As filed with the Securities and Exchange Commission on February 9, 2007
Registration Statement No. 333-____________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Morton's Restaurant Group, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 13-3490149
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(State or other jurisdiction of IRS Employer Identification Number)
incorporation or organization)
325 North LaSalle Street, Suite 500
Chicago, Illinois 60610
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(Address of Principal Executive Offices) (Zip Code)
2006 Morton's Restaurant Group, Inc. Stock Incentive Plan
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(Full title of the plan)
Thomas J. Baldwin
Morton's Restaurant Group, Inc.
Chairman, Chief Executive Officer and President
325 North LaSalle Street, Suite 500
Chicago, Illinois 60610
Ph: (312) 923-0030
Fax: (312) 923-0090
Copies to:
Michael R. Littenberg, Esq.
Schulte Roth & Zabel LLP
919 Third Avenue
New York, New York 10022
Ph: (212) 756-2000
Fax: (212) 593-5955
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(Name, address and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
=========================== ================= ==================== ===================== ====================
Proposed maximum Proposed maximum Amount of
Title of securities to be Amount to be offering price aggregate offering registration fee
registered registered (1) per share (3) price (3)
--------------------------- ----------------- -------------------- --------------------- --------------------
Common Stock, par value 1,789,000(2) $19.90 $35,601,100 $3,809.32
$.01 per share
=========================== ================= ==================== ===================== ====================
(1) In accordance with Rule 416 under the Securities Act of 1933, as amended
(the "Securities Act"), this Registration Statement shall be deemed to cover
any additional securities that may from time to time be offered or issued to
prevent dilution resulting from stock splits, stock dividends or similar
transactions.
(2) Consists of 1,789,000 shares of common stock, par value $.01 per share (the
"Common Stock"), of Morton's Restaurant Group, Inc., a Delaware corporation
(the "Corporation", "Registrant", "we", "us" or "our"), available to be
granted under, or upon the exercise of options available to be granted
under, the 2006 Morton's Restaurant Group, Inc. Stock Incentive Plan (the
"Plan").
(3) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rules 457(c) and 457(h)(1) of the Securities Act, the proposed
maximum offering price per share, the proposed maximum aggregate offering
price and the amount of registration fee have been computed based on the
offering of all 1,789,000 shares registered under this Registration
Statement at a price of $19.90 per share, which is the average of the high
and low prices of the Common Stock as quoted on the New York Stock Exchange
on February 2, 2007.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
The documents containing the information specified in Part I of Form S-8
will be sent or given to all persons who participate in the Plan, as specified
by Rule 428(b)(1) under the Securities Act. These documents are not required to
be filed with the Securities and Exchange Commission (the "Commission") as part
of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act. These documents, and the
documents incorporated by reference in this Registration Statement pursuant to
Item 3 of Part II of this Registration Statement, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The documents incorporated by reference in Item 3 of Part II of this
Registration Statement are available to participants in the Plan, without
charge, upon written or oral request, and they are also incorporated by
reference in the Section 10(a) prospectus described in Item 1, above. Any such
requests should be directed to the Registrant at the address and telephone
number listed on the cover page of this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
We are subject to the informational and reporting requirements of
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and, in accordance therewith, file reports, proxy
statements and other information with the Commission. The following documents,
which are on file with the Commission, are incorporated into this Registration
Statement by reference:
(1) Our Annual Report on Form 10-K for the fiscal year ended January 1,
2006;
(2) Our Quarterly Reports on Form 10-Q for the quarterly periods ended
April 2, 2006, July 2, 2006 and October 1, 2006;
(3) Our Current Reports on Form 8-K dated January 3, 2006, January 16,
2006, March 7, 2006, March 10, 2006, May 4, 2006, July 27, 2006, October 26,
2006 and January 31, 2007; and
(4) The description of our Common Stock contained in our Registration
Statement on Form 8-A, filed with the Commission on February 8, 2006,
incorporating such description from our Registration Statement on Form S-1
initially filed with the Commission on December 2, 2005 (Registration No.
333-130072) (as amended by Amendment No. 1 thereto filed with the Commission on
January 9, 2006, Amendment No. 2 thereto filed with the Commission on January
23, 2006, Amendment No. 3 thereto filed with the Commission on February 2, 2006,
and Amendment No. 4 thereto filed with the Commission on February 7, 2006).
