As
filed with the Securities and Exchange Commission on June 25, 2009
Registration
No.
333-
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
RUBY
TUESDAY, INC.
(Exact
Name of Registrant as Specified in Its Charter)
Georgia
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63-0475239
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(State
or Other Jurisdiction of
Incorporation
or Organization)
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(I.R.S.
Employer
Identification
Number)
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150
West Church Avenue
Maryville,
TN 37801
(865)
379-5700
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(Address,
Including Zip Code, and Telephone Number, Including Area Code, of
Registrant’s Principal Executive
Offices)
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Scarlett
May
Vice
President, General Counsel
and
Secretary
Ruby
Tuesday, Inc.
150
West Church Avenue
Maryville,
TN 37801
(865)
379-5700
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(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of
Agent For Service)
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Copy
to:
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Richard
A. Drucker
Davis
Polk & Wardwell LLP
450
Lexington Avenue
New
York, New York 10017
(212)
450-4000
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Approximate date of commencement of
proposed sale to the public
: From time to time after this
Registration Statement becomes effective.
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.
x
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 post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the
Securities Act, check the following box.
o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer
o
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Accelerated
filer
x
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Non-accelerated
filer
o
(Do
not check if a smaller reporting company)
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Smaller
reporting company
o
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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 Unit (2)
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Proposed
Maximum Aggregate Offering Price
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Amount
of
Registration
Fee(3)(4)
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Common
Stock, par value $ 0.01 per share
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Preferred
Stock, par value $ 0.01 per share
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Debt
Securities
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Total
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$300,000,000
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$16,740
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(1)
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An
indeterminate aggregate initial offering price or number of the securities
of each identified class is being registered as may from time to time be
issued at indeterminate prices. Debt securities may be issued with
original issue discount such that the aggregate initial public offering
price will not exceed $300,000,000 together with the other securities
issued hereunder.
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(2)
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The
proposed maximum per unit and aggregate offering prices per class of
security will be determined from time to time by the registrant in
connection with the issuance by the registrant of the securities
registered under this registration
statement.
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(3)
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Estimated
solely for the purpose of calculating the registration fee pursuant to
Rule 457(o) under the Securities
Act.
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(4)
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Pursuant
to Rule 457(p) under the Securities Act of 1933, as amended, the full
amount of the registration fee of $16,740 is offset by $16,740 of the
registration fee previously paid by the registrant with respect to
securities of the registrant that were registered on Registration
Statement No. 333-159413, which was initially filed on May 22, 2009, which
securities were not sold.
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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 thereafter 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 said Section 8(a),
may determine.
EXPLANATORY
NOTE
On May
22, 2009, the registrant filed a Registration Statement on Form S-1, File No.
333-159413, (the “Form S-1”) registering securities with a proposed maximum
aggregate offering price of $300,000,000 for issuance to the public. No
securities have been sold under the Form S-1. The registrant is now eligible to
file on Form S-3 and accordingly has filed a request to withdraw the Form
S-1.
The information in this prospectus is
not
com
plete and may be changed. We
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 it is
n
ot soliciting
an
offer to buy these securities in any
state where the offer or sale is not permitted.
PROSPECTUS
(Subject to Completion)
Issued
June 25, 2009
$300,000,000
RUBY
TUESDAY, INC.
COMMON
STOCK
PREFERRED
STOCK
DEBT
SECURITIES
We may
offer from time to time common stock, preferred stock and debt
securities. Specific terms of these securities will be provided in
supplements to this prospectus. You should read this prospectus and
any supplement carefully before you invest.
Our
common stock is listed on the New York Stock Exchange under the symbol
“RT.”
We may
offer and sell these securities directly or to or through one or more
underwriters, dealers and/or agents, or directly to purchasers on a delayed or
continuous basis.
Investing
in the securities involves risks. See “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 ,
2009.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
You
should rely only on the information contained or incorporated by reference in
this prospectus, any accompanying prospectus supplement or any free writing
prospectus we may provide to you in connection with any offering of these
securities. We have not authorized anyone to provide you with
different information. We are offering to sell, and seeking offers to
buy, the securities only in jurisdictions where offers and sales are
permitted. This prospectus only provides you with a general
description of the securities to be offered. Each time we sell
securities described in this prospectus, we will provide a supplement to this
prospectus that will contain specific information about the terms of that
offering, including the specific amounts, prices and terms of the securities
being offered. The prospectus supplement may also add, update or change
information contained in this prospectus. You should carefully read both this
prospectus, any accompanying prospectus supplement and any free writing
prospectus, together with the additional information described under the heading
“Where You Can Find More Information.”
We have
filed a registration statement with the Securities and Exchange Commission
(“SEC”) of which this prospectus is a part. As permitted by the rules
and regulations of the SEC, this prospectus, any accompanying prospectus
supplement and any free writing prospectus we may provide you in connection with
any offering of these securities do not contain all of the information included
in the registration statement. You should review the entire
registration statement, including the exhibits, which is available as described
under “Where You Can Find More Information.” Statements contained in
this prospectus and any accompanying prospectus supplement or any free writing
prospectus about the provisions or contents of any agreement or other document
are only summaries. If SEC rules require that any agreement or
document be filed as an exhibit to the registration statement or any document
incorporated by reference in the registration statement, you should refer to
that agreement or document for its complete contents.
You
should not assume that the information in or incorporated by reference in this
prospectus, any prospectus supplement or any free writing prospectus is accurate
as of any date other than the date on the front of each such
document. Our business, financial condition, results of operations
and prospects may have changed since then. The information contained in this
prospectus, any prospectus supplement or any free writing prospectus is accurate
only as of the date on the front of such document, regardless of the time of
delivery of such document or of any sale of the securities.
In this
prospectus, “Ruby Tuesday,” the “Company,” “we,” “us” and “our” refer to Ruby
Tuesday, Inc. and its wholly-owned subsidiaries unless otherwise indicated or
the context suggests otherwise.
PROSPECTUS SUMMARY
This
summary highlights information contained or incorporated by reference in this
prospectus. This summary does not contain all of the information that you should
consider before deciding to invest in the securities. You should read this
entire prospectus carefully, including the financial data and related notes,
risk factors and other information incorporated by reference in this
prospectus.
Our
fiscal year ends on the first Tuesday following May 30 and as is the case once
every five or six years, we have a 53-week year. Fiscal 2006 was a 53-week year.
Fiscal years 2007 and 2008 each contained 52 weeks.
Overview
Our
mission is to be the best of the bar-grill sector of the restaurant industry by
delivering to our guests a high quality casual dining experience with compelling
value. Ruby Tuesday restaurants operate in the higher end of the bar
and grill segment of casual dining. As of March 3, 2009, we owned and
operated 671 casual dining restaurants, located in 27 states and the District of
Columbia, our franchise partnerships in which we own either a 1% or 50% equity
interest operated 119 restaurants and our traditional franchisees operated 54
domestic and 58 international restaurants. We do not own any of the
equity of entities that hold franchises under our traditional franchise program.
In addition, we operated two Wok Hay full service Asian restaurants.
The Company-owned and
operated restaurants are concentrated primarily in the Southeast, Northeast,
Mid-Atlantic and Midwest of the United States.
Our
principal executive offices are located at 150 West Church Avenue, Maryville,
Tennessee 37801 and our telephone number is (865) 379-5700. We
maintain a website at www.rubytuesday.com where general information about us is
available. No information available on or through our website is
incorporated into this prospectus or the registration statement of which it
forms a part.
RISK FACTORS
You
should carefully consider the following risks and all of the other information
contained or incorporated by reference in this prospectus, any prospectus
supplement and any free writing prospectus we may provide to you in connection
with the offering of these securities before deciding to invest in the
securities. If any of the following risks actually occurs, our
business, financial condition or results of operations would likely
suffer. In such case, the trading price of the securities could
decline due to any of these risks, and you may lose all or part of your
investment.
Risks
Related to Our Operations
Our business and operations are subject
to a num
ber of risks and
uncertainties.
The risk factors discuss
ed below are not
exhaustive.
We
operate in a continually changing business environment, and new risks may emerge
from time to time
.
We cannot predict such new risks, nor
can we assess the impact, if any, of such new risks on our business or the
extent to which any risk or
com
bination of risks may cause actual
results to differ materially from those expressed in any forward looking
statement.
The current economic situation could
adversely affect our business, results of operations, liquidity and capital
resources.
