forms3.htm
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
Commission
File Number _____________
RICK’S
CABARET INTERNATIONAL, INC.
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TEXAS
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76-0458229
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(State
or other jurisdiction of
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(IRS
Employer Identification No.)
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incorporation
or organization)
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5810
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(Primary
Standard Industrial Classification
Code)
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10959
Cutten Road
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Houston,
Texas
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77066
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(Address
of principal executive offices)
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(Zip
Code)
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(281)
397-6730
Issuer’s
telephone number, including area code
ERIC
LANGAN
PRESIDENT
AND CHIEF EXECUTIVE OFFICER
RICK’S
CABARET INTERNATIONAL, INC.
10959
CUTTEN ROAD
HOUSTON,
TEXAS 77066
Copies
to:
ROBERT D.
AXELROD, ESQ.
AXELROD,
SMITH & KIRSHBAUM, P.C.
5300
MEMORIAL DRIVE, SUITE 700
HOUSTON,
TEXAS 77007
(713)
861-1996
Approximate
Date of Commencement of Proposed Sale to the Public: From time to
time after the effective date of this registration statement.
If the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. o
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, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. o
If this
Form is filed to register 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. o
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. o
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. o
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 413(b) under the Securities Act, check the
following box. o
CALCULATION OF REGISTRATION
FEE
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Title
of Each Class of Securities to be Registered
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Amount to be registered
(1)
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Proposed
maximum offering price per Share
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Proposed
maximum aggregate offering price
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Amount of Registration Fee
(2)
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Common
Stock, $.01 par value
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1,165,000 |
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$ |
14.00 |
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$ |
16,310,000 |
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$ |
640.98 |
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TOTAL
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1,165,000 |
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N/A |
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$ |
16,310,000 |
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$ |
640.98 |
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(1)
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In
accordance with Rule 416 under the Securities Act of 1933, as amended (the
“Securities Act”), this registration statement also covers any additional
shares of common stock which may become issuable by reason of any stock
dividends, stock splits, or similar transactions which results in an
increase in the number of registrant’s outstanding shares of common
stock.
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(2)
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This
calculation is made solely for the purposes of determining the
registration fee pursuant to the provisions of Rule 457 under the
Securities Act.
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DELAYING
AMENDMENT UNDER RULE 473(A): 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 become effective
in accordance with section 8(a) of the Securities Act of 1933 or until
the registration statement shall become effective on such date as the
Commission acting pursuant to section 8(a), may determine.
THE
INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE SELLING
STOCKHOLDERS MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS
IS NOT AN OFFER TO SELL THESE SECURITIES AND THE SELLING STOCKHOLDERS ARE NOT
SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE
IS NOT PERMITTED.
PROSPECTUS
SUBJECT
TO COMPLETION, DATED FEBRUARY 14, 2008
RICK’S
CABARET INTERNATIONAL, INC.
1,165,000
SHARES OF COMMON STOCK
This
prospectus relates to the offering for resale of up to 1,165,000 shares of our
common stock, $0.01 par value (“Common Stock”) currently held by certain selling
stockholders. For a list of the selling stockholders, please see "Selling
Security Holders" section herein. We are not selling any shares of
our Common Stock in this offering and therefore will not receive any proceeds
from the sale thereof. We will bear all expenses, other than selling
commissions and fees of the selling stockholders, in connection with the
registration and sale of the shares being offered by this
prospectus.
These
shares may be sold by the selling stockholders from time to time in the
over-the-counter market or other national securities exchange or automated
interdealer quotation system on which our Common Stock is then listed or quoted,
through negotiated transactions or otherwise at market prices prevailing at the
time of sale or at negotiated prices.
Our
common stock is quoted on the NASDAQ Global Market under the symbol
"RICK." On February 4, 2008, the last reported sales price of our
Common Stock was $24.96 per share.
INVESTING
IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. PLEASE REFER TO
THE "RISK FACTORS" BEGINNING ON PAGE 3.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS
APPROVED OR DISAPPROVED OF THESE SECURITIES, OR DETERMINED IF THIS PROSPECTUS IS
TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
THE DATE
OF THIS PROSPECTUS IS _____________ ___, 2008.
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The
following summary highlights selected information contained in this prospectus.
This summary does not contain all of the information you should consider before
investing in the securities. Before making an investment decision, you should
read the entire prospectus carefully, including the risk factors section, the
financial statements and the notes to the financial statements. You should also
review the other available information referred to in the section entitled “Where you can find
more information” on page 13 in this prospectus and any amendment or supplement
hereto. Unless otherwise indicated, the terms the “Company,” “we,”
“us,” and “our” refer and relate to Rick’s Cabaret International, Inc. and its
consolidated subsidiaries.
The
Company
We
presently conduct our business in two different areas of operation:
Our name
is Rick's Cabaret International, Inc. We currently own and/or operate a total of
fifteen adult nightclubs that offer live adult entertainment, restaurant and bar
operations. Six of our clubs operate under the name "Rick's Cabaret"; three
operate under the name “Club Onyx”, upscale venues that welcome all customers
but cater especially to urban professionals, businessmen and professional
athletes; four of the clubs operate under the name "XTC", one club that operates
as “Encounters”, and one club that operates as “Tootsie’s”. Our nightclubs are
in Houston, Austin, San Antonio, and Fort Worth, Texas; Charlotte, North
Carolina; Minneapolis, Minnesota; New York, New York; and Miami Gardens,
Florida. We also own and operate premiere adult entertainment Internet
websites.
Our
nightclub revenues are derived from the sale of liquor, beer, wine, food,
merchandise, cover charges, membership fees, independent contractors' fees,
commissions from vending and ATM machines, valet parking, and other products and
services. Our internet revenues are derived from subscriptions to
adult content internet websites, traffic/referral revenues, and commissions
earned on the sale of products and services through Internet auction sites, and
other activities.
Our
fiscal year end is September 30. Our website address is
www.Ricks.com. We make available free of charge our Annual Report on Form
10-KSB, Quarterly Reports on Form 10-QSB, Current Reports on Form 8-K, and all
amendments to those reports as soon as reasonably practicable after such
material is electronically filed with the SEC under Securities Exchange Act of
1934, as amended. Information contained in the website shall not be construed as
part of this Registration Statement.
References
to “us” or “the Company” include our 100%-owned, 85%-owned and 51%-owned
consolidated subsidiaries.
The
Offering
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Outstanding
Common Stock
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7,558,676
shares (as of February 4, 2008).
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Common
Stock Offered
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Up
to 1,165,000 shares of Common Stock held by certain selling
stockholders.
