sec document
As filed with the Securities and Exchange Commission on December 20, 2004
Registration No. 333-______
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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LONE STAR STEAKHOUSE & SALOON, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 5812 48-1109495
(State or Other (Primary Standard Industrial (I.R.S. Employer
Jurisdiction of Classification Code Number) Identification Number)
Incorporation or
Organization)
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2004 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
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JAMIE B. COULTER
CHIEF EXECUTIVE OFFICER
224 EAST DOUGLAS, SUITE 700
WICHITA, KANSAS 67202
COPY TO:
STEVEN WOLOSKY, ESQ.
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
PARK AVENUE TOWER
65 EAST 55TH STREET
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 451-2300
FACSIMILE: (212) 451-2222
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FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT
(Approximate Date of Commencement of Proposed Sale to the Public)
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Amount to be Offering Price Aggregate Offering Registration
Securities to be Registered Registered (1) per Share Price Fee
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Common stock, par value $.01 per share: 3,000,000 $26.695 (2) $80,085,000 (2) $9,426
shares authorized and reserved for issuance
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(1) Pursuant to Rule 416, the registration statement also covers such
indeterminate additional shares of common stock as may become issuable as a
result of any future anti-dilution adjustment in accordance with the terms
of the 2004 Stock Option Plan (the "Plan").
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) and (c) under the Securities Act of 1933 on the
basis of the average of the high and low prices reported for shares of
common stock of the Registrant on the Nasdaq National Market on December
17, 2004.
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EXPLANATORY NOTES
Lone Star Steakhouse & Saloon, Inc. has prepared this registration
statement in accordance with the requirements of Form S-8 under the Securities
Act of 1933, as amended (the "Securities Act"), to register shares of our common
stock, $0.01 par value per share, issuable under our 2004 Stock Option Plan (the
"Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
We will provide documents containing the information specified in Part 1 of
Form S-8 to employees as specified by Rule 428(b)(1) under the Securities Act.
Pursuant to the instructions to Form S-8, we are not required to file these
documents either as part of this registration statement or as prospectuses or
prospectus supplements pursuant to Rule 424 under the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Lone Star Steakhouse & Saloon, Inc. (the
"Registrant") with the Commission are incorporated by reference in this
registration statement on Form S-8 (the "Registration Statement"):
(1) Our Annual Report for the period ended December 30, 2003 on Form 10-K
filed March 10, 2004, as amended on Form 10-K/A filed April 28, 2004;
(2) Our Quarterly Report on Form 10-Q for the quarter ended September 7,
2004 filed October 18, 2004;
(3) Our Quarterly Report on Form 10-Q for the quarter ended June 15, 2004
filed July 26, 2004;
(4) Our Quarterly Report on Form 10-Q for the quarter ended March 23, 2004
filed May 5, 2004;
(5) Our Current Report on Form 8-K, filed January 7, 2004;
(6) Our Current Report on Form 8-K, filed January 30, 2004;
(7) Our Current Report on Form 8-K, filed March 8, 2004;
(8) Our Current Report on Form 8-K, filed April 9, 2004;
(9) Our Current Report on Form 8-K, filed April 14, 2004;
(10) Our Current Report on Form 8-K, filed April 15, 2004;
(11) Our Current Report on Form 8-K, filed April 23, 2004;
(12) Our Current Report on Form 8-K, filed May 5, 2004;
(13) Our Current Report on Form 8-K, filed May 28, 2004;
(14) Our Current Report on Form 8-K, filed June 30, 2004, as amended;
(15) Our Current Report on Form 8-K, filed July 9, 2004;
(16) Our Current Report on Form 8-K, filed August 17, 2004;
(17) Our Current Report on Form 8-K, filed August 26, 2004;
(18) Our Current Report on Form 8-K, filed September 2, 2004;
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(19) Our Current Report on Form 8-K, filed September 24, 2004, as amended;
(20) Our Current Report on Form 8-K, filed October 6, 2004;
(21) Our Current Report on Form 8-K, filed October 14, 2004;
(22) Our Current Report on Form 8-K, filed October 18, 2004;
(23) Our Current Report on Form 8-K, filed November 12, 2004;
(24) Our Current Report on Form 8-K, filed November 16, 2004;
(25) Our Current Report on Form 8-K, filed November 18, 2004;
(26) Our Current Repot on Form 8-K, filed December 20, 2004;
(27) The description of our common stock contained in our Registration
Statement on Form 8-A, filed March 5, 1992 pursuant to Section 12(g) of the
Securities Exchange Act of 1934, as amended.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, prior to the filing of a post-effective amendment which
indicates that all securities offered herein 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 respective dates of filing of
such documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof or of the related prospectus to the extent that a
statement contained herein or in any other subsequently filed document which is
also incorporated or deemed to be incorporated 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
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Certificate of Incorporation of the Registrant provides that we shall
indemnify to the fullest extent permitted by Delaware General Corporation Law,
or the DGCL, any person whom it may indemnify thereunder, including the
directors, officers, employees and agents of the Registrant. In addition, the
Registrant's Certificate of Incorporation eliminates, to the extent permitted by
the DGCL, personal liability of directors to the Registrant and its stockholders
for monetary damages for breach of fiduciary duty.
