.P., Madison Dearborn Special Equity III, L.P. and Special Advisors Fund I, LLC.
10.2**    Shareholders Agreement between the Registrant, Madison Dearborn Capital Partners III, L.P., Madison Dearborn Special Equity III, L.P., Special Advisors Fund I, LLC., First Union Investors, Inc., GS Mezzanine Partners, LP., GS Mezzanine Partners Offshore and each of the stockholders of the Registrant identified as Investors therein.
10.3**    Registration Agreement between the Registrant, Madison Dearborn Capital Partners III, L.P., Madison Dearborn Special Equity III, L.P. and Special Advisors Fund I, LLC, First Union Investors, Inc., GS Mezzanine Partners, LP., GS Mezzanine Partners Offshore, and each of the stockholders of the Registrant identified as Investors therein.
10.4**    License Agreement, dated as of July 16, 1999, between Ruth U. Fertel and the Registrant.
10.5**    Securities Purchase Agreement between the Registrant and First Union Investors, Inc.
10.6**    Common Stock Purchase Warrant Certificate No. W-l issued to First Union Investors, Inc. in connection with warrants to purchase up to 37,735.849 shares of the Class B Common Stock of the Registrant.
10.7**    Certificate of Chief Financial Officer of Registrant under Common Stock Purchase Warrant, dated November 8, 2004.
10.8**    Purchase Agreement among the Registrant, the subsidiary guarantors identified therein, GS Mezzanine Partners, L.P. and GS Mezzanine Partners Offshore, L.P. relating to $45,000,000 Aggregate Principal Amount of 13% Senior Subordinated Notes Due 2006 and Warrants to Purchase 28,301.887 shares of Common Stock.
10.9**    Common Stock Purchase Warrant Certificate No. W-2 issued to GS Mezzanine Partners, L.P. in connection with warrants to purchase up to 18,413.837 shares of the Class A Common Stock of the Registrant.
10.10**    Certificate of Chief Financial Officer of Registrant under Common Stock Purchase Warrant, dated November 8, 2004.
10.11**    Common Stock Purchase Warrant Certificate No. W-3 issued to GS Mezzanine Partners Offshore, L.P. in connection with warrants to purchase up to 9,888.050 shares of Class A Common Stock.
10.12**    Certificate of Chief Financial Officer of Registrant under Common Stock Purchase Warrant, dated November 8, 2004.
10.13**    2005 Long-Term Equity Incentive Plan.
10.14**    2004 Restricted Stock Plan.
10.15**    Amendment No. 1 to the 2004 Restricted Stock Plan.
10.16**    Form of Restricted Stock Agreement.

 

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EXHIBIT NO.

  

DESCRIPTION


10.17**    2000 Stock Option Plan.
10.18**    Form of Stock Option Agreement under 2000 Stock Option Plan.
10.19**    Employment agreement of Craig S. Miller.
10.20**    Employment agreement of Geoffrey D.K. Stiles.
10.21**    Credit Agreement, dated March 11, 2005, among the Registrant, as Borrower, the Lenders listed therein, as Lenders and Wells Fargo Bank, N.A., as Administrative Agent.
10.22**    Form of Stock Option Agreement under 2005 Long-Term Equity Incentive Plan.
21.1**    List of Subsidiaries of the Registrant.
23.1**    Consent of KPMG LLP.
23.2        Consent of Kirkland & Ellis LLP (included in Exhibit 5.1).
24.1**    Powers of Attorney.
24.2**    Power of Attorney for Bannus B. Hudson.

**   Filed previously.

 

E-2

Opinion of Kirkland & Ellis

Exhibit 5.1

KIRKLAND & ELLIS LLP

AND AFFILIATED PARTNERSHIPS

 

200 East Randolph Drive

Chicago, Illinois 60601

 

312 861-2000

 

www.kirkland.com

 

August 8, 2005

 

Ruth’s Chris Steak House, Inc.

3321 Hessmer Avenue

Metairie, Louisiana 70002

 

Ladies and Gentlemen:

 

We are acting as special counsel to Ruth’s Chris Steak House, Inc., a Delaware corporation (the “Company”), in connection with the proposed registration by the Company of 14,950,000 shares of its Common Stock, par value $0.01 per share (the “Common Stock”), which includes 1,950,000 shares of Common Stock to cover over-allotments, if any, pursuant to a Registration Statement on Form S-1 (Registration No. 333-124285), originally filed with the Securities and Exchange Commission (the “Commission”) on April 25, 2005 under the Securities Act of 1933, as amended (the “Act”) (such Registration Statement, as amended or supplemented, is hereinafter referred to as the “Registration Statement”). The shares of Common Stock to be issued and sold by the Company pursuant to the Registration Statement are referred to herein as the “Firm Shares,” the shares of Common Stock to be sold by the selling stockholders identified in the Registration Statement are referred to herein as the “Secondary Shares” and the Firm Shares and Secondary Shares are collectively referred to herein as the “Shares.”

 

In that connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments as we have deemed necessary for the purposes of this opinion, including (i) the corporate and organizational documents of the Company, including the Amended and Restated Certificate of Incorporation of the Company (the “Amended and Restated Certificate”) filed with the Secretary of State of the State of Delaware on August 1, 2005 and (ii) minutes and records of the corporate proceedings of the Company with respect to the issuance and sale of the Firm Shares and the original issuance of the Secondary Shares.


For purposes of this opinion, we have assumed the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as copies and the authenticity of the originals of all documents submitted to us as copies. We have also assumed the legal capacity of all natural persons, the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, the authority of such persons signing on behalf of the parties thereto other than the Company and the due authorization, execution and delivery of all documents by the parties thereto other than the Company. We have not independently established or verified any facts relevant to the opinions expressed herein, but have relied upon statements and representations of officers and other representatives of the Company and others.

 

Based upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set forth below, we are of the opinion that:

 

(1)     The Firm Shares are duly authorized, and, when the Registration Statement becomes effective under the Act, and when appropriate certificates representing the Firm Shares are duly countersigned and registered by the Company’s transfer agent/registrar and delivered to the Company’s underwriters against payment of the agreed consideration therefor in accordance with the Underwriting Agreement, the Firm Shares will be validly issued, fully paid and nonassessable.

 

(2)    The Secondary Shares have been duly authorized, validly issued and fully paid and are non-assessable.

 

Our opinion expressed above is subject to the qualification that we express no opinion as to the applicability of, compliance with, or effect of any laws except Delaware corporate law (including the statutory opinions, all applicable provisions of the Delaware constitution and reported judicial decisions interpreting the foregoing).

 

We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. We also consent to the reference to our firm under the heading “Legal Matters” in the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission. This opinion and consent may be incorporated by reference in a subsequent registration statement on Form S-1 filed pursuant to Rule 462(b) under the Act with respect to the registration of additional securities for sale in the offering contemplated by the Registration Statement and shall cover such additional securities, if any, registered on such subsequent registration statement.

 

We do not find it necessary for the purposes of this opinion, and accordingly we do not purport to cover herein, the application of the securities or “Blue Sky” laws of the various states to the issuance and sale of the Firm Shares and the sale of the Secondary Shares.

 

This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein. This opinion speaks only as of the date that the Registration Statement becomes effective under the Act and we assume no obligation to revise or supplement this opinion after the date of effectiveness should the General Corporation Law of the State of Delaware be changed by legislative action, judicial decision or otherwise after the date hereof.

 

Sincerely,

 

/s/ Kirkland & Ellis LLP

 

KIRKLAND & ELLIS LLP