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Offering
Price
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Determined
at the time of sale by the selling stockholders.
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Proceeds
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We
are not selling any shares of our Common Stock in this offering and
therefore will not receive any proceeds from the sale
thereof. The selling stockholders will pay any underwriting
discounts and commissions and expenses incurred by the selling
stockholders for brokerage, accounting, tax or legal services or any other
expenses incurred by the selling stockholders in disposing of the shares.
We will bear all other costs, fees and expenses incurred in effecting the
registration of the shares covered by this prospectus, including, without
limitation, all registration and filing fees, Nasdaq Global Market listing
fees, blue sky registration and filing fees, and fees and expenses of our
counsel and our accountants.
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Risk
Factors
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The
securities offered hereby involve a high degree of risk. See “Risk
Factors” herein.
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FORWARD-LOOKING
STATEMENTS
We are
including the following cautionary statement in this Form S-3 to make applicable
and take advantage of the safe harbor provision of the Private Securities
Litigation Reform Act of 1995 for any forward-looking statements made by us or
on behalf of us. Forward-looking statements include statements
concerning plans, objectives, goals, strategies, future events or performance
and underlying assumptions and other statements, which are other than statements
of historical facts. Certain statements in this Form S-3 are
forward-looking statements. These statements are subject to risks and
uncertainties and are based on the beliefs and assumptions of management and
information currently available to management. The use of words such as
"believes," "expects," "anticipates," "intends," "plans," "estimates," "should,"
"likely" or similar expressions, indicates a forward-looking
statement. Such statements are subject to risks and uncertainties
that could cause actual results to differ materially from those projected. Such
risks and uncertainties are set forth below. Our expectations,
beliefs and projections are expressed in good faith and we believe that they
have a reasonable basis, including without limitation, our examination of
historical operating trends, data contained in our records and other data
available from third parties. There can be no assurance that our
expectations, beliefs or projections will result, be achieved, or be
accomplished. In addition to other factors and matters discussed
elsewhere in this Form S-3, the following are important factors that in our view
could cause material adverse affects on our financial condition and results of
operations: the risks and uncertainties related to our future operational and
financial results, the risks and uncertainties relating to our Internet
operations, competitive factors, the timing of the openings of other clubs, the
availability of acceptable financing to fund corporate expansion efforts, our
dependence on key personnel, the ability to manage operations and the future
operational strength of management, and the laws governing the operation of
adult entertainment businesses.
For a
discussion of some additional factors that may cause actual results to differ
materially from those suggested by the forward-looking statements, please read
carefully the information under "Risk Factors" beginning on page 3. The
identification in this document of factors that may affect future performance
and the accuracy of forward-looking statements is meant to be illustrative and
by no means exhaustive. All forward-looking statements should be evaluated with
the understanding of their inherent uncertainty.
We
operate in a very competitive and rapidly changing environment. New
risks emerge from time to time and it is not possible for our management to
predict all risks, nor can we assess the impact of all risks on our business or
the extent to which any risk, or combination of risks, may cause actual results
to differ from those contained in any forward-looking statements. All
forward-looking statements included in this prospectus are based on information
available to us on the date of the prospectus. Except to the extent
required by applicable laws or rules, we undertake no obligation to publicly
update or revise any forward-looking statement, whether as a result of new
information, future events or otherwise. All subsequent written and oral
forward-looking statements attributable to us or persons acting on our behalf
are expressly qualified in their entirety by the cautionary statements contained
throughout this prospectus.
You may
rely only on the information contained in this prospectus. We have not
authorized anyone to provide information different from that contained in this
prospectus. Neither the delivery of this prospectus nor the sale of Common Stock
means that information contained in this prospectus is correct after the date of
this prospectus. This prospectus is not an offer to sell or solicitation of an
offer to buy these securities in any circumstances under which the offer or
solicitation is unlawful.
An
investment in our Common Stock involves a high degree of risk. You should
carefully consider the risks described below before deciding to purchase shares
of our Common Stock. If any of the events, contingencies, circumstances or
conditions described in the risks below actually occurs, our business, financial
condition or results of operations could be seriously harmed. The trading price
of our Common Stock could, in turn, decline and you could lose all or part of
your investment.
Our Business Operations are
Subject to Regulatory Uncertainties Which May Affect Our Ability to Continue
Operations of Existing Nightclubs, Acquire Additional Nightclubs or Be
Profitable
Adult
entertainment nightclubs are subject to local, state and federal regulations.
Our business is regulated by local zoning, local and state liquor licensing,
local ordinances and state and federal time place and manner restrictions. The
adult entertainment provided by our nightclubs has elements of speech and
expression and, therefore, enjoys some protection under the First Amendment to
the United States Constitution. However, the protection is limited to the
expression, and not the conduct of an entertainer. While our nightclubs are
generally well established in their respective markets, there can be no
assurance that local, state and/or federal licensing and other regulations will
permit our nightclubs to remain in operation or profitable in the
future.
As
discussed in the section entitled “Legal Proceedings” herein, we are subject to
litigation regarding our Sexually Oriented Business licenses in Houston, Texas.
The Trial Court rendered its judgment in favor of the City of Houston on January
31, 2007. The Trial Court found that the City of Houston met its
burden that there were sufficient alternate sites available to relocate all of
the existing businesses in 1997. The Trial Court found the 1997
ordinance constitutional and enforceable. Post-trial motions were
heard and the relief sought, a stay against enforcement, was denied by the Trial
Court. An appeal to the Fifth Circuit Court of Appeals was timely
filed. The Fifth Circuit granted a stay pending
appeal. Oral argument was held before the Fifth Circuit Court of
Appeals on August 7, 2007. The Fifth Circuit Court of Appeals ruled
in favor of the City of Houston in September, 2007. Pleadings have
been filed seeking a stay against enforcement of the provisions of the ordinance
with the United States Supreme Court in conjunction with the request that the
United States Supreme Court hear an appeal of the Fifth Circuit Court of Appeals
ruling. Neither relief nor any indication of the Supreme Court’s
position on the appeal has been received to date. The effect of any
potential adverse ruling on our operations in Houston is unknown. An adverse
ruling would affect all sexually oriented businesses in Houston. In that event,
we would change our method of operations to require our entertainers to wear
latex and bikini bottoms. While management believes this potential change will
not have a meaningful effect on our operations, as the effect would be to all
similarly situated businesses, the effect is unknown. Approximately 14.6% of our
club operation’s revenues for the three months ended December 31, 2007 were in
Houston, Texas. It is possible an adverse ruling may allow for
additional competition in the Houston market.
