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As filed with the Securities and Exchange Commission on June 6, 1996.
Registration No. 33-________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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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)
400,000 CONSULTANT'S SHARES UNDERLYING WARRANTS TO BE
ISSUED PURSUANT TO CONSULTING AGREEMENT BY AND BETWEEN
RICK'S CABARET INTERNATIONAL, INC. AND
SUMMIT MARKETING & PUBLIC RELATIONS, INC.
(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
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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
- ---------- ---------- ------------ ----------- -----------
Common stock, 400,000 shares $4.50 $1,800,000 $621.00
par value $.01
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* Calculated pursuant to Rule 457(h) of the Securities Act of 1933, as
amended, solely for purposes of calculating the registration fee.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
PROSPECTUS
ITEM 1. PLAN INFORMATION.
(a) General Plan Information.
The 400,000 shares (the "400,000 Consultant's Shares") of common
stock, par value $.01 per share (the "Common Stock"), of Rick's Cabaret
International, Inc. (the "Company") being registered pursuant to the
Registration Statement on Form S-8 are shares to be issued to Summit Marketing
& Public Relations, Inc. (the "Consultant") upon the vesting and exercise of up
to 400,000 Warrants ("Warrants") pursuant to the terms of a consulting
agreement, dated as of May 1, 1996, as amended on May 30, 1996 (the Consulting
Agreement, as amended, is hereinafter referred to as the "Consulting
Agreement") by and between the Consultant and the Company. The registrant
whose securities are being offered is Rick's Cabaret International, Inc. The
400,000 Consultant's Shares will be issued subsequent to the effective date of
the Registration Statement on Form S-8 (the "Registration Statement") covering
the 400,000 Consultant's Shares of which this Prospectus forms a part and only
upon the vesting and exercise of the 400,000 Warrants issued to the Consultant
by the Company pursuant to the Consulting Agreement. A copy of the Consulting
Agreement is annexed as Exhibit 4.1 to the Registration Statement on Form S-8.
A copy of the Amendment to the Consulting Agreement is annexed as Exhibit 4.2
to the Registration Statement on Form S-8.
Under the terms of the Consulting Agreement, the Company is engaging
the Consultant, for a period of six (6) months commencing upon the execution of
the Consulting Agreement, to provide to the Company consulting services with
respect to financial and public relations and stockholder relations. The
Consulting Agreement will terminate on November 1, unless earlier terminated,
at the option of the Company, due to the short-term disability of the
principals of the Consultant.
The Consulting Agreement provides that as partial consideration for
the Consultant performing the consulting services described in the Consulting
Agreement, the Company shall issue to the Consultant 50,000 shares of its
Common Stock. Of the 50,000 shares of common stock, 16,667 shares were issued
to the Consultant on May 22, 1996, 16,667 shares will be issued on June 21,
1996 and the remaining 16,666 shares shall be issued by the Company to the
Consultant on July 21, 1996. These 50,000 shares are the subject of a Form S-8
Registration Statement filed by the Company with the Securities and Exchange
Commission on May 21, 1996.
The Consulting Agreement further provides that as additional
consideration for providing the consulting services described in the Consulting
Agreement, the Company will grant to the Consultant (i) 200,000 Warrants to
purchase 200,000 shares of Common Stock of the Company at $4.50 per share for
a term of six (6) months commencing on May 1, 1996, exercisable (a) 100,000
shares at any time during the six month period, and (b) an additional 100,000
shares if the Company's Common Stock closes at a bid price of $5.50 per share
for five consecutive days and (ii) 200,000 additional Warrants to purchase
200,000 shares of Common Stock of the Company at $4.50 per share for a twelve
(12) month period commencing on May 1, 1996, exercisable (a) 100,000 shares
only if the Company's shares of Common Stock close at a bid price of $6.50 per
share for five consecutive days and (b) an additional 100,000 shares only if
the Company's shares of Common Stock close at a bid price of $8.00 per share
for five consecutive days.
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Pursuant to the Consulting Agreement, the Company agreed to file with
the Securities and Exchange Commission a Registration Statement on Form S-8
covering the 50,000 shares of Common Stock and the 400,000 Consultant's Shares
underlying the Warrants and to pay all expenses incurred in connection with
filing of such registration statement. The Company filed on May 21, 1996 a
Registration Statement on Form S-8 covering the 50,000 shares of Common Stock
issued to the Consultant.
The Consulting Agreement also contains a non-competition provision
which provides that the Consultant will not, absent the prior written consent
of the Company, in any manner, directly or indirectly, own, manage, operate,
join, control or participate in the ownership, management, operation or control
of or be employed or connected in any manner with any company or firm which
competes, or would compete, with the Company.
The Consulting Agreement and the securities to be issued pursuant
thereto are not subject to any provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA").
The address and telephone number, including area code, to obtain
additional information regarding the information discussed herein is Rick's
Cabaret International, Inc., 3113 Bering Drive, Houston, Texas 77057,
Attention: Robert L. Watters; (713) 785-0444.