The U.S.
economy is currently undergoing a significant slowdown and volatility due to
uncertainties related to availability of credit, difficulties in the banking and
financial services sectors, softness in the housing market, severely diminished
market liquidity, falling consumer confidence and rising unemployment
rates. Our business is dependent to a significant extent on national,
regional and local economic conditions, particularly those that affect our
guests that frequently patronize our restaurants. In particular,
where our customers’ disposable income available for discretionary spending is
reduced (such as by job losses, credit constraints and higher housing, taxes,
energy, interest or other costs) or where the perceived wealth of customers has
decreased (because of circumstances such as lower residential real estate
values, increased foreclosure rates, increased tax rates or other economic
disruptions), our business could experience lower sales and customer traffic as
potential customers choose lower-cost alternatives or choose alternatives to
dining out. Any resulting decreases in customer traffic or average
value per transaction will negatively impact our financial performance, as
reduced revenues result in downward pressure on margins. These
factors could reduce our Company-owned restaurants’ gross sales and
profitability. These factors could also reduce gross sales of
franchised restaurants, resulting in lower royalty payments from franchisees,
and reduce profitability of franchise restaurants, potentially impacting the
ability of franchisees to make royalty payments as they become
due. Reduction in cash flows from either Company-owned or franchised
restaurants could have a material adverse effect on our liquidity and capital
resources.
We may fail to reac
h our sales
goals, which may negatively impact our
continued financial and operational success.
We establish sales
goals each fiscal year based on a
strategy
of maintaining and
growing same-restaurant sales and, where practical, new market
development
and further
penetration of existing markets
.
We believe the biggest risk to attaining
our growth goals is our ability to maintain or increase restaurant sales in
existing markets, which is dependent upon factors both within and outside our
control
.
Among other factors, these desired
increases are dependent upon consumer spending, the overall state of the
economy, our quality of operations, and the
effectiveness of our
marketing
.
In an effort to continue moving our
brand towards a high quality casual dining restaurant and away from the
traditional bar and grill category, we have changed our look and feel,
differentiating ourselves with a more contemporary and fresher look
.
During fiscal 2007 and 2008, we
com
pleted
the remodel of
substantially all of our Company-owned
restaurants
.
Many of our franchised restaurants have
also been remodeled
.
While we believe that the changes were
necessary for the long-term success
of our Company, they were
com
pleted
at a time when our guests were facing
economic pressures due to rising costs of gasoline, utilities and
food
.
As a result, we have lost a portion of
our bar and grill customer base without gaining significant market share from
our high quality casual dining
com
petitors
.
To turn around our declining sales we
must continue to provide high levels of quality in terms
of both food and service and a strong
value to our guests
.
We must also develop a
com
prehensive marketing
approach
that
over
com
es our disadvantage
of having a substantially lower
advertising budget
relative
to some of our
com
petitors
.
The risk of inappropriate
marketing
decisions could further negatively
impact our overall sales strategy, and thus continued
success.
As mentioned above, one factor integral
to our success is our ability to persuade our customers of the
com
pelling value in paying our prices for
higher-qua
lity food and
guest experience.
To deliver on our promise of “Simple,
Fresh, American Dining,” we offer
steaks, all fresh chicken,
crab,
and burgers, an
enhanced garden bar, and premium beverages
.
If we are not successful at educating
our customer about the value and quality of our products or our customers reject
our pricing approach, then we may have to change our marketing or pricing
strategies
,
which could also negatively impact our
growth goals.
Though believed to be a smaller risk
than not achieving growth through increased same-restaurant sales
because of our plan to engage in less
new restaurant development
,
there are risks associated with new restaurant openings, including, but not
limited to, finding sites that will support a profitable level of sales and
generate returns on investment that exceed our cost of capital, the acceptance
of our concept in new markets, and the recruitment of qualified operating
personnel
.
Although a significant portion of our
historical growth has been attributable to opening new restaurants, due to a
perceived saturation of the market with casual dining restaurants, we have
changed our strategy, such that we
do not plan to open any
Company-owned restaurants in
fiscal 2010. We
believe that our
domestic
franchisees likewise
expect
to
open
fewer restaurants in fiscal
2010
.
Once opened, we anticipate new
restaurants will take four to six months to reach planned operational
profitability due to
the
associated start-up costs.
We can provide no assurance that any
restaurant we
or our
franchisees
open will be
profitable or obtain operating results similar to those of our
or their
existing restaurants nor can we provide
assurance that our remodeling efforts will produce incremental sales sufficient
to offset the costs of the remodels.
We may be unable to remain
com
petitive because we are a leveraged
com
pany with restrictive financial
covenants, and any potential inability to meet financial covenants contained in
any of our indebtedness or guarantees could adversely affect our liquidity,
financial condition, or results of operations.
The amount of debt we carry is
significant
. On
March 3, 2009
, we had a
total of $
525.3
million in debt and capital
lease obligations and guaranteed a further $
52.1
million
in debt.
The indebtedness requires us to dedicate
a portion of our cash flows from operating activities to principal and interest
payments, which could prevent or limit our ability to proceed with operational
improvement initiatives.
The three
most significant loans we have are our revolving credit facility ($347.9 million
outstanding at March 3, 2009) (the “Credit Facility”) and our Series A and B
senior notes ($78.3 million and $56.5 million, respectively, outstanding at
March 3, 2009) (the “Private Placement”). The Series A and B senior
notes mature in fiscal 2010 and 2013, respectively, and while it is our current
intention and belief that we will repay the Series A senior notes from a
combination of operating cash flows and borrowings under the Credit Facility, we
cannot give assurance that our operating cash flows or our capacity under the
Credit Facility will be sufficient at the April 1, 2010 maturity date to do
so. Should an unforeseen event occur which restricts our ability to
repay the Series A senior notes, we also cannot give assurance that we will be
able to repay or refinance the Series A senior notes when due on favorable terms
or at all, which could have a material adverse effect on
us. Likewise, we cannot give assurance that we will be able to repay
or refinance the Series B senior notes or our other borrowings when due on
favorable terms or at all, which could have a material adverse effect on
us.
We also provide a guaranty on a $48
million credit facility, which assists franchise partnerships with working
capital needs (the “Franchise Facility”).
This guaranty can be partial
or full for a particular franchise partnership depending upon the financial
strength of the particular franchise partnership.
As of April 7, 2009, amounts
outstanding under the Franchise Facility relating to all but one of
the franchise partnerships
that were borrowers thereunder
were fully guaranteed by
us.
Under the
guaranty, if the Franchise Facility were to be unwound, we could be required to
repay the lenders for all then-outstanding borrowings, not just the amounts
which would be owed should individual franchise partnerships default.
Actions of the franchise partnerships
that are outside of our control, such as three or more franchise
partnerships defaulting under the Franchise Facility, could cause the
Franchise Facility to be unwound, which
would mean that loan
com
mitments under the Franchise Facility
can no longer be established, extended or renewed.
Additionally, if we fail to pay any
amount due under the Franchise Facility, breach any representations or
warranties, fail to meet any covenants, file for bankruptcy, fail to pay any
debt when due or if a judgment is awarded against us in excess of $10 million,
then the lenders under the Franchise Facility could terminate the loan
com
mitment and demand that we purchase all
outstanding loans and loan
com
mitments and assume the obligations.
Further,
in such situation, if
participating lenders
holding 51% of the outstanding
loans
under the Franchise
Facility request in writing, they can declare all loans due and payable, which
could have a material adverse effect on us.
At March 3, 2009, the total
amount outstanding under the Franchise Facility was $47.3
million.
On May 21, 2008, we entered into
amendments of the Credit Facility, the notes issued in the Private Placement,
and the Franchise Facility
.
As a result of these amendments, we
agreed to not make any further dividend payments or stock repurchases until we
achieve certain leverage thresholds for two consecutive fiscal
quarters
, provided that we
maintain these leverage thresholds after giving effect to any such dividend
payment or stock repurchase.
Additionally, the amendments limit the
amount of our capital expenditures, require prepayments of principal on the
Private Placement, and reduce our borrowing capacity on the Credit
Facility
. As of
June 2, 2009, our original $500.0 million capacity had been reduced to $446.5
million.
In
connection with the amendment to the notes issued in the Private Placement, we
also agreed to pay higher quarterly interest rates for the Series A and B senior
notes (currently 8.19% and 8.92%, respectively)
.
Our quarterly report
on Form 10-Q for the fiscal quarter ended March 3, 2009 and annual report on
Form 10-K for the year ended June 3, 2008, as incorporated by reference
herein
, contain
further information on the terms of
these amendments.
While we were successful in negotiating
amendments to the Credit Facility, the Private Placement, and the Franchise
Facility, if we were to violate any of our covenants in the future and either
agreements cannot be reached with our lenders or agreements are reached but we
do not meet the revised covenants, our lenders could exercise their rights under
the indebtedness and guaranty
, including requiring immediate
repayment of all borrowings, which could have a material adverse effect on
us
.
Moreover, if any agreements
were reached with our lenders, they might require us to pay higher interest
rates.
We may not be successful at operating
profitable restaurants.
The success of our brand is dependent
upon operating profitable restaurants
.