Subsequent
to the end of the fiscal quarter, beginning January 1, 2008, our Texas clubs
became subject to a new state law requiring us to collect a $5.00 surcharge for
every club visitor. A lawsuit has been filed by the Texas
Entertainment Association, an organization of which we are a member, alleging
the fee amounts to an unconstitutional tax. At this time, it is
premature for us to know what effect, if any, the fee will have on our patron
business or profitability.
We May Need Additional
Financing or Our Business Expansion Plans May Be Significantly
Limited
If cash
generated from our operations is insufficient to satisfy our working capital and
capital expenditure requirements, we will need to raise additional funds through
the public or private sale of our equity or debt securities. The timing and
amount of our capital requirements will depend on a number of factors, including
cash flow and cash requirements for nightclub acquisitions. If additional funds
are raised through the issuance of equity or convertible debt securities, the
percentage ownership of our then-existing stockholders will be reduced. We
cannot assure you that additional financing will be available on terms favorable
to us, if at all. Any future equity financing, if available, may result in
dilution to existing stockholders, and debt financing, if available, may include
restrictive covenants. Any failure by us to procure timely additional financing
will have material adverse consequences on our business operations
There is Substantial
Competition in the Nightclub Entertainment Industry, Which May Affect Our
Ability to Operate Profitably or Acquire Additional Clubs
Our
nightclubs face competition. Some of these competitors may have greater
financial and management resources than we do. Additionally, the industry is
subject to unpredictable competitive trends and competition for general
entertainment dollars. There can be no assurance that we will be able to remain
profitable in this competitive industry.
Risk of Adult Nightclubs
Operations
Historically,
the adult entertainment, restaurant and bar industry has been an extremely
volatile industry. The industry tends to be extremely sensitive to the general
local economy, in that when economic conditions are prosperous, entertainment
industry revenues increase, and when economic conditions are unfavorable,
entertainment industry revenues decline. Coupled with this economic sensitivity
are the trendy personal preferences of the customers who frequent adult
cabarets. We continuously monitor trends in our customers' tastes and
entertainment preferences so that, if necessary, we can make appropriate changes
which will allow us to remain one of the premiere adult cabarets. However, any
significant decline in general corporate conditions or uncertainties regarding
future economic prospects that affect consumer spending could have a material
adverse effect on our business. In addition, we have historically catered to a
clientele base from the upper end of the market. Accordingly, further reductions
in the amounts of entertainment expenses allowed as deductions from income under
the Internal Revenue Code of 1954, as amended, could adversely affect sales to
customers dependent upon corporate expense accounts.
Permits Relating to the
Sale of
Alcohol
We derive
a significant portion of our revenues from the sale of alcoholic beverages.
States in which we operate may have laws which may limit the availability of a
permit to sell alcoholic beverages or which may provide for suspension or
revocation of a permit to sell alcoholic beverages in certain circumstances. The
temporary or permanent suspension or revocations of any such permits would have
a material adverse effect on the revenues, financial condition and results of
operations of the Company. In all states where we operate, management
believes we are in compliance with applicable city, county, state or other local
laws governing the sale of alcohol.
We Must Continue to Meet
NASDAQ Global Market Continued Listing Requirements or We Risk
Delisting
Our
securities are currently listed for trading on the NASDAQ Global Market. We must
continue to satisfy NASDAQ’s continued listing requirements or risk delisting
which would have an adverse effect on our business. If our securities are ever
de-listed from NASDAQ, it may trade on the over-the-counter market, which may be
a less liquid market. In such case, our stockholders’ ability to trade or obtain
quotations of the market value of shares of our common stock would be severely
limited because of lower trading volumes and transaction delays. These factors
could contribute to lower prices and larger spreads in the bid and ask prices
for our securities. There is no assurance that we will be able to maintain
compliance with the NASDAQ continued listing requirements.
In The Future, We Will Incur
Significant Increased Costs as a Result of Operating as a Public Company, and
Our Management Will Be Required to Devote Substantial Time to New Compliance
Initiatives
In the
future, we will incur significant legal, accounting and other expenses. The
Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), as well as new rules
subsequently implemented by the SEC, have imposed various new requirements on
public companies, including requiring changes in corporate governance practices.
Our management and other personnel will need to devote a substantial amount of
time to these new compliance initiatives. Moreover, these rules and regulations
will increase our legal and financial compliance costs and will make some
activities more time-consuming and costly. For example, we expect these new
rules and regulations to make it more difficult and more expensive for us to
obtain director and officer liability insurance, and we may be required to incur
substantial costs to maintain the same or similar coverage.
In
addition, the Sarbanes-Oxley Act requires, among other things, that we maintain
effective internal controls for financial reporting and disclosure controls and
procedures. In particular, commencing in fiscal 2008, we must perform system and
process evaluation and testing on the effectiveness of our internal controls
over financial reporting, as required by Section 404 of the Sarbanes-Oxley
Act. Subsequently in fiscal 2009, our independent registered public accounting
firm will report on the effectiveness of our internal controls over financial
reporting, as required by Section 404 of the Sarbanes-Oxley Act. Our
testing, or the subsequent testing by our independent registered public
accounting firm, may reveal deficiencies in our internal controls over financial
reporting that are deemed to be material weaknesses. Our compliance with
Section 404 will require that we incur substantial accounting expense and
expend significant management efforts. We currently do not have an internal
audit group, and we will need to hire additional accounting and financial staff
with appropriate public company experience and technical accounting knowledge.
Moreover, if we are not able to comply with the requirements of Section 404
in a timely manner, or if we or our independent registered public accounting
firm identifies deficiencies in our internal controls over financial reporting
that are deemed to be material weaknesses, the market price of our stock could
decline, and we could be subject to sanctions or investigations by the SEC or
other regulatory authorities, which would require additional financial and
management resources.
Uninsured
Risks
We
maintain insurance in amounts we consider adequate for personal injury and
property damage to which the business of the Company may be subject. However,
there can be no assurance that uninsured liabilities in excess of the coverage
provided by insurance, which liabilities may be imposed pursuant to the Texas
"Dram Shop" statute or similar "Dram Shop" statutes or common law theories of
liability in other states where we operate or expand. The Texas "Dram Shop"
statute provides a person injured by an intoxicated person the right to recover
damages from an establishment that wrongfully served alcoholic beverages to such
person if it was apparent to the server that the individual being sold, served
or provided with an alcoholic beverage was obviously intoxicated to the extent
that he presented a clear danger to himself and others. An employer is not
liable for the actions of its employee who over-serves if (i) the employer
requires its employees to attend a seller training program approved by the TABC;
(ii) the employee has actually attended such a training program; and
(iii) the employer has not directly or indirectly encouraged the employee
to violate the law. It is our policy to require that all servers of alcohol
working at our clubs be certified as servers under a training program approved
by the TABC, which certification gives statutory immunity to the sellers of
alcohol from damage caused to third parties by those who have consumed alcoholic
beverages at such establishment pursuant to the Texas Alcoholic Beverage Code.
