SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
POST-EFFECTIVE AMENDMENT NO. 1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Commission File Number 0-26958
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RICK'S CABARET INTERNATIONAL, INC.
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(Exact name of small Business Issuer as specified in its charter)
TEXAS 76-0458229
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(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
505 NORTH BELT, SUITE 630
HOUSTON, TEXAS 77060
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(Address of principal executive offices) (Zip Code)
(281) 820-1181
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Issuer's telephone number, including area code
1999 STOCK OPTION PLAN, AS AMENDED
(Full title of the plan)
CALCULATION OF REGISTRATION FEE
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Proposed
Proposed Maximum
Title Amount Maximum Aggregate Amount of
Securities to to be Offering Price Offering Registration
Be Registered (1) Registered (2) Per Share (1) Price (1) Fee (3)
Common Stock 500,000 (1) $ 2.50 $ 1,250,000 $ 158.38 (3)
$.001 par value
(1) This registration statement covers common stock issuable pursuant to an
Amendment to the 1999 Stock Option Plan, as approved by the shareholders on
August 27, 2004 (the "Agreement").
(2) This registration statement shall also cover an indeterminable number of
additional shares of common stock which may become issuable under the
Agreement by reason of any stock dividend, stock split, re-capitalization
or any other similar transaction effected without the consideration which
results in an increase in the number of registrant's outstanding shares of
common stock.
(3) This calculation is made solely for the purposes of determining the
registration fee pursuant to the provisions of Rule 457 under the
Securities Act of 1933, as amended and is calculated on the average of the
bid and asked price of the common stock as of September 17, 2004. The
Proposed Maximum Aggregate Offering Price is based on the Proposed Maximum
Offering Price Per Share times the total number of shares of Common Stock
to be registered.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Company with the Securities and Exchange
Commission (the "Commission") are hereby incorporated herein by reference
("Incorporated Documents"):
1. The Company's S-8 Registration Statement under File Number 333-32234 filed
on March 10, 2000;
2. The Company's Annual Report filed on Form 10-KSB for the fiscal year ended
September 30, 2003, as amended;
3. The Company's Quarterly Reports filed on Form 10-QSB for the quarters ended
December 31, 2003, March 31, 2004 and June 30, 2004, as amended;
4. The Company's Current Report filed on Form 8-K filed on September 17, 2004;
5. All other reports filed by the Company with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act of 1934, as amended, since the
end of the fiscal year ended September 30, 2003; and
6. The description of the Company's Common Stock which is contained in the
Company's Form SB-2 Registration Statement, filed with the Securities and
Exchange Commission pursuant to Section 12(g) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") originally on October 11,
1995, including any amendment or report filed for the purpose of updating
such description.
All reports and other documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities covered by this
Registration Statement have been sold or which deregisters all such securities
then remaining unsold shall be deemed to be incorporated by reference herein and
to be a part hereof from the date of the filing of such reports and documents.
Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed
Incorporated Document 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 securities to be offered are registered under Section 12 of the 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
us in the past on certain legal matters. Mr. Axelrod presently owns 46,700
shares of our common stock. Otherwise, his entire relationship with us 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 DIRECTORS AND OFFICERS.
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.
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
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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.
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.
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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.
Number Description
5.1 Legal Opinion of Axelrod, Smith and Kirshbaum PC. (with consent).
10.1 Amendment to 1999 Stock Option Plan (approved by the shareholders on
August 27, 2004).
23.1 Consent of Independent Registered Public Accounting Firm.
ITEM 9. UNDERTAKINGS.
(1) The Company hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration:
(1) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(2) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; and
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(3) 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) (1) and (2) 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 Company 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 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.
(c) To remove from registration by means of post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(2) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or 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 the time shall be deemed to be the
initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by the director, officer or controlling person of the Company 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 Company will, unless in the opinion of the counsel the
matter has been settled by controlling precedent, submit to the 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, on the 20th day of September 2004.
RICK'S CABARET INTERNATIONAL, INC.
By /s/ Eric Langan
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Eric Langan
CHAIRMAN, PRESIDENT, CHIEF EXECUTIVE OFFICER
AND ACTING CHIEF FINANCIAL OFFICER
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Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
date indicated.
Signature Title Date
By /s/ Eric Langan Chairman, Director, President, September 20, 2004
------------------------- Chief Executive Officer and
Eric Langan Acting Chief Financial Officer
By /s/ Travis Reese Director and Vice President September 20, 2004
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Travis Reese
By /s/ Robert Watters Director September 21, 2004
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Robert Watters
By /s/ Alan Bergstrom Director September 20, 2004
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Alan Bergstrom
By /s/ Steven L. Jenkins Director September 21, 2004
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Steven L. Jenkins
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