The profitability of our restaurants is
dependent on several factors, including the following:
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the hiring, training, and
retention of excellent restaurant managers and
staff;
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the ability to timely and
effectively meet customer demands and mai
ntain our customer
base;
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·
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the ability to manage costs and
prudently
allocate
capital resources;
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·
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the ability to create and
implement an effective
marketing/advertising
strategy;
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·
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the ability to leverage sales
following the
com
pletion of
our re-imaging initiative;
and
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·
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the ability to provide
menu items with
strong customer preference at attractive prices
.
|
The profitability of our restaurants
also depends on our ability to adapt the brand in such a way that consumers see
us as fresh and relevant
.
In addition, the results of our
currently high performing restaurants may not be indicative of their long-term
performance, as factors affecting their success may change
.
Among others, one potential impact of
declining profitability of our restaurants is increased asset impairment
charges
.
This could be significant as property
and equipment represent
ed
86% of our total assets at
March 3, 2009
.
The inability of our franchises to
operate profitable restaurants may negatively impact our continued financial
success.
We operate franchise programs with
domestic franchise partnerships and traditional domestic and international
franchisees
.
In addition to the in
com
e (or offsetting the losses) we record
under the equity method of accounting
from our investment in certain of these
franchises, we also collect royalties, marketing, and purchasing fees, and in
some cases support service fees, as well as interest and other fees from the
franchise
e
s
.
Further, as part of the franchise
partnership program, we serve as guarantor for three credit facilities, two of
which are no longer active
.
The ability of
these franchise groups
to continually generate profits
impact
s our overall
profitability and our brand image
.
Growth within the existing franchise
base is dependent upon many of the same factors that apply to our Company-owned
restaurants, and sometimes the challenges of opening profitable restaurants
prove to be more difficult for our franchisees
.
For example, franchisees may not have
access to the financial or management resources that they need to open or
continue operating the restaurants contemplated by their franchise agreements
with us
.
In addition, our continued growth is
also partially dependent upon our ability to find and retain qualified
franchisees in new markets, which may include markets in which the Ruby Tuesday
brand may be less well known
.
Furthermore, the loss of any of our
franchisees due to financial concerns and/or operational inefficiencies could
impact our profitability and brand.
Our franchisees are obligated in many
ways to operate their restaurants according to the specific guidelines set forth
by us
.
We provide training opportunities to our
franchise operators to fully integrate them into our operating
strategy
.
However, since we do not have control
over these restaurants, we cannot give assurance that there will not be
differences in product quality or that there will be adherence to all Company
guidelines at these franchise restaurants
.
In order to mitigate these risks, we do
require that our franchisees focus on
the quality of their
operations
and
we periodically visit their restaurants
to ensure
com
pliance with Company
standards.
Concurrent with these risks, should the
financial stability of our franchisees deteriorate and we opt for
brand-protective
or other reasons to increase our level
of support, we could be required to consolidate certain of them under the
provisions of Financial Accounting Standards Board
(“FASB”)
Interpretation No
.
46(R),
“Consolidation of Variable Interest
Entities, an interpretation of ARB No
.
51” (“FIN 46R”)
, or, beginning with fiscal 2011, under
the provisions of FASB Statement No. 167, “Amendments to FASB Interpretation No.
46(R).”
We have
concluded based on our most recent analyses prepared using financial information
obtained from the franchise entities that we are not required as of
March 3, 2009
to consolidate any of them under the
provisions of FIN 46R
. However, as the
U.S.
economy continues to falter, we
anticipate that we will receive increased requests for financial support from
certain of our franchisees, particularly the franchise
partnerships. Should we opt to provide that support, the likelihood
we would then be required to consolidate the entities making the requests (most
likely those in the weakest financial condition) increases and
our financial performance
likely w
ould be negatively impacted.
Alternatively, should we opt to not
provide requested support, our franchisees’ financial struggles could accelerate
and possibly, in a worst case, lead certain of them to bankruptcy, at which
point we would likely be required to make payments according to the terms of any
loans for which we had previously provided a guaranty in addition to payments on
any leases subleased to franchisees for which we remain primarily
liable.
We may be required to recognize
additional
closure and
impairment
charges.
We assess our goodwill, trademarks and
other long-lived assets as and when required by generally accepted accounting
principles in the
United
States
to determine whether
they are impaired
.
Based upon our reviews in fiscal 2008,
2007, and 2006 we recorded impairments of $4.3 million, $0.6 million, and $1.5
million, respectively
. In addition, as part of a
com
prehensive review of our restaurants and
other assets, we recorded an additional charge of $37.2 million for impairment,
dead site write-offs, closed restaurant lease reserves, and other adjustments in
the second quarter of fiscal 2009. This charge was largely attributed
to our decision to close 43 restaurants in the third quarter of fiscal 2009 and
another 30 over the next several years, and not to develop and sell
approximately 40 sites we had previously purchased.
The majority of these charges were for
restaurant impairments
.
Our normal timing for the annual testing
of goodwill is as of the end of our third fiscal quarter. Given our lowered
stock price and declines in same-restaurant sales, we have recently been testing
for impairment on a quarterly basis. The shortfall of stock price versus our
carrying value in the second quarter of fiscal 2009 exceeded that of previous
quarters. This, coupled with our continued decline in same-restaurant sales,
overall economic conditions and the challenging environment for the restaurant
industry, led us to conclude that our goodwill was impaired. As a result, we
recorded a charge of $19.0 million during the second quarter of fiscal 2009,
representing the full value of the goodwill.
Additionally, during the
third quarter of fiscal 2009, we implemented a plan to close
43 restaurants and announced our
intention to close an additional 30 restaurants over the next several
years. In addition to the goodwill impairment charge previously
mentioned, we recorded an additional $40.1 million in restaurant and other
impairments during the first three quarters of fiscal 2009,
the majority of which relates to the 73
restaurants identified for closure during the second and third
quarter
.
If market conditions at either the
restaurant or system-wide
levels
deteriorate, or if operating results
decline unexpectedly, we may be required to record additional impairment
charges
.
Additional impairment charges would
reduce our reported earnings for the periods in which they are
recorded.
Largely related to our third fiscal
quarter 2009 restaurant closings, we incurred charges of $9.5 million for the
first three quarters of fiscal 2009 to reserve against future lease
payments. We may incur additional charges or receive a credit
depending on the out
com
e of negotiations with our
landlords.
Economic, demographic and other changes,
seasonal fluctuations, natural disasters,
pandemic illness,
and terrorism could adversely impact
guest traffic and profitability in our restaurants.
Our business can be negatively impacted
by many factors, including those which affect the restaurant only at the local
level as well as others which attract national or international
attention
.
Risks that could cause us to suffer
losses include, but are not necessarily limited to, the
following:
|
·
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economic factors (including
economic slowdowns or other inflation-related
issues);
|
|
·
|
demographic changes, particularly
with regard to dining and discretionary spending habits, in the areas in
whi
ch our restaurants
are located;
|
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·
|
c
hanges in consumer
preferences;
|
|
·
|
changes in fe
deral or state in
com
e tax
laws;
|
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·
|
seasonal fluctuations due to the
days of the week on which holidays occur, whic
h may impact spending
patterns;
|
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·
|
natural disasters such as
hurricanes, to
rn
ado
e
s, bliz
zards, or other severe
weather;
|
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·
|
concerns and/or unfavorable
publicity over health issues
such as the impact of the H1N1
influenza A virus
,
food qua
lity or
restaurant cleanliness;
|
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·
|
effects of war or terrorist
activities and any governmental responses thereto;
and
|
|
·
|
increased insurance and/or
self-insurance costs.
|
Each of the above items could
potentially negatively impact our guest traffic and/or our
profitability.
The potential for increased
com
modity, energy, and other costs may
adversely affect our results of operations.
We continually purchase basic
com
modities such as beef, chicken, cheese
and other items for use in many of the products we sell
.
Although we attempt to maintain control
of
com
modity costs by engaging in volume
com
mitments with third parties for many of
our food-related supplies, we cannot assure that the costs of these
com
modities will not fluctuate, as we often
have no control over such items
.
In addition, we rely on third party
distribution
com
panies to frequently deliver perishable
food and supplies to our restaurants
.
We cannot make assurances regarding the
continued supply of our inventory since we do not have control over the
businesses of our suppliers
.
Should our inventories lack in supply,
our business could suffer, as we may be unable to meet customer
demands
.
These disruptions may also force us to
purchase food supplies from suppliers at higher costs
.
The result of this is that our operating
costs may increase without the desire and/or ability to pass the price increases
to our customers.
We must purchase energy-related products
such as electricity, oil and natural gas for use in each of our
restaurants
.
Our suppliers must purchase gasoline in
order to transport food and supplies to us
.
Our guests purchase energy to heat and
cool their homes and fuel their automobiles
.
When energy prices, such as those for
gasoline, heating and cooling increase, we incur greater costs to operate our
restaurants
.
Likewise our guests have lower
disposable in
com
e and thus may reduce the frequency in
which they dine out and/or feel
com
pelled to choose more inexpensive
restaurants when eating outside the home.
The costs of these energy-related items
will fluctuate due to factors that may not be predictable, such as the economy,
current political/international relations and weather conditions
.
