RED ROBIN GOURMET BURGERS, INC.
(Exact name of registrant as specified in its
charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
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84-1573084
(I.R.S. Employer
Identification No.)
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10000 E. Geddes Avenue, Suite 500
Englewood, CO 80112
(Address of principal executive offices)
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80112
(Zip code)
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G.J. Hart
President and Chief Executive Officer
10000 E. Geddes Avenue, Suite 500
Englewood, CO 80112
(Name and address of agent for service)
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(303) 846-6000
(Telephone number, including area code,
of agent for service)
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2022 Employment Inducement Grant
(Full title of the Plan)
Copies to:
David S. Huntington, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
(212) 373-3000
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth
company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
☐ |
Smaller reporting company |
☐ |
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Emerging growth company |
☐ |
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 7(a)(2)(B) of the Securities Act. ☐
EXPLANATORY NOTE
This registration statement is filed by Red
Robin Gourmet Burgers, Inc. (the “Company” or “Registrant”) to register 247,524
shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”) that are reserved for
issuance upon the vesting of performance stock units and restricted stock units granted to G.J. Hart, the Company’s recently
appointed President and Chief Executive Officer (the “Inducement Grant”). The Inducement Grant has been granted outside
of the Company’s long-term incentive plan as an inducement material to Mr. Hart entering into employment with the Company in
accordance with Nasdaq Listing Rule 5635(c)(4).
PART I
INFORMATION REQUIRED
IN THE
SECTION 10(a) PROSPECTUS
The document(s) containing
the information specified in Part I of Form S-8 (plan information and Company information) will be sent or given to employees as specified
by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). Such documents need not be filed with
the Securities and Exchange Commission (the “Commission”) either as part of this registration statement or as prospectuses
or prospectus supplements pursuant to Securities Act Rule 424. These documents, which include the statement of availability required by
Item 2 of Form S-8, and the documents incorporated by reference in this registration statement pursuant to Item 3 of Form S-8 (Part II
hereof), taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED
IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, previously filed by the
Company with the Commission, are hereby incorporated in this registration statement by reference as of their date of filing with the Commission:
| · | The Company’s Annual Report on Form 10-K for the fiscal year ended December 26, 2021, filed with the Commission on March 10,
2022; |
| · | The Company’s Quarterly Report on Form 10-Q for the quarter ended April 17, 2022, filed with the Commission on May 26, 2022; |
| · | The Company’s Quarterly Report on Form 10-Q for the quarter ended July 10, 2022, filed with the Commission on August 10, 2022; |
| · | The Company’s Current Reports on Form 8-K filed on February 3, 2022, March 10, 2022 (Film No. 22729009), May 20, 2022, June 23, 2022, June 29, 2022 and July 14, 2022; and |
| · | The description of the Company’s Common Stock contained in its Registration Statement on Form S-3, filed with the SEC on May
29, 2020 (File No. 333-238806), and any other amendment or report filed for the purpose of updating such description. |
All other documents filed by the Company pursuant
to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) subsequent to the date
of this registration statement and prior to the filing of a post-effective amendment to this registration statement indicating that all
securities offered under the registration statement have been sold, or deregistering all securities then remaining unsold, are also incorporated
herein by reference and shall be a part hereof from the date of the filing of such documents.
Any statement contained in a document incorporated
by, or deemed incorporated by reference herein, 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 document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
The Common
Stock is registered pursuant to Section 12 of the Exchange Act and, therefore, the description of securities is omitted.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officer.
Section 145 of the Delaware General Corporation
Law (the “DGCL”) provides that a corporation may indemnify directors and officers as well as other employees and agents against
expenses (including attorneys’ fees) and (other than in actions by or in the right of the corporation to procure a judgment in its
favor) judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened,
pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been
a director, officer, employee or agent of the registrant. The DGCL provides that Section 145 is not exclusive of other rights to which
those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
Section 1 of Article VIII of the registrant’s Fourth Amended and Restated Bylaws provides for mandatory indemnification by the registrant
of its present and former directors and officers and permits indemnification by the registrant of its employees and agents to the fullest
extent permitted by the DGCL.