The Registrant's authority to indemnify its directors and officers is
governed by the provisions of Section 145 of the DGCL, as follows:
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(a) A corporation shall have power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
her equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation 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 of Chancery or 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 the Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(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 present or
former director, officer, employee or agent is proper in the circumstances
because the person has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made, with
respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not parties to
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such action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4)
by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director
in defending any civil, criminal, administrative or investigative action, suit
or proceeding may be paid by the corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified by the
corporation as authorized in this section. Such expenses (including attorneys'
fees) incurred by former directors and officers or other employees and agents
may be so paid upon such terms and conditions, if any, as the corporation deems
appropriate.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this section shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have 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 such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would have the power to
indemnify such person against such liability under this section.
(h) For purposes of this section, 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 this section with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any 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 such person
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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
section.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this section 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.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
herein determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees).
The Registrant has entered into Indemnification Agreements with each of its
directors and certain executive officers (as well as directors and certain
executive officers of the Registrant's subsidiaries), whereby it has agreed to
indemnify, to the fullest extent permitted by applicable law, each such director
and officer from and against any and all expenses (including attorneys' fees),
judgments, fines, penalties, excise taxes and amounts paid in settlement or
incurred by such director or officer for or as a result of action taken or not
taken while such director or officer was acting in his capacity as the director
or executive officer of the Registrant or its affiliates.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 Form of Director Stock Option Agreement.
4.2 Form of Employee Stock Option Agreement.
4.3 Lone Star Steakhouse & Saloon, Inc. 2004 Stock Option Plan, previously
filed as Exhibit 99.1 to the Company's Form 8-K filed December 20, 2004.
5 Opinion of Olshan Grundman Frome Rosenzweig & Wolosky LLP.
23.1 Consent of Ernst & Young LLP, Independent Registered Public Accounting
Firm.
23.2 Consent of Olshan Grundman Frome Rosenzweig &Wolosky LLP (contained in
Exhibit 5).
24 Powers of Attorney (included on the signature page of the initial filing of
this Registration Statement).
ITEM 9. UNDERTAKINGS
A. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table
in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) 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 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 this
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, the
registrant has been advised that in the opinion of the Securities and
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Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 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 a 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 of 1933 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, 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 Wichita, State of Kansas on the 20th day of December,
2004.
LONE STAR STEAKHOUSE & SALOON, INC.
By: /s/ Jamie B. Coulter
---------------------------------
Name: Jamie B. Coulter
Title: Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Jamie B. Coulter and John D. White as his true
and lawful attorney-in-fact, each acting alone, with full power of substitution
and resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments, including post-effective amendments
to this registration statement, and any related registration statement filed
pursuant to Rule 462(b) of the Act and to file the same, with exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorneys-in-fact or
their substitutes, each acting along, may lawfully do or cause to be done by
virtue hereof.
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/ Jamie B. Coulter Chief Executive Officer December 20, 2004
------------------ (Principal Executive
Jamie B. Coulter Officer)
Executive Vice December 20, 2004
President, Chief Financial
/s/ John D. White Officer, Treasurer, and
------------------ Director (Principal
John D. White Accounting Officer)
/s/ William B. Greene, Jr. Chairman of the Board December 20, 2004
------------------ and Director
William B. Greene, Jr.
/s/ Anthony Bergamo Director December 20, 2004
------------------
Anthony Bergamo
/s/ Fred B. Chaney Director December 20, 2004
------------------
Fred B. Chaney
/s/ Thomas C. Lasorda Director December 20, 2004
------------------
Thomas C. Lasorda
/s/ Michael A. Ledeen Director December 20, 2004
------------------
Michael A. Ledeen
/s/ Clark R. Mandigo Director December 20, 2004
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Clark R. Mandigo
/s/ Mark Saltzgaber Director December 20, 2004
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Mark Saltzgaber