Because we cannot control these types of
factors, there is a risk that prices of energy/utility items will increase
beyond our current projections and adversely affect our
operations.
We face continually increasing
com
petition in the res
taurant industry for
guests, staff,
locations,
supplies, and new
products.
Our business is subject to intense
com
petition with respect to prices,
services, locations, qualified management personnel and quality of
food
.
We
com
pete with other food service operations,
with locally-owned restaurants, and with other national and regional restaurant
chains that offer the same or similar types of services and products
.
Some of our
com
petitors may be better established in
the markets where our restaurants are or may be located
.
Changes in consumer tastes; national,
regional, or local economic conditions; demographic trends; traffic patterns and
the types, numbers and locations of
com
peting restaurants often affect the
restaurant business
.
There is active
com
petition for management personnel and
for attractive
com
mercial real estate sites suitable for
restaurants
.
In addition, factors such as inflation,
increased food, labor, equipment, fixture and benefit costs, and difficulty in
attracting qualified management and hourly employees may adversely affect the
restaurant industry in general and our restaurants in
particular.
Food safety and food-borne illness
concerns could adversely affect consumer confidence in our
restaurants.
We face food safety issues that are
com
mon to the food industry
.
We work to provide a clean, safe
environment for both our guests and employees
.
Otherwise, we risk losing guests and/or
employees due to unfavorable publicity and/or a lack of confidence in our
ability to provide a safe dining and/or work experience.
Food-borne illnesses, such as
E
.
coli, hepatitis
A, trichinosis, or
salmonella
, are also a
concern for our industry
.
We can and do attempt to purchase
supplies from reputable suppliers/distributors and have certain procedures in
place to test for safety and quality standards, but we can make no assurances
regarding whether these supplies may contain contaminated goods
.
In addition, we cannot ensure the
continued health of each of our employees
.
We provide health-related training for
each of our staff and strive to keep ill employees away from food
items
.
However, we may not be able to detect
when our employees are sick until the time that their symptoms occur, which may
be too late if they have prepared/served food for our guests
.
The occurrence of an outbreak of a
food-borne illness, whether at one of our restaurants or one of our
com
petitors, could result in temporary
store closings or other negative publicity that could adversely affect our sales
and profitability
.
Litigation could negatively impact our
results of operations as well as our future business.
We are subject to litigation and other
customer
com
plaints concerning our food safety,
service, and/or other operational factors
.
Guests may file formal litigation
com
plaints that we are required to defend,
whether or not we believe them to be true
.
Substantial,
com
plex or extended litigation could have
an adverse effect on our results of operations if it develops into a costly
situation and distracts our management
.
Employees may also, from time to time,
subject us to litigation regarding injury, discrimination and other employment
issues
.
Suppliers, landlords and distributors,
particularly those with which we currently maintain purchase
com
mitments/contracts, could also
potentially allege non-
com
pliance with their contracts should they
consider our actions to be contrary to our
com
mitments
.
Additionally, we are subject to
the
risk of litigation by
our stock
holders as a
result of factors including, but not limited to, matters of executive
com
pensation or performance of our stock
price.
The cost of
com
pliance with various government
regulations may negatively affect our business.
We are subject to various forms of
governmental regulations
.
We are required to follow various
international, federal, state, and local laws
com
mon to the food industry, including
regulations relating to food and workplace safety, sanitation, the sale of
alcoholic beverages, environmental issues, minimum wage, overtime, increasing
com
plexity in immigration laws and
regulations, and other labor issues
.
The federal minimum wage increased to
$5.85 in July 2007
,
increased again to $6.55 in July
2008
and will once more
increase to $7.25 in July 2009.
Further changes in these types of laws,
including additional state or federal government-imposed increases in minimum
wages, overtime pay, paid leaves of absence and mandated health benefits, or a
reduction in the number of states that allow tips to be credited toward minimum
wage requirements, could harm our operating results
.
Also, failure to obtain or maintain the
necessary licenses and permits needed to operate our restaurants could result in
an inability to open new restaurants or force us to close existing
restaurants.
We are also subject to regulation by the
Federal Trade Commission and to state and foreign laws that govern the offer,
sale and termination of franchises and the refusal to renew
franchises
.
The failure to
com
ply with these regulations in any
jurisdiction or to obtain required approvals could result in a ban or temporary
suspension on future franchise sales or fines or require us to rescind offers to
franchisees, any of which could adversely affect our business and operating
costs
.
Further, any future legislation
regulating franchise laws and relationships may negatively affect our
operations.
Approximately 10% of our revenue is
attributable to the sale of alcoholic beverages
.
We are required to
com
ply with the alcohol licensing
requirements of the federal government, states and municipalities where our
restaurants are located
.
Alcoholic beverage control regulations
require applications to state authorities and, in certain locations, county and
municipal authorities for a license and permit to sell alcoholic beverages on
the premises and to provide service for extended hours and on
Sundays
.
Typically, the licenses are renewed
annually and may be revoked or suspended for cause at any time
.
Alcoholic beverage control regulations
relate to numerous aspects of the daily operations of the restaurants, including
minimum age of guests and employees, hours of operation, advertising, wholesale
purchasing, inventory control and handling, storage and dispensing of alcoholic
beverages
.
If we fail to
com
ply with federal, state or local
regulations, our licenses may be revoked and we may be forced to terminate the
sale of alcoholic beverages at one or more of our
restaurants.
In certain states we are subject to
“dram shop” statutes, which generally allow a person injured by an intoxicated
person the right to recover damages from an establishment that wrongfully served
alcoholic beverages to the intoxicated person
.
Some dram shop litigation against
restaurant
com
panies has resulted in significant
judgments, including punitive damages
.
We carry liquor liability coverage as
part of our existing
com
prehensive general liability insurance,
but we cannot guarantee that this insurance will be adequate in the event we are
found liable in a dram shop case.
As a publicly traded corporation, we are
subject to various rules a
nd regulations as mandated by
the SEC
and the New York Stock
Exchange.
Failure to timely
com
ply with these guidelines could result
in penalties and/or adverse reactions by our shareholders.
We are dependent on key
personnel.
Our future success is highly dependent
upon our ability to attract and retain certain key executive and other
employees
.
These personnel serve to maintain a
corporate vision for our Company, execute our business strategy, and maintain
consistency in the operating standards of our restaurants
.
The loss of our key personnel or a
significant shortage of high quality restaurant team members could potentially
impact our future growth decisions and our future
profitability.
While we maintain an employment
agreement with Samuel E
.
Beall, III, our chief
executive officer and founder, the term of this employment agreement ends on
July 18, 2010 and may not provide sufficient incentives for him to continue
employment with Ruby Tuesday
.
While we are constantly focused on
succession plans at all levels, in the event his employment terminates or he
be
com
es incapacitated, we can make no
assurance regarding the impact his loss could have on our
business and financial
results.
Changes in financial accounting
standards and subjective assumptions, estimates and judgments by management
related to
com
plex accounting matters could
significantly affect our financial results.
Changes in financial accounting
standards can have a significant effect on our reported results and may affect
our reporting of transactions
com
pleted before the new rules are required
to be implemented
.
Many existing accounting standards
require management to make subjective assumptions, such as those required for
stock
com
pensation, tax matters, consolidation
accounting, franchise acquisitions, litigation, and asset impairment
calculations
.
Changes in accounting standards or
changes in underlying assumptions, estimates and judgments by our management
could significantly change our reported or expected financial
performance.
We could be adversely impacted if our
information technology and
com
puter systems do not perform properly or
if we fail to protect customers
’
credit card data.
We rely
heavily on information technology to conduct our business, and any material
failure, interruption of service, or compromised data security could adversely
affect our operations. While we expend significant resources to
ensure that our information technology operates securely and effectively, any
security breaches could result in disruptions to operations or unauthorized
disclosure of confidential information. Additionally, if our
customers’ credit card information or our employees’ personal data are
compromised our operations could be adversely affected, our reputation could be
harmed, and we could be subjected to litigation or the imposition of
penalties.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS AND MARKET AND
FRANCHISEE DATA
This
prospectus and the documents incorporated by reference in this prospectus
include, and any prospectus supplement, and free writing prospectuses relating
to the offering of these securities may include, forward-looking statements
within the meaning of the Private Securities Litigation Reform Act of
1995. We caution the reader that a number of important factors and
uncertainties could, individually or in the aggregate, cause our actual results
to differ materially from those included in the forward-looking statements (such
statements include, but are not limited to, statements relating to cost savings
that we estimate may result from any programs we implement, our estimates of
future capital spending and free cash flow, our targets for annual growth in
same-restaurant sales and average annual sales per restaurant, and our strategy
to obtain the equivalent of an investment-grade bond rating), including, without
limitation, the following:
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·
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general
economic conditions;
|
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·
|
changes
in promotional, couponing and advertising
strategies;
|
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·
|
guests’
acceptance of changes in menu
items;
|
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guests’
acceptance of our development prototypes and remodeled
restaurants;
|
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|
changes
in our guests’ disposable income;
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|
consumer
spending trends and habits;
|
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·
|
increased
competition in the restaurant
market;
|
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|
weather
conditions in the regions in which Company-owned and franchised
restaurants are operated;
|
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|
laws
and regulations affecting labor and employee benefit costs, including
further potential increases in state and federally mandated minimum
wages;
|
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·
|
costs
and availability of food and beverage
inventory;
|
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·
|
our
ability to attract qualified managers, franchisees and team
members;
|
|
·
|
changes
in the availability and cost of
capital;
|
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·
|
impact
of adoption of new accounting
standards;
|
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·
|
impact
of food-borne illnesses resulting from an outbreak at either Ruby Tuesday
or other restaurant concepts;
|
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·
|
effects
of actual or threatened future terrorist attacks in the United States;
and
|
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|
significant
fluctuations in energy prices.
|
You
should also specifically consider the numerous risks outlined under “Risk
Factors.”