All documents filed by us pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, after the date of this Registration Statement 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 in this
Registration Statement and to be part hereof from the date of filing of such
documents. Any statement contained in this Registration Statement, or in a
document incorporated or deemed to be incorporated by reference in this
Registration Statement, shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a statement contained
in this Registration Statement, or in any other subsequently filed document
which also is or is deemed to be incorporated by reference in this Registration
Statement, modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
INDEMNIFICATION UNDER THE DELAWARE GENERAL CORPORATION LAW.
Subsection (a) of Section 145 of the General Corporation Law of the
State of Delaware (the "DGCL") empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the person in connection with
such action, suit or proceeding if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the person's conduct was
unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by the person in
connection with the defense or settlement of such action or suit if the person
acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the Court of Chancery or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a present or former
director or officer of a corporation has been successful on the merits or
otherwise in the defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145 in the defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith; that indemnification provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
that indemnification provided for by Section 145 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 such
person's heirs, executors and administrators; and empowers the corporation to
purchase and maintain insurance on behalf of a director, officer, employee or
agent of the corporation against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of such person's
status as such whether or not the corporation would have the power to indemnify
such person against such liabilities under Section 145.
Section 102(b)(7) of the DGCL provides that a certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
shall not eliminate or limit the liability of a director (1) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (2) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (3) under Section 174 of the DGCL, or (4) for any
transaction from which the director derived an improper personal benefit. Our
certificate of incorporation contains such a provision.
These provisions will not limit the liability of directors or officers
under the federal securities laws of the United States.
INDEMNIFICATION UNDER THE CERTIFICATE OF INCORPORATION OF MORTON'S RESTAURANT
GROUP, INC.
Article VI of the amended and restated certificate of incorporation of
the Corporation expressly provides that a director of the Corporation shall not
be liable to the Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, except to the extent such exemption from
liability or such limitation thereof is not permitted by the DGCL (including,
without limitation, Section 102(b)(7) thereof), as amended or supplemented from
time to time.
Article VI of the amended and restated certificate of incorporation of
the Corporation provides each person (and the heirs, executors and
administrators of such person) who was or is a party or is threatened to be made
a party to, or is involved in any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person (i) is or was a director, officer or
employee of the Corporation, or (ii) serves or served as a director, officer or
employee of any other enterprise either (x) at the request of the Corporation or
(y) that is or was a direct or indirect subsidiary (whether wholly owned or
otherwise) of the Corporation at the time of such person's service as a
director, officer or employee of such other enterprise, shall be indemnified and
held harmless by the Corporation to the fullest extent permitted by the DGCL and
not otherwise prohibited by applicable law; provided, however, that except for
proceedings by any such person to enforce rights to indemnification, the
Corporation shall not be obligated to indemnify such person (or the heirs,
executors or administrators of such person) in connection with any action, suit
or proceeding (or part thereof) initiated by such person (or the heirs,
executors or administrators of such person) unless such action, suit or
proceeding (or part thereof) was authorized or consented to by the Board of
Directors. For purposes of such Article VI, the term "other enterprise" includes
any corporation, partnership, limited liability company, joint venture, trust or
other enterprise.
In addition, Article VI of the amended and restated certificate of
incorporation of the Corporation provides that the Corporation, to the fullest
extent permitted by the DGCL and not otherwise prohibited by applicable law, may
advance to any person who is or was a director, officer or employee of the
Corporation (and the heirs, executors and administrators of such person) any and
all expenses (including, without limitation, attorneys fees and disbursements
and court costs) reasonably incurred by such person in respect of defending any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, to which such person was or is a party or is threatened to be
made a party, by reason of the fact that such person (i) is or was a director,
officer or employee of the Corporation, or (ii) serves or served as a director,
officer or employee of any other enterprise either (x) at the request of the
Corporation or (y) that is or was a direct or indirect subsidiary (whether
wholly owned or otherwise) of the Corporation at the time of such person's
service as a director, officer or employee of such other enterprise; provided,
however, that, to the extent the DGCL requires, the payment of such expenses in
advance of the final disposition of the action, suit or proceeding shall be made
only upon delivery to the Corporation of an undertaking, by or on behalf of such
person, to repay all amounts so advanced if it shall ultimately be determined
that such person is not entitled to be indemnified against such expense under
such Article VI or otherwise. The Corporation by provisions in its bylaws or by
agreement may accord any such person the right to, or regulate the manner of
providing to any such person, such advancement of expenses to the fullest extent
permitted by the DGCL.