There can be no assurance, however, that uninsured liabilities may not arise
which could have a material adverse effect on the Company.
Limitations on Protection of
Service Marks
Our
rights to the tradenames "Rick's" and "Rick's Cabaret" are established under the
common law based upon our substantial and continuous use of these trademarks in
interstate commerce since at least as early as 1987. "RICK'S AND STARS DESIGN"
and "RICK'S CABARET" logos are registered through service mark registrations
issued by the United States Patent and Trademark Office ("PTO"). There can be no
assurance that these steps taken by the Company to protect its Service Marks
will be adequate to deter misappropriation of its protected intellectual
property rights. Litigation may be necessary in the future to protect our rights
from infringement, which may be costly and time consuming. The loss of the
intellectual property rights owned or claimed by us could have a material
adverse affect on our business.
Anti-takeover Effects of
Issuance of Preferred Stock
The Board
of Directors has the authority to issue up to 1,000,000 shares of Preferred
Stock in one or more series, to fix the number of shares constituting any such
series, and to fix the rights and preferences of the shares constituting any
series, without any further vote or action by the stockholders. The issuance of
Preferred Stock by the Board of Directors could adversely affect the rights of
the holders of Common Stock. For example, such issuance could result in a class
of securities outstanding that would have preferences with respect to voting
rights and dividends and in liquidation over the Common Stock, and could (upon
conversion or otherwise) enjoy all of the rights appurtenant to Common Stock.
The Board's authority to issue Preferred Stock could discourage potential
takeover attempts and could delay or prevent a change in control of the Company
through merger, tender offer, proxy contest or otherwise by making such attempts
more difficult to achieve or more costly. There are no issued and outstanding
shares of Preferred Stock; there are no agreements or understandings for the
issuance of Preferred Stock, and the Board of Directors has no present intention
to issue Preferred Stock.
We Do Not Anticipate Paying
Dividends on Common Shares in the Foreseeable Future
Since our
inception we have not paid any dividends on our common stock and we do not
anticipate paying any dividends in the foreseeable future. We expect that future
earnings, if any, will be used for working capital and to finance
growth.
Future Sales of Our Common
Stock May Depress Our Stock Price
The
market price of our common stock could decline as a result of sales of
substantial amounts of our common stock in the public market, or as a result of
the perception that these sales could occur. In addition, these factors could
make it more difficult for us to raise funds through future offerings of common
stock.
Our Stock Price Has Been
Volatile and May Fluctuate in the Future
The
trading price of our securities may fluctuate significantly. This price may be
influenced by many factors, including:
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our performance and
prospects;
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the depth and liquidity of the
market for our securities;
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sales of Common Stock by selling
stockholders;
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investor perception of us and the
industry in which we
operate;
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changes in earnings estimates or
buy/sell recommendations by
analysts;
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general financial and other
market conditions; and
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domestic economic
conditions.
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Public
stock markets have experienced, and may experience, extreme price and trading
volume volatility. These broad market fluctuations may adversely affect the
market price of our securities.
Our Management Controls a
Significant Percentage of Our Current Outstanding Common Stock and Their
Interests May Conflict With Those of Our Stockholders
As of
February 4, 2008, our Directors and executive officers and their respective
affiliates collectively and beneficially owned approximately 17.3% of our
outstanding common stock, including all warrants exercisable within 60 days.
This concentration of voting control gives our Directors and
executive officers and their respective affiliates substantial influence over
any matters which require a shareholder vote, including, without limitation, the
election of Directors, even if their interests may conflict with those of other
stockholders. It could also have the effect of delaying or preventing a change
in control of or otherwise discouraging a potential acquirer from attempting to
obtain control of us. This could have a material adverse effect on the market
price of our common stock or prevent our stockholders from realizing a premium
over the then prevailing market prices for their shares of common
stock.
We are Dependent on Key
Personnel
Our
future success is dependent, in a large part, on retaining the services of Mr.
Eric Langan, our President and Chief Executive Officer. Mr. Langan
possesses a unique and comprehensive knowledge of our industry. While Mr. Langan
has no present plans to leave or retire in the near future, his loss could have
a negative effect on our operating, marketing and financial performance if we
are unable to find an adequate replacement with similar knowledge and experience
within our industry. We maintain key-man life insurance with respect to Mr.
Langan. Although Mr. Langan is under an employment agreement, there can be no
assurance that Mr. Langan will continue to be employed by us. The loss of
Mr. Langan could have a negative effect on our operating, marketing, and
financing performance.
Cumulative Voting is Not
Available To Stockholders
Cumulative
voting in the election of Directors is expressly denied in our Articles of
Incorporation. Accordingly, the holder or holders of a majority of the
outstanding shares of our common stock may elect all of our Directors.
Management’s large percentage ownership of our outstanding common stock helps
enable them to maintain their positions as such and thus control of our business
and affairs.
Our Directors and Officers
Have Limited Liability and Have Rights To Indemnification
Our
Articles of Incorporation and Bylaws provide, as permitted by governing Texas
law, that our Directors and officers shall not be personally liable to us or any
of our stockholders for monetary damages for breach of fiduciary duty as a
Director or officer, with certain exceptions. The Articles further provide that
we will indemnify our Directors and officers against expenses and liabilities
they incur to defend, settle, or satisfy any civil litigation or criminal action
brought against them on account of their being or having been its Directors or
officers unless, in such action, they are adjudged to have acted with gross
negligence or willful misconduct.
The
inclusion of these provisions in the Articles may have the effect of reducing
the likelihood of derivative litigation against Directors and officers, and may
discourage or deter stockholders or management from bringing a lawsuit against
Directors and officers for breach of their duty of care, even though such an
action, if successful, might otherwise have benefited us and our
stockholders.