Although
we believe the expectations reflected in the forward-looking statements are
reasonable, we cannot guarantee future results, level of activity, performance
or achievements. Moreover, neither we nor any other person assumes
responsibility for the accuracy and completeness of any of these forward-looking
statements. We are under no duty to update any of these
forward-looking statements after the date of this prospectus to conform our
prior statements to actual results or revised expectations.
Unless
otherwise expressly stated or the context otherwise requires, any industry,
market and demographic data appearing in this prospectus, any documents
incorporated by reference in this prospectus, or any related prospectus
supplement or free writing prospectus are derived principally from publicly
available information, industry publications, data from market research firms
and other third-party sources, as well as data from our internal research and
estimates made by our management. Our internal research and
management estimates have not been verified by any independent source, and we
have not independently verified any third-party
information. In addition, the preparation of industry, market and
demographic data, as well as our internal research and management estimates, may
be subject to assumptions, estimates, and other uncertainties and projections
and estimates of our future performance or future industry, market or
demographic conditions are necessarily subject to a high degree of uncertainty
and risk due to a variety of factors, including those described under “Risk
Factors.” As a result, you should not place undue reliance upon any
of this data.
In
addition, the documents incorporated by reference in this prospectus include
information about sales at franchised restaurants and related information that
is not derived from our own financial records. Instead, this
information is provided to us by our franchise partnerships and traditional
franchisees, and we depend upon them to accurately prepare and report this
data. However, because the preparation of this data is outside of our
control and we have not independently verified this data, you should not place
undue reliance on this data.
USE OF PROCEEDS
We intend
to use the net proceeds from the sale of the securities to reduce our debt and
for other general corporate purposes.
RATIO OF EARNINGS TO FIXED CHARGES
The
following table sets forth our ratio of earnings to fixed charges for the
periods indicated. No shares of preferred stock were outstanding during the
periods indicated and we did not pay preferred stock dividends during these
periods. Consequently, the ratio of earnings to fixed charges and preferred
stock dividends is the same as the ratio of earnings to fixed charges for the
periods indicated.
|
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March 3,
|
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June 3,
|
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June 5,
|
|
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June 6,
|
|
|
May 31,
|
|
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June 1,
|
2009
|
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2008
|
|
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2007
|
|
|
2006
|
|
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2005
|
|
|
2004
|
|
–*
|
|
|
|
1.53
|
|
|
|
4.50
|
|
|
|
5.92
|
|
|
|
8.10
|
|
|
|
10.08
|
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We are presenting the ratio
s
above pursuant to the requirements set
forth in Item 503 of Regulation S-K
under the Securities Act of
1933
. The earnings
and fixed charges in the above ratio
s
are calculated using the definitions
set forth by Regulation S-K
under the Securities Act of 1933
. These definitions differ from
those that determine our covenants in our agreements with our
lenders.
* There
were insufficient earnings available to cover fixed charges for the thirty-nine
weeks ended March 3, 2009. As a result, the ratio of earnings to fixed charges
was negative for this period. The amount by which earnings were insufficient to
cover fixed charges for the thirty-nine weeks ended March 3, 2009 was $63.7
million.
DESCRIPTION OF COMMON STOCK
The
following descriptions are summaries of some of the terms of our Articles of
Incorporation and Bylaws and the Georgia Business Corporation Code (the “Code”).
Reference is made to the more detailed provisions of, and the descriptions
are qualified in their entirety by reference to, the Articles of Incorporation
and Bylaws, copies of which are filed with the SEC as exhibits to the
registration statement of which this prospectus is a part and which may be
obtained as described under “Where You Can Find More Information,” and
applicable law.
General
Matters
Our Articles of Incorporation provide
that we are authorized to issue 100,000,000 shares of
com
mon stock, par value $0.01 per share,
and 250,000 shares of preferred stock, par value $0.01 per
share.
As of June 17, 2009, we had 52,805,712
shares of
com
mon stock outstanding, which were held
of record by 3,748 stockholders.
Common
Stock
Shares of our
com
mon stock have the following rights,
preferences, and privileges:
|
·
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|
Voting
rights.
The holders of common stock are entitled to one
vote per share on all matters to be voted upon by the holders of common
stock. Our Articles of Incorporation and Bylaws do not provide
for cumulative voting in the election of directors.
|
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·
|
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Dividends.
Subject to preferences that may be
applicable to any series of outstanding preferred stock, the holders of
com
mon stock are entitled to receive
ratably such dividends, if any, as may be declared from time to time by
our Board of Directors in its discretion out of funds legally available
therefor.
|
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·
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Liquidation.
In
the event of liquidation, dissolution or winding up of Ruby Tuesday, Inc.,
the holders of common stock are entitled to share ratably in all assets
remaining after payment of liabilities, subject to prior liquidation and
distribution rights of any series of preferred stock then
outstanding. Our Articles of Incorporation provide that neither
the merger or consolidation of Ruby Tuesday, Inc., nor the sale, lease or
conveyance of all or a part of its assets, shall be deemed to be a
liquidation, dissolution or winding up of Ruby Tuesday,
Inc.
|
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·
|
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Rights and
preferences.
The common stock has no preemptive or
conversion rights or other subscription rights. There are no
redemption or sinking fund provisions applicable to the common
stock.
|
All
shares of common stock offered by this prospectus will be, upon issuance,
validly issued, fully paid and non-assessable.
Listing
Our
common stock is listed on the New York Stock Exchange under the symbol
“RT.”
Anti-Takeover Effects of Certain
Provisions of Our Articles of Incorporation, Bylaws and the
Code.
Our Articles of Incorporation and Bylaws
contain provisions that are intended to enhance the likelihood of continuity and
stability in the
com
position of our Board of Directors and
which may have the effect of delaying, deferring, or preventing a future
takeover or change in control of our Company unless the takeover or change in
control is approved by our Board of Directors. These provisions are
designed to reduce our vulnerability to an unsolicited acquisition proposal. The
provisions also are intended to discourage certain tactics that may be used in
proxy fights.
The Code
also provides additional provisions
discussed
below
, which if
adopted b
y our
Board of Directors, would
further
inhibit certain unsolicited acquisition proposals.
However, such provisions could have the
effect of discouraging others from making tender offers for our shares and, as a
consequence, they also may inhibit
increases in the market price of the
com
mon stock that could result from actual
or rumored takeover attempts. Such provisions also may have the effect of
preventing changes in our management or delaying or preventing a transaction
that might benefit our stockholders. These provisions include the
following:
Staggered Board of
Directors.
Our Articles of Incorporation provide that our
Board of Directors shall consist of not less than three and not more than twelve
members, with the exact number of directors fixed from time to time by
resolution of a majority of our Board of Directors or by the affirmative vote of
at least 80% of all outstanding shares of capital stock entitled to vote in the
election of directors, voting together as a single class.
Our Articles of Incorporation provide
for a staggered Board of Directors, divided into three classes, with each class
consisting as nearly as possible of one-third of the total number of directors,
and with our stockholders electing one class each year for a three-year term.
Between stockholders’ meetings, only our Board of Directors is permitted to
appoint new directors to fill vacancies or newly created directorships so that
no more than the number of directors in any given class could be replaced each
year and it would take three successive annual meetings to replace all
directors.
Stockholder Action
Through Written Consent.
Our Bylaws only provide for stockholder
action by written consent in lieu of a meeting if all stockholders entitled to
vote on such action sign such consent.
Advance Notice
Procedures for Stockholder Proposals.
Our Bylaws establish an advance notice
procedure for stockholder proposals to be brought before an annual or special
meeting of our stockholders. Stockholders at our annual meeting and special
meetings may only consider proposals brought before the meeting by or at the
direction of our Board of Directors or a stockholder who was a stockholder of
record on the record date for the meeting, who is entitled to vote at the
meeting and who has given to our secretary timely written notice, in proper
form, of the stockholder’s intention to bring that business before the
meeting.