INDEMNIFICATION UNDER THE BYLAWS OF MORTON'S RESTAURANT GROUP, INC.
The bylaws of the Corporation do not contain any provisions with respect
to indemnification.
INDEMNIFICATION UNDER INDEMNIFICATION AGREEMENTS WITH OUR DIRECTORS AND OFFICERS
The Corporation entered into indemnification agreements with certain of
its officers and directors. The indemnification agreements provide
indemnification to such individuals under certain circumstances for acts or
omissions which may not be covered by directors' and officers' liability
insurance, and may, in some cases, be broader than the specific indemnification
provisions contained under Delaware law. The Corporation has also obtained
directors' and officers' liability insurance, which insures against liabilities
that its directors or officers may incur in such capacities.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a complete list of exhibits filed as part of this
Registration Statement:
EXHIBIT
NUMBER DESCRIPTION
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*4.1 2006 Morton's Restaurant Group, Inc. Stock Incentive Plan.
**5.1 Opinion of Schulte Roth & Zabel LLP.
**23.1 Consent of KPMG LLP.
**23.2 Consent of Schulte Roth & Zabel LLP (incorporated by reference in
Exhibit 5.1).
**24 Power of Attorney (included on the signature pages to this
Registration Statement).
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* Incorporated by reference to Amendment No. 2 to the Registration Statement on
Form S-1 of the Registrant (file No. 333-130072), filed on January 23, 2006.
** Filed herewith.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act.
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in the periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the 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 Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Chicago, State of Illinois, on the 9th day of
February, 2007.
MORTON'S RESTAURANT GROUP, INC.
By: /s/ Thomas J. Baldwin
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Name: Thomas J. Baldwin
Date: February 9, 2007 Title: Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below hereby constitutes and appoints Thomas J. Baldwin and Ronald M.
DiNella, and each of them, severally (with full power to act alone), as the true
and lawful attorneys-in-fact and agents for the undersigned, with full power of
substitution and resubstitution, for and in the name, place, and stead of the
undersigned in any and all capacities, to sign any and all amendments to the
registration statement, including post-effective amendments thereto and any
registration statements filed pursuant to Rule 462 under the Securities Act of
1933, and to file the same, with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
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Signature Title Date
/s/ Thomas J. Baldwin Chairman, Chief Executive Officer, February 9, 2007
------------------------------------- President and Director
Thomas J. Baldwin (PRINCIPAL EXECUTIVE OFFICER)
/s/ Ronald M. DiNella Senior Vice President, Chief February 8, 2007
-------------------------------------- Financial Officer, Secretary
Ronald M. DiNella and Treasurer
(PRINCIPAL FINANCIAL AND ACCOUNTING
(OFFICER)
/s/ John K. Castle February 9, 2007
-------------------------------------- Director
John K. Castle
/s/ Lee M. Cohn February 9, 2007
-------------------------------------- Director
Lee M. Cohn
/s/ Dr. John J. Connolly February 9, 2007
-------------------------------------- Director
Dr. John J. Connolly
/s/ Robert A. Goldschmidt February 8, 2007
-------------------------------------- Director
Robert A. Goldschmitdt
/s/ Stephen E. Paul February 9, 2007
-------------------------------------- Director
Stephen E. Paul
/s/ David B. Pittaway February 9, 2007
-------------------------------------- Director
David B. Pittaway
/s/ Dianne H. Russell February 9, 2007
-------------------------------------- Director
Dianne H. Russell
/s/ Zane Tankel February 8, 2007
-------------------------------------- Director
Zane Tankel
/s/ Alan A. Teran February 8, 2007
-------------------------------------- Director
Alan A. Teran
/s/ Justin B. Wender February 9, 2007
-------------------------------------- Director
Justin B. Wender
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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*4.1 2006 Morton's Restaurant Group, Inc. Stock Incentive Plan.
**5.1 Opinion of Schulte Roth & Zabel LLP.
**23.1 Consent of KPMG LLP.
**23.2 Consent of Schulte Roth & Zabel LLP (incorporated by reference in
Exhibit 5.1).
**24 Power of Attorney (included on the signature pages to this
Registration Statement).
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* Incorporated by reference to Amendment No. 2 to the Registration Statement on
Form S-1 of the Registrant (file No. 333-130072), filed on January 23, 2006.
** Filed herewith.