- Current report filing (8-K)
June 03 2010 - 5:26PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
May 27, 2010
RED ROBIN GOURMET BURGERS, INC.
(Exact name of
registrant as specified in its charter)
Delaware
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0-49916
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84-1573084
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(State or other jurisdiction of
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(Commission file number)
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(I.R.S. Employer
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incorporation or organization)
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Identification Number)
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6312 S. Fiddlers Green Circle,
Suite 200N
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Greenwood Village, Colorado
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80111
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(Address of principal executive offices)
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(Zip Code)
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Registrants
telephone number, including area code:
(303) 846-6000
Not
Applicable
(Former name or
former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
o
Written communications pursuant to Rule 425
under the Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule 14a-12
under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant
to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant
to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item
1.01
Entry Into a Material
Definitive Agreement.
On
May 27, 2010, Red Robin Gourmet Burgers, Inc. (the Company) entered
into Indemnification Agreements with each of Robert B. Aiken, Lloyd L. Hill and
Stuart I. Oran, the Companys new directors.
The Indemnification Agreements executed by these directors are identical
to the form of Indemnification Agreement previously executed by other members
of the Board of Directors and management.
The
Indemnification Agreements are intended to complement the indemnity protection
available under applicable law, the Companys Amended and Restated Certificate
of Incorporation, as amended, and the Third Amended and Restated Bylaws, as
amended, and any policies of insurance which may currently or hereafter be
maintained by the Company. The
Indemnification Agreement provides, among other things, and subject to the
certain limitations described therein: (a) that the Company will indemnify
such director (each an Indemnitee), who was successful, in whole or in part,
whether on the merits or otherwise in defense of any action, suit or
proceeding, including actions by or in the right of the Company, if (i) the
Indemnitees conduct was in good faith, (ii) the Indemnitee reasonably
believed that his conduct was in or not opposed to the best interests of the
Company, and (iii) in the case of any criminal proceeding, the Indemnitee
had no reasonable cause to believe his conduct was unlawful; (b) that the
Company will advance expenses incurred by the Indemnitee in any such
proceeding, including attorneys fees, to the Indemnitee in advance of the
final disposition of the proceeding; and (c) that the rights of the
Indemnitee under the Indemnification Agreement are in addition to any other
rights the Indemnitee may have under the Companys Amended and Restated
Certificate of Incorporation, as amended, the Third Amended and Restated
Bylaws, as amended, the Delaware General Corporation Law or otherwise.
The
foregoing description of the Indemnification Agreement is qualified in its
entirety by reference to Exhibit 10.20 to the Companys registration
statement on Form S-1/A (No. 333-87044) filed with the Securities and
Exchange Commission (SEC) on July 12, 2002, and such exhibit is hereby
incorporated by reference in its entirety into this Item 1.01.
Item
5.03
Amendments to Articles
of Incorporation or Bylaws; Change in Fiscal Year.
Amendment to the Amended and Restated Certificate of
Incorporation
At
the 2010 Annual Meeting of Stockholders (the Annual Meeting) held on May 27,
2010, the stockholders of the Company approved an amendment to the Companys
Amended and Restated Certificate of Incorporation, as amended, adopting a
majority voting standard for uncontested director elections, as more fully
described in the Companys Proxy Statement dated April 26, 2010.
Subsequent to stockholder approval, the amendment was filed with the Secretary
of State of the State of Delaware and became effective on May 27, 2010.
A
copy of the Second Amendment to the Amended and Restated Certificate of
Incorporation is attached hereto as Exhibit 3.1 and is incorporated herein
by reference. The foregoing description
of the amendment is qualified in its entirety by reference to Exhibit 3.1.
2
Amendment to the Third Amended and Restated Bylaws
Concurrently
with the stockholder approval of the above-described amendment to the Companys
Amended and Restated Certificate of Incorporation, as amended, the Board of
Directors approved an amendment to the Companys Third Amended and Restated
Bylaws. The last paragraph of Section 7
of Article I of the Third Amended and Restated Bylaws was deleted and
replaced with the following paragraphs:
When
a quorum is present at any meeting for the election of directors, a nominee for
director shall be elected by the stockholders at such meeting if the votes cast
for such nominees election exceed the votes cast against (or withheld
from) such nominees election (with abstentions and broker non-votes not
counted as a vote either for or against that directors election);
provided, that directors shall be elected by a plurality of the votes cast at
any meeting of stockholders for which (i) the secretary of the corporation
receives a notice that a stockholder has nominated a person for election to the
Board of Directors in compliance with the advance notice requirements for
stockholder nominees for director set forth in Section 1 of this Article I;
and (ii) such nomination has not been rejected by the Corporation for any
reason or withdrawn by such stockholder on or before the tenth business day
before the corporation first mails its notice of meeting to the stockholders.