The
Articles provide for the indemnification of our officers and Directors, and the
advancement to them of expenses in connection with any proceedings and claims,
to the fullest extent permitted by Texas law. The Articles include related
provisions meant to facilitate the indemnitee's receipt of such benefits. These
provisions cover, among other things: (i) specification of the method of
determining entitlement to indemnification and the selection of independent
counsel that will in some cases make such determination, (ii) specification of
certain time periods by which certain payments or determinations must be made
and actions must be taken, and (iii) the establishment of certain presumptions
in favor of an indemnitee.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to our directors, officers and controlling persons pursuant to the
foregoing provisions, we have been advised that in the opinion of the Securities
and Exchange Commission, such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
We are
not selling any shares of our Common Stock in this offering and therefore will
not receive any proceeds from the sale thereof. The selling
stockholders will pay any underwriting discounts and commissions and expenses
incurred by the selling stockholders for brokerage, accounting, tax or legal
services or any other expenses incurred by the selling stockholders in disposing
of the shares. We will bear all other costs, fees and expenses
incurred in effecting the registration of the shares covered by this prospectus,
including, without limitation, all registration and filing fees, Nasdaq Global
Market listing fees, blue sky registration and filing fees, and fees and
expenses of our counsel and our accountants.
The
following is a list of the selling stockholders who currently own the 1,165,000
shares of Common Stock covered by this prospectus. Beneficial
ownership is determined in accordance with Rule 13d-3 of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) promulgated by the SEC, and
generally includes voting or investment power with respect to
securities. The percent of beneficial ownership for the selling
stockholders is based on 1,165,000 shares of common stock outstanding as of
January 18, 2008. Shares of common stock subject to warrants, options and other
convertible securities that are currently exercisable or exercisable within 60
days of January 18, 2008, are considered outstanding and beneficially owned by a
selling stockholders who holds those warrants, options or other convertible
securities for the purpose of computing the percentage ownership of that selling
stockholders but are not treated as outstanding for the purpose of computing the
percentage ownership of any other stockholder.
The
shares of common stock being offered under this prospectus may be offered for
sale from time to time during the period the registration statement of which
this prospectus is a part remains effective, by or for the account of the
selling stockholders. After the date of effectiveness of the
registration statement of which this prospectus is a part, the selling
stockholder may have sold or transferred, in transactions covered by this
prospectus or in transactions exempt from the registration requirements of the
Securities Act, some or all of its common stock. Information about the selling
stockholders may change over time. Any changed information will be
set forth in an amendment to the registration statement or supplement to this
prospectus, to the extent required by law.
The
following table sets forth information concerning the selling stockholders,
including the number of shares currently held and the number of shares offered
by each selling security holder, to our knowledge as of January 18,
2008. At the time of the acquisition there were no agreements,
understandings or arrangements with any other persons, either directly or
indirectly, to distribute the securities.
|
|
|
Before the Offering
|
|
After the Offering
|
|
|
Name
of Selling Stockholder
|
Position,
Office
or
Other
Material
Relationship
|
Total
Number
of
Shares
of
common
stock
Beneficially
Owned
Prior to the Offering(1)
|
Number
of
Shares
to
be
Offered
for
the
Account
of
the
Selling
Stockholder (2)
|
Number
of Shares
to
be
Owned
after
this
Offering(3)
|
Percentage
to
be
Beneficially
Owned
after
this
Offering
(3) (4)
|
| Common
Stock |
|
|
|
|
|
|
Clarus
Capital LLC 5
|
None
|
7,000
|
76,631
|
7,000
|
<1%
|
|
Guerrilla
Partners, LP 6
|
None
|
119,265
|
75,000
|
119,265
|
1.58%
|
|
Iroquois
Master Fund Ltd. 7
|
None
|
-0-
|
51,088
|
-0-
|
-0-
|
|
JLF
Partners I, LP 8
|
None
|
210,458
|
168,043
|
210,458
|
2.79%
|
|
JLF
Partners II, LP 8
|
None
|
15,847
|
12,701
|
15,847
|
<1%
|
|
JLF
Offshore Fund, Ltd. 8
|
None
|
267,174
|
212,113
|
267,174
|
3.55%
|
|
JLF
Concentrated Partners, LP 8
|
None
|
-0-
|
107,143
|
-0-
|
-0-
|
|
Kensington
Partners LP 9
|
None
|
10,590
|
69,500
|
10,590
|
<1%
|
|
Peter
B. Orthwein Family Trust 9
|
None
|
-0-
|
8,665
|
-0-
|
-0-
|
|
Lois
B. Totten
|
None
|
-0-
|
1,690
|
-0-
|
-0-
|
|
Charles
Nirenberg
|
None
|
-0-
|
5,038
|
-0-
|
-0-
|
|
Bald
Eagle Fund Ltd. 9
|
None
|
4,060
|
3,175
|
4,060
|
<1%
|
|
Richard
J. & Virginia C. Keim
|
None
|
-0-
|
4,325
|
-0-
|
-0-
|
|
Midsummer
Investment, Ltd. 10
|
None
|
-0-
|
54,919
|
-0-
|
-0-
|
|
Outpoint
Offshore Fund, Ltd. 11
|
None
|
10,734
|
30,653
|
10,734
|
<1%
|
|
PGE
Partner Fund LP 12
|
None
|
2,030
|
9,962
|
2,030
|
<1%
|
|
PGE
Partner Fund II LP 12
|
None
|
1,693
|
5,364
|
1,693
|
<1%
|
|
Punch
MicroCap Partners, LLC 13
|
None
|
43,869
|
6,131
|
43,869
|
<1%
|
|
Slater
Equity Partners LP 14
|
None
|
39,400
|
67,531
|
39,400
|
<1%
|
|
Slater
Equity Partners Offshore Fund Ltd. 14
|
None
|
6,100
|
9,100
|
6,100
|
<1%
|
|
Stony
Point Fund, LP 15
|
None
|
5,000
|
20,000
|
5,000
|
<1%
|
|
Toro
Holdings 16
|
None
|
125,000
|
75,000
|
125,000
|
1.66%
|
|
Trellus
Small Cap Opportunity Fund, LP 17
|
None
|
-0-
|
21,416
|
-0-
|
-0-
|
|
Trellus
Small Cap Opportunity Offshore Fund Limited 17
|
None
|
-0-
|
14,276
|
-0-
|
-0-
|
|
Trellus
Partners, LP 17
|
None
|
-0-
|
25,733
|
-0-
|
-0-
|
|
Trellus
Partners II, LP 17
|
None
|
-0-
|
1,349
|
-0-
|
-0-
|
|
Trellus
Offshore Fund Limited 17
|
None
|
-0-
|
28,454
|
-0-
|
-0-
|
|
|
|
|
|
|
|
|
|
|
TOTAL
|
1,165,000
|
|
|
|
(1)
|
Includes
shares of common stock for which the selling security holder has the right
to acquire beneficial ownership within 60
days.
|
|
(2)
|
This
table assumes that each selling security holder will sell all shares
offered for sale by it under this registration
statement. Security holders are not required to sell their
shares.