Section 102(b)(7) of the DGCL permits a corporation
to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) for unlawful payments of dividends or unlawful stock repurchases or redemptions, or (iv) for any
transaction from which the director derived an improper personal benefit. The registrant's certificate of incorporation provides that:
A director of [the Company] shall not be personally
liable to [the Company] or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i)
for any breach of the director's duty of loyalty to [the Company] or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or
(iv) for any transaction from which the director derived an improper personal benefit.
The Company maintains standard policies of insurance
under which coverage is provided (a) to its directors and officers against loss arising from claims made by reason of breach of duty or
other wrongful act, and (b) to the Company with respect to payments which may be made by the registrant to such officers and directors
pursuant to the above indemnification provision or otherwise as a matter of law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
3.3* |
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Amendment No. 1 dated February 13, 2013 to Fourth Amended and Restated Bylaws dated May 24, 2012. Incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K filed on February 19, 2013 (File No. 001-34851). |
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3.4* |
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Specimen stock certificate. Incorporated by reference to Exhibit 4.1 to Amendment No. 1 of our Registration Statement on Form S-1 filed on June 10, 2002 (Registration No. 333-87044). |
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5.1 |
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Opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP. |
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10.1 |
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Red Robin Gourmet Burgers, Inc. Employment Inducement Award Restricted Stock Unit Grant Agreement |
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10.2 |
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Red Robin Gourmet Burgers, Inc. Employment Inducement Award Performance Stock Unit Award Agreement |
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23.1 |
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Consent of Paul, Weiss, Rifkind, Wharton & Garrison LLP (included in Exhibit 5.1). |
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23.2 |
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Consent of KPMG LLP. |
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23.3 |
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Consent of Deloitte & Touche LLP. |
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24.1 |
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Power of Attorney (included on signature page of this registration statement). |
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107 |
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Filing Fee Table |
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| * | Incorporated herein by reference as indicated |
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 this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth
in this registration statement. 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 20% change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in this registration statement. |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in this registration statement
or any material change to such information in this registration statement; |
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in 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
this 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 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-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Greenwood Village, State of Colorado, on this 13th day of September, 2022.
Date: September 13, 2022
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RED ROBIN GOURMET BURGERS, INC. |
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By: |
/s/ G.J. Hart |
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Name: |
G.J. Hart |
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Title: |
President and Chief Executive Officer |
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person
whose signature appears below constitutes and appoints G.J. Hart, Lynn S. Schweinfurth and Michael Kaplan and each of them, as his or
her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration
statement, 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 full power and authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature |
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Title |
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Date |
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/s/ G. J. HART |
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President and Chief Executive Officer; |
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September 13, 2022 |
G.J. Hart |
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Director (Principal Executive Officer and Director) |
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/s/ LYNN S. SCHWEINFURTH |
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Executive Vice President, Chief Financial |
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September 13, 2022 |
Lynn S. Schweinfurth |
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Officer (Principal Financial Officer) |
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/s/ CHERI KINDER |
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Chief Accounting Officer |
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September 13, 2022 |
CHERI KINDER |
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(Principal Accounting Officer) |
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/s/ DAVID A. PACE |
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Chairperson of the Board |
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September 13, 2022 |
David A. Pace |
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/s ANTHONY S. ACKIL |
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Director |
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September 13, 2022 |
Anthony S. Ackil |
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/s/ THOMAS G. CONFORTI |
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Director |
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September 13, 2022 |
Thomas G. Conforti |
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/s/ CAMBRIA W. DUNAWAY |
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Director |
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September 13, 2022 |
Cambria W. Dunaway |
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/s/ KALEN F. HOLMES |
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Director |
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September 13, 2022 |
Kalen F. Holmes |
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/s/ STEVEN K. LUMPKIN |
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Director |
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September 13, 2022 |
Steven K. Lumpkin |
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/s/ ALLISON PAGE |
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Director |
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September 13, 2022 |
Allison Page |
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/s/ ANDDRIA VARNADO |
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Director |
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September 13, 2022 |
Anddria Varnado |
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