In the event the votes cast against (or withheld from) the nominee exceed
the votes cast for such nominee (with abstentions and broker non-votes
not counted as a vote either for or against that directors election) (a No
Vote), the resulting vacancy shall be filled only by a majority vote of the
directors then in office, though less than a quorum (and not by stockholders),
and the directors so chosen shall serve for a term expiring at the annual
meeting of stockholders at which the term of office of the class to which they
have been elected expires or until such directors successor shall have been
duly elected and qualified. In no event shall the Board of Directors nominate
or elect a person to the Board of Directors who has received a No Vote
subsequent to the adoption of this provision.
Except
as otherwise required by law, all other matters shall be determined by a
majority of the votes cast affirmatively or negatively.
A
copy of the Amendment No. 1 to the Third Amended and Restated Bylaws is
attached hereto as Exhibit 3.2 and is incorporated herein by
reference. The foregoing description of
the amendment is qualified in its entirety by reference to Exhibit 3.2.
Item 5.07
Submission of Matters to a Vote of Security Holders.
The Company held its Annual Meeting on May 27, 2010 at
the Companys offices in Greenwood Village, Colorado. Of the 15,615,358 shares of common stock
issued and outstanding as of the record date, 13,755,586 shares of common stock
(approximately 88.09%) were present or represented by proxy at the Annual
Meeting. The Companys stockholders
3
elected all of the directors nominated by the Companys
Board of Directors, approved the proposal to amend the Amended and Restated
Certificate of Incorporation, as amended, to adopt a majority voting standard
for uncontested director elections, and ratified the appointment of Deloitte &
Touche LLP as the Companys independent registered public accounting firm for
the fiscal year ending December 26, 2010. The results of the voting on the
matters submitted to the stockholders are as follows:
1. Election of Lloyd L. Hill and Stuart I. Oran, to serve
on the Board of Directors of the Company until the 2013 annual meeting of
stockholders and until their successors have been duly elected and qualified,
or until the earlier of their respective deaths, resignations or retirement:
NAME
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FOR
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WITHHELD
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BROKER
NON-VOTE
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Lloyd L.
Hill
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11,898,262
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323,024
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1,534,300
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Stuart I.
Oran
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11,886,873
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334,413
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1,534,300
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2. Approval of the amendment to the Amended and Restated
Certificate of Incorporation, as amended, to adopt a majority voting standard
for uncontested director elections:
FOR
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WITHHELD
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ABSTAIN
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13,251,547
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497,912
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6,125
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3. Ratification of the selection of Deloitte &
Touche LLP as the Companys independent registered public accounting firm for
the fiscal year ending December 26, 2010:
FOR
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WITHHELD
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ABSTAIN
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13,739,604
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14,634
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1,347
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ITEM
9.01 Financial Statements and
Exhibits
(d) Exhibits
Exhibit No.
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Description
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3.1
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Second Amendment to the
Amended and Restated Certificate of Incorporation of Red Robin Gourmet
Burgers, Inc., dated May 27, 2010
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3.2
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Amendment No. 1 to
the Third Amended and Restated Bylaws, effective May 27, 2010
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4
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Date:
June 3, 2010
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RED
ROBIN GOURMET BURGERS, INC.
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By:
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/s/ Annita M. Menogan
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Name: Annita M. Menogan
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Title: Chief Legal Officer
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5
EXHIBIT
INDEX
Exhibit No.
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Description
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3.1
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Second Amendment to the
Amended and Restated Certificate of Incorporation of Red Robin Gourmet
Burgers, Inc., dated May 27, 2010
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3.2
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Amendment No. 1 to
the Third Amended and Restated Bylaws, effective May 27, 2010
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