|
|
(3)
|
Assumes
that all shares of Common Stock registered for resale by this prospectus
have been sold.
|
|
(4)
|
Based
on 7,556,850 shares of Common stock issued and outstanding as of January
18, 2008.
|
|
(5)
|
Ephraim
Fields is the natural person with investment decision and voting power for
this entity.
|
|
(6)
|
Peter
Siris is the natural person with investment decision and voting power for
this entity.
|
|
(7)
|
Joshua
Silverman is the natural person with investment decision and voting power
for this entity. Mr. Silverman disclaims beneficial ownership
of these shares.
|
|
(8)
|
Jeffrey
Feinberg is the natural person with investment decision and voting power
for this entity.
|
|
(9)
|
Richard
Keim is the natural person with investment decision and voting power for
this entity.
|
|
(10)
|
Scott
Kaufman, Joshua Thomas and Michel Amsalem, managers of Midsummer Capital,
LLC are the natural persons with investment decision and voting power for
this entity.
|
|
(11)
|
Jordan
Grayson is the natural person with investment decision and voting power
for this entity.
|
|
(12)
|
Stephen
Massocca and John Menzies are the natural persons with investment decision
and voting power for this entity.
|
|
(13)
|
Howard
Punch is the natural person with investment decision and voting power for
this entity.
|
|
(14)
|
Steven
Martin is the natural person with investment decision and voting power for
this entity.
|
|
(15)
|
Peter
Marin is the natural person with investment decision and voting power for
this entity.
|
|
(16)
|
Paul
J. Pollack is the natural person with investment decision and voting power
for this entity. Mr. Pollack is the President of Montgomery
Street Research, an entity with which we currently have a Consulting
Agreement.
|
|
(17)
|
Adam
Usdan is the natural person with investment decision and voting authority
for this entity.
|
We have
not been advised by the selling stockholders as to any plan of
distribution. Shares owned by the selling stockholders, or by their
partners, pledgees, donees (including charitable organizations), transferees or
other successors in interest, may from time to time be offered for sale either
directly by such individual, or through underwriters, dealers or agents or on
any exchange on which the shares may from time to time be traded, in the
over-the-counter market, or in independently negotiated transactions or
otherwise. The methods by which the shares may be sold
include:
|
|
·
|
a
block trade (which may involve crosses) in which the broker or dealer so
engaged will attempt to sell the securities as agent but may position and
resell a portion of the block as principal to facilitate the
transaction;
|
|
|
·
|
purchases
by a broker or dealer as principal and resale by such broker or dealer for
its own account pursuant to this
prospectus;
|
|
|
·
|
exchange
distributions and/or secondary
distributions;
|
|
|
·
|
sales
in the over-the-counter market;
|
|
|
·
|
underwritten
transactions;
|
|
|
·
|
ordinary
brokerage transactions and transactions in which the broker solicits
purchasers; and
|
|
|
·
|
privately negotiated
transactions.
|
Such
transactions may be effected by the selling stockholders at market prices
prevailing at the time of sale or at negotiated prices. The selling
stockholders may effect such transactions by selling the common stock to
underwriters or to or through broker-dealers, and such underwriters or
broker-dealers may receive compensations in the form of discounts or commissions
from the selling stockholders and may receive commissions from the purchasers of
the common stock for whom they may act as agent. The selling
stockholders may agree to indemnify any underwriter, broker-dealer or agent that
participates in transactions involving sales of the shares against certain
liabilities, including liabilities arising under the Securities
Act. We have agreed to register the shares for sale under the
Securities Act and to indemnify the selling stockholders, certain
representatives of the selling stockholders and each person who participates as
an underwriter in the offering of the shares against certain civil liabilities,
including certain liabilities under the Securities Act. We are
required to pay certain fees and expenses incurred by us incident to the
registration of the shares.
In
connection with sales of the common stock under this prospectus, upon
effectiveness of the registration statement, the selling stockholders may enter
into hedging transactions with broker-dealers, who may in turn engage in short
sales of the common stock in the course of hedging the positions they
assume. Upon effectiveness of the registration statement, the selling
stockholders also may sell shares of common stock short and deliver them to
close out the short positions, or loan or pledge the shares of common stock to
broker-dealers that in turn may sell them.
Because
selling stockholders may be deemed to be statutory “underwriters” within the
meaning of the Securities Act, they will be subject to the prospectus delivery
requirements of the Securities Act. The selling stockholders are subject to the
applicable provisions of the Securities Act, and the rules and regulations
thereunder which may restrict certain activities of, and limit the timing of
purchases and sales of securities by, selling stockholders and other persons
participating in a distribution of securities.
The
selling stockholders may also sell shares under Rule 144 of the Securities Act,
if available, rather than under this prospectus. There is no
underwriter or coordinating broker acting in connection with the proposed sale
of the shares by the selling stockholders.
The
selling stockholders and any underwriters, dealers or agents that participate in
distribution of the shares may be deemed to be underwriters, and any profit on
sale of the shares by them and any discounts, commissions or concessions
received by any underwriter, dealer or agent may be deemed to be underwriting
discounts and commissions under the Securities Act. The selling
stockholders do not expect these commissions and discounts to exceed what is
customary in the types of transactions involved.
Under
applicable rules and regulations under the Exchange Act, any person engaged in
the distribution of the resale shares may not simultaneously engage in market
making activities with respect to the common stock for the applicable restricted
period, as defined in Regulation M, prior to the commencement of the
distribution. In addition, the Selling Stockholders will be subject
to applicable provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of purchases and
sales of shares of the common stock by the Selling Stockholders or any other
person. We will make copies of this prospectus available to the
Selling Stockholders and have informed them of the need to deliver a copy of
this prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
We agreed
to keep this prospectus effective until the earlier of (x) the date when all the
shares registered hereby have been sold or (y) the date on which the shares
registered hereby may be sold without any restriction pursuant to Rule 144(k) as
determined by the counsel to the Company. There can be no assurances
that the selling stockholders will sell any or all of the shares offered under
this prospectus.
The
following is a description of certain provisions relating to our capital
stock. For additional information regarding our stock, please refer
to our Articles of Incorporation and Bylaws which have previously been filed
with the SEC.
General
Our
authorized capital stock consists of 16,000,000 shares of which there are
15,000,000 shares of common stock, par value $.01 per share, and 1,000,000
shares of preferred stock, par value $.10 per share.