Nominations to Board
of Directors.
Our Articles of Incorporation provide that nominations for
the election of directors may be made by our Board of Directors or any committee
appointed by our Board of Directors or by any stockholder entitled to vote
generally in the election of directors.
Our Articles of
Incorporation establish an advance notice procedure for stockholder nominations
to our Board of Directors. A stockholder may only make a nomination to the Board
of Directors if he or she
com
plies with the advance notice and other
procedural requirements of the Articles of Incorporation and is entitled to vote
on such nomination at the meeting.
Removal of
Directors; Board of Directors Vacancies.
Our Articles of Incorporation provide
that members of our Board of Directors may only be removed for cause and then
only with a vote of at least 80% of the outstanding shares entitled to vote at
an election of directors at a meeting of stockholders called expressly for that
purpose. Our Bylaws further provide that, between stockholder meetings, only our
Board of Directors may fill vacant directorships caused by reason of death,
incapacity, resignation, removal, increase in the authorized number
of directors or otherwise. These provisions would prevent a stockholder from
gaining control of our Board of Directors by removing incumbent directors and
filling the resulting vacancies with such stockholder’s own
nominees.
Authorized But
Unissued Stock.
The
authorized but unissued shares of
com
mon stock and preferred stock are
available for future issuance without stockholder approval. These additional
shares may be used for a variety of corporate purposes, including future public
offerings to raise additional capital, corporate acquisitions, and employee
benefit plans. The existence of authorized but unissued and unreserved shares of
com
mon and preferred stock may enable our
Board of Directors to issue shares to persons friendly to current management,
which could render more difficult or discourage any attempt to obtain control of
us by means of a proxy contest, tender offer, merger or otherwise, and thereby
protect the continuity of our management.
Amendment to
Bylaws
. Our Articles of Incorporation provide that the Board
of Directors has the right, without obtaining the approval of the stockholders,
to make, alter, amend, change, add to, or repeal the Bylaws and has the right to
establish the rights, powers, duties, rules and procedures that from time to
time shall govern the Board of Directors and each of its members, including
without limitation, the vote required for any action and the election of
officers by the Board of Directors. In addition, our Articles of Incorporation
prohibit the stockholders from adopting any Bylaw that would impair or impede
the implementation of the provision described in the preceding
sentence.
Amendment to Articles of
Incorporation.
Our Articles of Incorporation provide that any
amendment to Article VII of our Articles of Incorporation, which deals with the
rights, powers and duties of our Board of Directors, will require the
affirmative vote of at least 80% of the votes entitled to be cast by holders of
all then outstanding shares of capital stock, voting together as a single class;
provided, however, that such 80% vote shall not be required in the event any
such amendment is recommended by not less than 80% of the members of our Board
of Directors.
Business
Combinations.
Our Articles of Incorporation provide that we
may enter into certain business combinations with an “interested stockholder”
(as those terms are defined in our Articles of Incorporation) only upon the
affirmative vote of holders of not less than 80% of our voting stock (as defined
in our Articles of Incorporation) voting together as a single
class. Such affirmative vote is not required if:
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·
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the
business combination has been approved by 80% of the Company’s continuing
directors, either prior or subsequent to the date the interested
stockholder acquired beneficial ownership of the voting stock that caused
the interested stockholder to become an interested stockholder;
or
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·
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certain
price and procedural conditions are met, as further described in our
Articles of Incorporation.
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For
purposes of the above, an interested stockholder generally is any person who
beneficially owns at least 10% of the voting stock of the Company.
Georgia “Fair Price”
Statute.
Sections 14-2-1110 through 14-2-1113 of the Code (the
“Fair Price Statute”) generally restrict a company from entering into certain
Business Combinations (as defined in the Code) with an interested shareholder,
unless:
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·
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the
transaction is unanimously approved by the continuing directors who must
constitute at least three members of the board of directors at the time of
such approval; or
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·
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the
transaction is recommended by at least two-thirds of the continuing
directors and approved by a majority of the shareholders excluding the
interested shareholder.
|
Georgia “Business Combination”
Statute.
Sections 14-2-1131 through 14-2-1133 of
the Code (the “Business Combination Statute”) generally restrict a company from
entering into certain business combinations (as defined in the Code) with an
interested shareholder for a period of five years after the date on which such
shareholder became an interested shareholder unless:
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·
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the
transaction is approved by the board of directors of the company prior to
the date the person became an interested
shareholder;
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·
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the
interested shareholder acquires at least 90% of the company's
voting stock in the same transaction (calculated pursuant to
Code Section 14-2-1132) in which such person became an interested
shareholder; or
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·
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subsequent
to becoming an interested shareholder, the shareholder acquires at least
90% (calculated pursuant to Code Section 14-2-1132) of the company's
voting stock and the business combination is approved by the holders of a
majority of the voting stock entitled to vote on the matter (excluding the
stock held by the interested shareholder and certain other persons
pursuant to Code Section
14-2-1132).
|
The Code
provides that the restrictions set forth in the Fair Price Statute and the
Business Combination Statute will not apply unless the bylaws of the corporation
specifically provide that these provisions of the Code are applicable to the
corporation (and in certain other situations). We have not elected to be covered
by such statutes, but we could do so by action of our Board of Directors,
without a vote by our shareholders except as may be prohibited by
law, at any time.
Transfer Agent and
Registrar
The
transfer agent and registrar for our common stock is Bank of New
York/Mellon.
DESCRIPTION OF PREFERRED STOCK
The
following descriptions are summaries of some of the terms of our Articles of
Incorporation and Bylaws. Reference is made to the more detailed
provisions of, and the descriptions are qualified in their entirety by reference
to, the Articles of Incorporation and Bylaws, copies of which are filed with the
SEC as exhibits to the registration statement of which this prospectus is a
part, and which may be obtained as described under “Where You Can Find More
Information” and applicable law.
When we
offer to sell a particular series of preferred stock, we will describe the
specific terms of the series in a supplement to this prospectus. The
preferred stock will be issued under a certificate of designations relating to
such series of preferred stock and is also subject to our Articles of
Incorporation.
Our Board
of Directors may issue authorized shares of preferred stock in one or more
series without further shareholder action, unless shareholder action is required
by applicable law or by the rules of a stock exchange or quotation system on
which any series of our stock may be listed or quoted. Our Board of
Directors is authorized to determine the number of shares of preferred stock in
each such series and to determine the rights of such series, which may include
voting rights, dividend rights, rights in the event of our liquidation,
dissolution or winding up and other terms that may dilute or adversely affect
the voting, economic and other rights of our common stock.
All
shares of preferred stock offered will, upon issuance, be validly
issued, fully paid and non-assessable. Any shares of
preferred stock that are issued will have priority over the common stock with
respect to dividend or liquidation rights or both.
Our Board
of Directors could create and issue a series of preferred stock with rights,
privileges or restrictions which effectively discriminates against an existing
or prospective holder of preferred stock as a result of the holder beneficially
owning or commencing a tender offer for a substantial amount of common stock, or
could issue preferred stock in an effort to block or hinder a tender offer or
other acquisition attempt. One of the effects of authorized but
unissued and unreserved shares of preferred stock may be to make it more
difficult or discourage an attempt by a potential acquirer to obtain control of
our company by means of a merger, tender offer, proxy contest or
otherwise. This protects the continuity of our management. The
issuance of these shares of preferred stock may defer or prevent a change in
control of our company.
The
transfer agent for each series of preferred stock will be described in the
prospectus supplement.
DESCRIPTION OF DEBT SECURITIES
This
prospectus describes certain general terms and provisions of the debt
securities. We will issue any debt securities that will be senior debt under the
senior debt indenture between us and a designated trustee, as senior debt
trustee. We will issue any debt securities that will be subordinated debt under
the subordinated debt indenture between us and a designated trustee, as
subordinated debt trustee. This prospectus refers to the senior debt indenture
and the subordinated debt indenture individually as the indenture and
collectively as the indentures. This prospectus refers to the senior debt
trustee and the subordinated debt trustee individually as the trustee and
collectively as the trustees. When we offer to sell a particular series of debt
securities, we will describe the specific terms for the debt securities in a
supplement to this prospectus. The prospectus supplement will also indicate
whether the general terms and provisions described in this prospectus apply to a
particular series of debt securities. If any of the terms of a series
of debt securities or an indenture that are described in a prospectus supplement
are inconsistent with any of the terms of the debt securities or that indenture
as described in this section, then the description of those terms in that
prospectus supplement will supersede and replace any different or inconsistent
description in this prospectus.
We have
summarized certain terms and provisions of the indentures. The summary is not
complete and is qualified in its entirety by reference to the
indentures, which are filed as exhibits to the registration statement of
which this prospectus forms a part
.
The
indentures have been incorporated by reference as an exhibit to the registration
statement for these securities that we have filed with the SEC. You should read
the indentures for the provisions which may be important to you. The indentures
are subject to and governed by the Trust Indenture Act of 1939, as amended. The
indentures are substantially identical, except for the provisions relating to
subordination. See “—Subordinated Debt.”