(b) Securities Offered.
The title of the Plan is the 400,000 Consultant's Shares Underlying
Warrants to be Issued Pursuant to the Consulting Agreement by and between the
Company and the Consultant. The total amount of securities being offered
pursuant to such Plan is 400,000 shares of Common Stock.
(c) Employees who may Participate in the Plan.
The Plan covers the 400,000 Consultant's Shares. Only the Consultant
will be issued such shares. The Consultant is receiving such shares based upon
the services outlined in the Consulting Agreement to be performed for the
Company by the Consultant.
(d) Purchase of Securities Pursuant to the Plan and Payment for
Securities Offered.
The Consultant will be receiving, for its services to be rendered, the
400,000 Consultant's Shares in accordance with the terms of the Consulting
Agreement as described above. The shares are being issued to the Consultant
for the consulting services the Consultant will provide to the Company. The
Board of Directors of the Company determined the value of the services to be
provided to the Company by the Consultant.
(e) Resale Restrictions.
Following the issuance to the Consultant of the 400,000 Consultant's
Shares as described herein, there will be no restrictions imposed under the
Consulting Agreement upon resale by the Consultant of the 400,000 Consultant's
Shares, provided such shares of Common Stock have been registered and are then
covered by an effective Registration Statement.
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(f) Tax Effects of Plan Participation.
Upon the issuance of the 400,000 Consultant's Shares, the Consultant
will recognize ordinary income (treated as compensation income) equal to the
fair market value of the Common Stock at the time of issuance. The Company
will be entitled to a tax deduction in the same amount and at the same time as
the Consultant realizes such income. Upon the sale of such shares, the
Consultant will recognize capital gain or loss measured by the difference
between the amount realized on the sale and the fair market value of the Common
Stock at the time of issuance. Such capital gain or loss will be short-term or
long-term, depending upon the length of time the shares were held by the
Consultant.
(g) Investment of Funds.
Not applicable.
(h) Withdrawal from the Plan; Assignment of Interest.
The 400,000 Consultant's Shares may be transferred, assigned, pledged,
or hypothecated by the Consultant.
(i) Forfeitures and Penalties.
Not applicable.
(j) Charges and Deductions, and Liens Therefor.
Not applicable.
ITEM 2. REGISTRANT INFORMATION.
The Company will promptly furnish, without charge, a copy of any
documents filed by the Company with the Securities and Exchange Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934, as amended, or the Company's then annual report to stockholders, upon
the written or oral request of the person receiving this document which
documents are incorporated by reference into this document. Such requests
should be addressed to Robert L. Watters, President, Rick's Cabaret
International, Inc., 3113 Bering Drive, Houston, Texas 77057 (telephone (713)
785-0444).
Dated: June 6, 1996.
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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, 1995; (b) all other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since September 30, 1995; and (c) the Company's
Registration Statement on Form SB-2, as amended (Registration Statement No.
33-88372, dated October 11, 1995).
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.
Not applicable.
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.
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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.
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
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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.
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
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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.
The Underwriting Agreement provides for indemnification of the Company
and the Underwriters and their respective officers, directors and controlling
persons within the meaning of the Act against certain liabilities.
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
-------------- ----------------------
4.1 Consulting Agreement by and between Rick's Cabaret International,
Inc. and Summit Marketing & Public Relations, Inc. ("Consulting
Agreement")
4.2 Amendment to Consulting Agreement dated May 30, 1996
5 Opinion of Axelrod, Smith & Kirshbaum
23(i) Consent of Jackson & Rhodes, P.C.
23(ii) Consent of Axelrod, Smith & Kirshbaum
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:
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(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, 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.
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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 Houston, State of Texas, on May 31, 1996.
RICK'S CABARET INTERNATIONAL, INC.
By: /s/ Robert L. Watters
----------------------------------
Robert L. Watters, Chairman of the
Board and Chief Executive 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, May 31, 1996
- ------------------------------- Chief Executive Officer, and
Robert L. Watters Director (Principal Executive
Officer)
/s/ Erich Norton White Director and Executive May 31, 1996
- ------------------------------- Vice President
Erich Norton White
/s/ Scott C. Mitchell Director May 31, 1996
- -------------------------------
Scott C. Mitchell
Director May ___, 1996
- -------------------------------
Martin Sage
/s/ Gary White Chief Financial Officer, May 31, 1996
- ---------------------------------- (Principal Financial Officer
Gary White and Principal Accounting Officer)
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INDEX TO EXHIBITS
4.1 Consulting Agreement by and between Rick's Cabaret International,
Inc. and Summit Marketing & Public Relations, Inc.
("Consulting Agreement")
4.2 Amendment to Consulting Agreement dated May 30, 1996
5 Opinion of Axelrod, Smith & Kirshbaum
23(i) Consent of Jackson & Rhodes, P.C.
23(ii) Consent of Axelrod, Smith & Kirshbaum
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