Common
Stock
As of
February 4, 2008, there were 7,558,676 shares of common stock
outstanding. We are registering 1,165,000 shares of common stock
herewith. The rights of all holders of the common stock are identical
in all respects. The holders of the common stock are entitled to
receive ratably such dividends, if any, as may be declared by the Board of
Directors out of legally available funds. The current policy of the
Board of Directors, however, is to retain earnings, if any, for
reinvestment.
Upon
liquidation, dissolution or winding up of the Company, the holders of the common
stock are entitled to share ratably in all aspects of the Company that are
legally available for distribution, after payment of or provision for all debts
and liabilities.
The
holders of the common stock do not have preemptive subscription, redemption or
conversion rights under our Articles of Incorporation. Cumulative
voting in the election of Directors is not permitted. The outstanding
shares of common stock are validly issued, fully paid and
nonassessable. The rights, preferences and privileges of holders of
common stock will be subject to, and may be adversely affected by, the rights of
holders of shares of any series of preferred stock that are presently
outstanding or that may be designated and issued by us in the
future.
The
consolidated financial statements of Rick’s Cabaret International, Inc. for the
years ended September 30, 2007 and 2006, incorporated by reference, have
been audited by Whitley Penn LLP, independent registered public accounting firm,
as set forth in their report included in such consolidated financial statements,
in reliance upon such report given on the authority of such firm as experts in
accounting and auditing.
The
combined financial statements of Miami Gardens Square One, Inc. and Stellar
Management Corporation for the nine months ended September 30, 2007 and the year
ended December 31, 2006, incorporated by reference, have been audited by Whitley
Penn LLP, independent registered public accounting firm, as set forth in their
report included in such combined financial statements, in reliance upon such
report given on the authority of such firm as experts in accounting and
auditing.
The
validity of the issuance of the common stock offered under this prospectus has
been passed upon for us by Axelrod, Smith & Kirshbaum, P.C., Houston,
Texas.
There
have been no material changes in the Registrant’s affairs since the end of the
last fiscal year.
This
prospectus is a part of a registration statement on Form S-3 that we filed
with the SEC with respect to the shares offered by this prospectus. This
prospectus does not contain all of the information that is in the registration
statement. We omitted certain parts of the registration statement as allowed by
the SEC. We refer you to the registration statement and its exhibits for further
information about us and the shares offered by the selling
stockholders.
The SEC
allows us to “incorporate by reference” the information we file with the SEC,
which means that we can disclose important information to you by referring to
those documents. The information incorporated by reference is an important part
of this prospectus. The information that we file later with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 until this offering is completed:
|
|
•
|
our
Annual Report on Form 10-KSB for the year ended September 30,
2007;
|
|
|
•
|
our
Quarterly Report on Form 10-QSB for the quarter ended December 31,
2007;
|
|
|
•
|
our
Current Reports on (i) Forms 8-K filed February 13, 2008, December 3,
2007, November 20, 2007, and October 18, 2007, and (ii) Forms
8-K/A filed on February 11 and January 29, 2008;
and
|
|
|
•
|
our
Proxy Statement for the 2007 Annual Meeting of
Stockholders.
|
You may
request a copy of these filings, at no cost, by writing to or telephoning us at
the address below. However, we will not provide copies of the exhibits to these
filings unless we specifically incorporated by reference the exhibits in this
prospectus.
|
|
Eric Langan,
CEO/President
|
|
|
Rick’s
Cabaret International, Inc.
|
|
|
10959
Cutten Road
|
|
|
Houston,
Texas 77066
|
|
|
281-397-6730
|
INDEMNIFICATION FOR
SECURITIES ACT LIABILITIES
Our
certificate of incorporation provides that we shall indemnify our directors and
officers to the fullest extent permitted by Texas law and that none of our
directors will be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability:
|
|
•
|
for
any breach of the director's duty of loyalty to the Company or its
stockholders;
|
|
|
•
|
for
acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of the law;
|
|
|
•
|
under
the Texas Business Organization Code for the unlawful payment of
dividends; or
|
|
|
•
|
for
any transaction from which the director derives an improper personal
benefit.
|
These
provisions require us to indemnify our directors and officers unless restricted
by Texas law and eliminate our rights and those of our stockholders to recover
monetary damages from a director for breach of his fiduciary duty of care as a
director except in the situations described above. The limitations summarized
above, however, do not affect our ability or that of our stockholders to seek
non-monetary remedies, such as an injunction or rescission, against a director
for breach of his fiduciary duty.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to our directors, officers and controlling persons pursuant to the
foregoing provisions, we have been advised that in the opinion of the Securities
and Exchange Commission, such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
WHERE YOU
CAN FIND MORE INFORMATION
We have
filed with the SEC a registration statement on Form S-3 under the Securities
Act, and the rules and regulations promulgated thereunder, with respect to the
common stock offered hereby. This prospectus, which constitutes a part of the
registration statement, does not contain all of the information set forth in the
registration statement and the exhibits thereto. Statements contained
in this prospectus as to the contents of any contract or other
document that is filed as an exhibit to the registration
statement are not necessarily complete and each
such statement is qualified in all respects by reference
to the full text of such contract or document. For further information with
respect to us and the common stock, reference is hereby made to the registration
statement and the exhibits thereto, which may be inspected and copied at the
SEC’s Public Reference Room located at 100 F Street, N.E., Washington, D.C.
20549, and copies of all or any part thereof may be obtained at prescribed rates
from the Commission at such addresses. Also, the SEC maintains a
World Wide Web site on the Internet at http://www.sec.gov
that contains reports, proxy and information statements and other
information regarding registrants that
file electronically with the SEC. Additional
information can also be obtained through our website at www.Ricks.com. We
also make available free of charge our annual, quarterly and current reports,
proxy statements and other information upon request. To request such
materials, please contact Mr. Eric Langan, our President and Chief Executive
Officer, at 10959 Cutten Road, Houston, Texas 77066.
We are in
compliance with the information and periodic reporting requirements of the
Exchange Act and, in accordance therewith, will file periodic reports, proxy and
information statements and other information with the SEC. Such periodic
reports, proxy and information statements and other information will be
available for inspection and copying at the principal office, public reference
facilities and Web site of the SEC referred to above.