As used
in this section, the terms “Company,” “we,” “us” and other similar terms mean
Ruby Tuesday, Inc. excluding, unless otherwise expressly stated or the context
otherwise requires, its subsidiaries.
Unless
otherwise stated in the applicable prospectus supplement, neither indenture will
limit the amount of debt securities that we may issue. We may issue debt
securities up to an aggregate principal amount as we may authorize from time to
time. The prospectus supplement will describe the terms of any debt securities
being offered, including:
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·
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classification
as senior or subordinated debt
securities;
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·
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if
the debt securities are subordinated, the aggregate amount of outstanding
indebtedness, as of a recent date, that is senior to the subordinated
securities;
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·
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the
designation and aggregate principal
amount;
|
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·
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the
interest rate, if any, or the method for calculating the interest
rate;
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·
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the
interest payment dates and the record dates for the interest
payments;
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·
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any
mandatory or optional redemption terms or prepayment, conversion, sinking
fund or exchangeability or convertibility
provisions;
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·
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the
place where we will pay principal and
interest;
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·
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if
other than denominations of $1,000 or multiples of $1,000, the
denominations the debt securities will be issued
in;
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·
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whether
the debt securities will be issued in the form of global securities or
certificates;
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·
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additional
provisions, if any, relating to the defeasance of the debt
securities;
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·
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the
currency or currencies, if other than the currency of the United States,
in which principal and interest will be
paid;
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·
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any
United States federal income tax
consequences;
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·
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the
dates on which premium, if any, will be
paid;
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·
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our
right, if any, to defer payment of interest and the maximum length of this
deferral period;
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·
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any
listing on a securities exchange;
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·
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the
initial public offering price; and
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·
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other
specific terms, including any additional events of default or
covenants.
|
Senior
Debt
We will
issue under the senior debt indenture the debt securities that will constitute
part of our senior debt. These senior debt securities will rank equally in right
of payment with all other unsecured and unsubordinated debt of the
Company.
Subordinated
Debt
We will
issue under the subordinated debt indenture the debt securities that will
constitute our subordinated debt. These subordinated debt securities will be
subordinate and junior in right of payment, to the extent and in the manner set
forth in the subordinated debt indenture, to all “senior indebtedness” of the
Company. The subordinated debt indenture defines “senior indebtedness” as the
principal of (and premium, if any) and interest on all debt of the Company
whether created, incurred or assumed before, on or after the date of the
subordinated debt indenture, but provides that “senior indebtedness” does not
include nonrecourse obligations, the subordinated debt securities, redeemable
stock or any other obligations specifically designated as being subordinate in
right of payment to senior indebtedness. See the subordinated debt indenture,
section 1.01.
In
general, the holders of all senior indebtedness are first entitled to receive
payment of the full amount unpaid on senior indebtedness before the holders of
any of the subordinated debt securities are entitled to receive a payment on
account of the principal or interest on the indebtedness evidenced by the
subordinated debt securities in certain events. These events
include:
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·
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any
insolvency or bankruptcy proceedings, or any receivership, liquidation,
reorganization or other similar proceedings which concern the Company or a
substantial part of its property;
|
|
·
|
a
default having occurred in the payment of principal, premium, if any, or
interest on or other monetary amounts due and payable on any senior
indebtedness or any other default having occurred concerning any senior
indebtedness, which permits the holder or holders of any senior
indebtedness to accelerate the maturity of any senior indebtedness with
notice or lapse of time, or both. Such an event of default must have
continued beyond the period of grace, if any, provided for such event of
default, and such an event of default shall not have been cured or waived
or shall not have ceased to exist;
or
|
|
·
|
the
principal of, and accrued interest on, any series of the subordinated debt
securities having been declared due and payable upon an event of default
pursuant to section 6.01 of the subordinated debt indenture. This
declaration must not have been rescinded and annulled as provided in the
subordinated debt indenture.
|
Events
of Default
When we
use the term “Event of Default” in an indenture with respect to the debt
securities of any series, here are some examples of what we mean:
|
(1)
|
default
in the payment of the principal of any debt security of such series when
the same becomes due and payable at maturity, upon acceleration,
redemption or mandatory repurchase, including as a sinking fund
installment, or otherwise;
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|
|
default
in the payment of interest on any debt security of such series when the
same becomes due and payable, and such default continues for a period of
30 days;
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|
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default
in the performance of or breach of any other covenant or agreement of the
Company in the applicable indenture with respect to any debt security of
such series or in the debt security of such series and such default or
breach continues for a period of 30 consecutive days or more after written
notice to the Company by the trustee or to the Company and the trustee by
the holders of 25% or more in aggregate principal amount of the debt
securities of all series affected thereby specifying such default or
breach and requiring it to be remedied and stating that such notice is a
“Notice of Default” under the
indenture;
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|
certain
events of bankruptcy, insolvency, reorganization or similar proceedings
with respect to the Company or any material subsidiary (as defined in the
indenture); and
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any
other Events of Default set forth in the applicable prospectus
supplement.
|
If an
Event of Default (other than an Event of Default specified in clause (4) with
respect to the Company) under an indenture occurs with respect to the debt
securities of any series and is continuing, then the trustee or the holders of
at least 25% in principal amount of the outstanding debt securities of that
series may by written notice, and the trustee at the request of the holders of
not less than 25% in principal amount of the outstanding debt securities of such
series will, require us to repay immediately the entire principal amount of the
outstanding debt securities of that series (or such lesser amount as may be
provided in the terms of the securities), together with all accrued and unpaid
interest and premium, if any.
If an
Event of Default under the indenture specified in clause (4) with respect to the
Company occurs and is continuing, then the entire principal amount of the
outstanding debt securities (or such lesser amount as may be provided in the
terms of the securities), together with accrued and unpaid interest, will
automatically become due immediately and payable without any declaration or
other act on the part of the trustee or any holder.
After a
declaration of acceleration or any automatic acceleration under clause (4)
described above of the debt securities of any series, the holders of a majority
in principal amount of outstanding debt securities of that series may rescind
this accelerated payment requirement if all existing Events of Default with
respect to that series, except for nonpayment of the principal and interest on
the debt securities of that series that has become due solely as a result of the
accelerated payment requirement, have been cured or waived and if the rescission
of acceleration would not conflict with any judgment or decree. The holders of a
majority in principal amount of the outstanding debt securities of any series
also have the right to waive past defaults with respect to that series, except a
default in paying principal or interest on any outstanding debt security of such
series, or in respect of a covenant or a provision that cannot be modified or
amended without the consent of all holders of the debt securities of that
series.
Holders
of at least 25% in principal amount of the outstanding debt securities of a
series may seek to institute a proceeding only after they have made written
request, and offered reasonable indemnity, to the trustee to institute a
proceeding and the trustee has failed to do so within 60 days after it received
this notice. In addition, within this 60-day period the trustee must not have
received directions inconsistent with this written request from holders of a
majority in principal amount of the outstanding debt securities of that series.
These limitations do not apply, however, to a suit instituted by a holder of a
debt security for the enforcement of the payment of principal, interest or any
premium on or after the due dates for such payment.
During
the existence of an Event of Default, the trustee is required to exercise the
rights and powers vested in it under the indenture and use the same degree of
care and skill in its exercise as a prudent person would under the circumstances
in the conduct of that person’s own affairs. If an Event of Default has occurred
and is continuing, the trustee is not under any obligation to exercise any of
its rights or powers at the request or direction of any of the holders of the
applicable debt securities unless those holders have offered to the trustee
reasonable security or indemnity. Subject to certain provisions, the holders of
a majority in principal amount of the outstanding debt securities of any series
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the trustee, or exercising any trust, or power
conferred on the trustee.
The
trustee will, within 90 days after any default occurs with respect to the debt
securities of any series, give notice of the default to the holders of the debt
securities of that series, unless the default was already cured or waived.
Unless there is a default in paying principal, interest or any premium when due,
the trustee can withhold giving notice to the holders if it determines in good
faith that the withholding of notice is in the interest of the
holders.
We are
required to furnish to each trustee an annual statement as to compliance with
all conditions and covenants under the indenture.