PART
II – INFORMATION NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth estimated expenses expected to be incurred in
connection with the issuance and distribution of the securities being
registered. All such expenses will be paid by us.
|
Securities
and Exchange Commission Registration Fee
|
|
$ |
641 |
|
|
Printing
and Engraving Expenses
|
|
|
-0- |
|
|
Accounting
Fees and Expenses
|
|
$ |
5,000 |
|
|
Legal
Fees and Expenses
|
|
$ |
10,000 |
|
|
Blue
Sky Qualification Fees and Expenses
|
|
|
-0- |
|
|
Miscellaneous
|
|
|
-0- |
|
|
|
|
|
|
|
|
TOTAL
|
|
$ |
15,641 |
|
Item
15. Indemnification of Directors and Officers.
The
officers and directors of the Company are indemnified as provided by the Texas
Business Corporation Act (the "TBCA") and the Bylaws of the
Company. Unless specifically limited by a corporation's articles of
incorporation, the TBCA automatically provides directors with immunity from
monetary liabilities. Our Articles of Incorporation do not contain
any such limiting language. Excepted from that immunity
are:
|
|
a.
|
willful
failure to deal fairly with the corporation or its stockholders in
connection with a matter in which the director has a material conflict of
interest;
|
|
|
b.
|
a
violation of criminal law unless the director had reasonable cause to
believe that his or her conduct was lawful or no reasonable cause to
believe that his or her conduct was
unlawful;
|
|
|
c.
|
a
transaction from which the director derived an improper personal profit;
and
|
The
Articles of Incorporation provide that the Company will indemnify its officers,
directors, legal representative, and persons serving at the request of the
Company as a director or officer of another corporation, or as its
representative in a partnership, joint venture, trust or other enterprise to the
fullest extent legally permissible under the laws of the State of Texas against
all expenses, liability and loss (including attorney's fees, judgments, fines
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
that person as a result of that connection to
the Company. This right of indemnification under the Articles is a
contract right which may be enforced in any manner by such person and extends
for such persons benefit to all actions undertaken on behalf of the
Company.
The
Bylaws of the Company provide that the Company will indemnify its directors and
officers to the fullest extent not prohibited by Texas law; provided, however,
that the Company may modify the extent of such indemnification by individual
contracts with its directors and officers; and, provided, further, that the
Company shall not be required to indemnify any director or officer in connection
with any proceeding (or part thereof) initiated by such person unless (i) such
indemnification is expressly required to be made by law, (ii) the proceeding was
authorized by the Board of Directors of the Company, (iii) such indemnification
is provided by the Company, in its sole discretion, pursuant to the powers
vested in the Company under Texas law or (iv) such indemnification is required
to be made pursuant to the Bylaws.
The
Bylaws of the Company provide that the Company will advance to 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, by reason of the fact that he is or was a
director or officer, of the Company, or is or was serving at the request of the
Company as a director or executive officer of another Company, partnership,
joint venture, trust or other enterprise, prior to the final disposition of the
proceeding, promptly following request
therefor, all expenses incurred by any
director or officer in connection with such proceeding
upon receipt of an undertaking by or on behalf of such person to repay said
amounts if it should be determined ultimately that such person is not
entitled to be indemnified under the Bylaws of the
Company or otherwise.
Our
Bylaws provide that no advance shall be made by the Company to an officer of the
Company (except by reason of the fact that such officer is or was a director of
the Company in which event this paragraph shall not apply) in any action, suit
or proceeding, whether civil, criminal, administrative or investigative, if a
determination is reasonably and promptly made (i) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not parties to the
proceeding, or (ii) if such quorum is not obtainable,
or, even if obtainable, a quorum of disinterested
directors so directs, by
independent legal counsel in a written opinion, that
the facts known to the decision-making party at the time such determination is
made demonstrate clearly and convincingly that such person acted
in bad faith or in a manner that such
person did not believe to be in or not opposed to the
best interests of the Company.
Item
16. Exhibits.
The
following is a list of exhibits filed as part of this registration
statement. Where so indicated by footnote, exhibits which were
previously filed are incorporated herein by reference. 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.
|
Exhibit
Number
|
|
Description
|
|
|
|
|
|
4.1
|
|
Stock Purchase Agreement (Form
Of) dated November 16, 2007 1
|
|
|
|
Legal
Opinion of Axelrod, Smith & Kirshbaum, P.C. 2
|
|
|
|
Consent of Whitley Penn
LLP, Independent Registered Public Accounting Firm 2
|
|
23.2
|
|
Consent
of Axelrod, Smith & Kirshbaum, P.C. (incorporated in Exhibit 5.1)
2
|
|
|
|
|
|
|
|
|
|
1
|
|
Previously
filed as Exhibit 10.1 to our Form 8-K filed on November 20, 2007 and
incorporated herein by reference.
|
|
2
|
|
Filed
herewith.
|
Item
17. Undertakings.
|
(1)
|
The
Company hereby undertakes:
|
(a) 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.
(b) 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) Insofar
as indemnification for liabilities arising under the Securities Act 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 Securities 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, as amended, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, on the 14th day of February, 2008.
RICK’S
CABARET INTERNATIONAL, INC.
By /s/ Eric
Langan
Eric
Langan
President,
Principal and Chief Executive Officer
POWER
OF ATTORNEY
Rick’s
Cabaret International, Inc. and each of the undersigned do hereby appoint Eric
Langan his true and lawful attorney to execute on behalf of Rick’s Cabaret
International, Inc. and the undersigned any and all amendments to this
Registration Statement on Form S-3 and to file the same with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission; each of such persons shall have the power to act hereunder
with or without the other.
In
accordance with the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates stated.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By
/s/ Eric
Langan
|
|
Chairman
of the Board, Director,
|
|
February
14, 2008
|
|
Eric
Langan
|
|
President,
Principal and Chief
|
|
|
|
|
|
Executive
Officer |
|
|
|
|
|
|
|
|
|
By
/s/ Phillip K.
Marshall
|
|
Chief
Financial Officer and
|
|
February
14, 2008
|
|
Phillip
K. Marshall
|
|
Principal
Accounting Officer
|
|
|
|
|
|
|
|
|
|
By
/s/ Travis
Reese
|
|
Vice
President and Director
|
|
February
13, 2008
|
|
Travis
Rees
|
|
|
|
|
|
|
|
|
|
|
|
By
/s/ Steven L.
Jenkins
|
|
Director
|
|
February
13, 2008
|
|
Steven
L. Jenkins
|
|
|
|
|
|
|
|
|
|
|
|
By /s/
Alan Bergstrom
|
|
Director
|
|
February
13, 2008
|
|
Alan
Bergstrom
|
|
|
|
|
|
|
|
|
|
|
|
By
/s/ Robert
Watters
|
|
Director
|
|
February
13, 2008
|
|
Robert
Watters
|
|
|
|
|
|
|
|
|
|
|
|
By
/s/ Luke
Lirot
|
|
Director
|
|
February
13,
2008
|
|
Luke
Lirot
|
|
|
|
|
Page 17