Covenants
Consolidation,
Merger or Sale of Assets
Each
indenture provides that we will not consolidate or combine with or merge with or
into, or, directly or indirectly, sell, assign, convey, lease, transfer or
otherwise dispose of all or substantially all of our properties and assets to,
any person or persons in a single transaction or through a series of
transactions, unless:
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·
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we
shall be the continuing person or, if we are not the continuing person,
the resulting, surviving or transferee person (the “surviving entity”) is
a company organized and existing under the laws of the United States or
any State or territory;
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·
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the
surviving entity will expressly assume all of our obligations under the
debt securities issued under that indenture and that indenture, and will,
if required by law to effectuate the assumption, execute supplemental
indentures which will be delivered to the trustee and will be in form and
substance reasonably satisfactory to the
trustee;
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|
·
|
immediately
after giving effect to such transaction or series of transactions on a pro
forma basis, no default has occurred and is continuing under that
indenture; and
|
|
·
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we
or the surviving entity will have delivered to the trustee an officers’
certificate and opinion of counsel stating that the transaction or series
of transactions and supplemental indenture, if any, complies with this
covenant and that all conditions precedent in the indenture relating to
the transaction or series of transactions have been
satisfied.
|
If any
consolidation, combination or merger or any sale, assignment, conveyance, lease,
transfer or other disposition of all or substantially all of our assets occurs
in accordance with the applicable indenture, the successor corporation will
succeed to, and be substituted for, and may exercise every right and power of
the Company under that indenture with the same effect as if such successor
corporation had been named as the Company and, except in the case of (1) any
lease or (2) any sale, assignment, conveyance, transfer, lease or other
disposition to certain subsidiaries of the Company, we will be discharged from
all obligations and covenants under that indenture and the debt securities
issued under that indenture.
In
addition, the applicable prospectus supplement will set forth the terms and
provisions relating to legal and covenant defeasance with respect to a
particular series of debt securities.
PLAN OF DISTRIBUTION
We may
sell the securities in any of the following ways:
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·
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directly
to one or more purchasers;
|
|
·
|
through
underwriters, brokers, or dealers;
or
|
|
·
|
through
a combination of any of these
methods.
|
The
prospectus supplement will set forth the specific terms of the offering of such
securities, including, if applicable:
|
·
|
the
name or names of any underwriters, dealers or agents and the amounts of
securities underwritten or purchased by each of them,
and
|
|
·
|
the
initial public offering price of the securities and the proceeds to us and
any discounts, commissions or concessions allowed or reallowed or paid to
underwriters or dealers.
|
In the
case of securities sold in a fixed price offering, after the initial public
offering the public offering price and any discounts or concessions allowed or
reallowed or paid to dealers and other selling terms may be changed from time to
time.
If
underwriters are used in the sale of any securities, the securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed initial public offering price or at varying prices determined at the time
of sale. The securities may be either offered to the public through underwriting
syndicates represented by managing underwriters, or directly by underwriters.
Generally, the underwriters’ obligations to purchase the securities will be
subject to certain conditions precedent. The underwriters will generally be
obligated to purchase all of the securities if they purchase any of the
securities (other than any securities purchased upon exercise of any
over-allotment option).
We may
sell the securities through agents from time to time. The prospectus supplement
will name any agent involved in the offer or sale of the securities and any
commissions paid to them. Generally, any agent will be acting on a best or
reasonable efforts basis for the period of its appointment.
Any
underwriters and agents that participate in the distribution of the securities
may be deemed to be “underwriters” as defined in the Securities Act of 1933, as
amended (the “Securities Act”). Any commissions paid or any discounts or
concessions allowed to any such persons, and any profits they receive on resale
of the securities, may be deemed to be underwriting discounts and commissions
under the Securities Act. We will identify any underwriters or agents and
describe their compensation in a prospectus supplement.
Underwriters
or agents may purchase and sell the securities in the open market. These
transactions may include over-allotment, stabilizing transactions, syndicate
covering transactions and penalty bids. Over-allotment involves sales in excess
of the offering size, which creates a short position. Stabilizing transactions
consist of bids or purchases for the purpose of preventing or retarding a
decline in the market price of the securities. Syndicate covering transactions
involve the placing of any bid on behalf of the underwriting syndicate or the
effecting of any purchase to reduce a short position created in connection with
the offering. The underwriters or agents also may impose a penalty bid, which
permits them to reclaim selling concessions allowed to syndicate members or
certain dealers if they repurchase the securities in stabilizing or covering
transactions. These activities may stabilize, maintain or otherwise affect the
market price of the securities, which may be higher than the price that might
otherwise prevail in the open market. These activities, if begun, may be
discontinued at any time. These transactions may be effected on any exchange on
which the securities are traded, in the over-the-counter market or
otherwise.
Agents
and underwriters may be entitled to indemnification by us against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments which the agents or underwriters may be required to
make in respect thereof.
Agents
and underwriters and their affiliates may engage in transactions with or perform
services for us in the ordinary course of business.
VALIDITY OF THE SECURITIES
The
validity of the issuance of the securities offered hereby will be passed on for
us by Bryan Cave LLP.
EXPERTS
The
consolidated balance sheets of Ruby Tuesday, Inc. and subsidiaries as of June 3,
2008 and June 5, 2007, and the related consolidated statements of income,
shareholders’ equity and comprehensive income and cash flows for each of the
years in the three-year period ended June 3, 2008, and the related financial
statement schedule and management’s assessment of the effectiveness of internal
control over financial reporting as of June 3, 2008 have been incorporated by
reference herein in reliance upon the reports of KPMG LLP,
independent registered public accounting firm, incorporated by reference herein,
and upon the authority of said firm as experts in accounting and
auditing. The audit report covering the consolidated financial
statements refers to changes in the method of accounting for share-based
payments due to the adoption of the provisions of Statement of Financial
Accounting Standards No. 123 (Revised 2004),
Share-Based Payment
, as of
June 7, 2006 and for defined benefit pension and other postretirement plans due
to the adoption of the recognition and disclosure provisions of Statement of
Financial Accounting Standards No. 158,
Employer’s Accounting for Defined
Benefit Pension and Other Postretirement Plans – an amendment of FASB Statements
No. 87,88, 106, and 132(R)
in 2007.
WHERE YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and current reports, proxy statements and other information
with the SEC. You may read and copy any document that we file at the
Public Reference Room of the SEC at 100 F Street, N.E., Washington,
D.C. 20549. You may obtain information on the operation of
the Public Reference Room by calling the SEC at 1-800-SEC-0330. In
addition, the SEC maintains an Internet site at http://www.sec.gov, from which
interested persons can electronically access our SEC filings, including the
registration statement of which this prospectus is a part and the exhibits and
schedules thereto. You may inspect information that we file with the New York
Stock Exchange, as well as our SEC filings, at the offices of the New York Stock
Exchange at 20 Broad Street, New York, New York 10005.
The SEC allows us to “incorporate by
reference” into this prospectus information we file with it, which means that we
can disclose important information to you by referring you to those
documents. The information incorporated by reference is an important
part of this prospectus, and information that we file later with the SEC will
automatically update and supersede this information. We incorporate
by reference the documents listed below and all documents subsequently filed
with the SEC pursuant to Section 13(a), 13(c), 14, or 15(d) of the Exchange Act,
prior to the termination of the offering under this prospectus, except that,
anything herein to the contrary notwithstanding, we do not incorporate by
reference any document, exhibit or information that is deemed to have been
“furnished” to, rather than “filed” with, the SEC:
|
(a)
|
Annual
Report on Form 10-K for the year ended June 3, 2008 filed on August 4,
2008;
|
|
(b)
|
Quarterly
Reports on Form 10-Q filed on October 9, 2008, January 9, 2009 and April
9, 2009; and
|
|
(c)
|
Current
Reports on Form 8-K filed on July 14, 2008 and December 18, 2008 (other
than portions of these documents or exhibits that are furnished under Item
2.02 or Item 7.01).
|
Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this prospectus 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 or in an applicable prospectus supplement or free writing
prospectus 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 prospectus.
You may request a copy of these filings
at no cost by writing or telephoning the Investor Relations office, Ruby
Tuesday, Inc., 150 West Church Avenue, Maryville, TN 37801,
865-379-5700. You may also access the documents
incorporated
by reference in this prospectus through our website
www.rubytuesday.com
. No
information available on or through our website shall be deemed to be
incorporated into this prospectus or the registration statement of which it
forms a part.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14.
Other Expenses
of Issuance and Distribution
The
following table sets forth the costs and expenses payable by the Registrant in
connection with the sale of the securities being registered hereby.
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|
|
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Registration
fee
|
|
$
|
16,740
|
|
Transfer
agent’s fees
|
|
|
30,000
|
|
Printing
expenses
|
|
|
75,000
|
|
Legal
fees and expenses
|
|
|
150,000
|
|
Accounting
fees and expenses
|
|
|
100,000
|
|
Miscellaneous
|
|
|
50,000
|
|
Total
|
|
$
|
421,740
|
|
Each of
the amounts set forth above, other than the Registration fee, is an
estimate.
Item
15.
Indemnification
of Directors and Officers
Subsection
(a) of Section 14-2-851 of the Georgia Business Corporation Code (the
“Code”) provides that a corporation may indemnify an individual made
a party to a proceeding because he or she is or was a director against liability
incurred in the proceeding if such individual conducted himself or herself in
good faith and such individual reasonably believed, in the case of conduct in an
official capacity, that such conduct was in the best interests of the
corporation and, in all other cases, that such conduct was at least not opposed
to the best interests of the corporation and, in the case of any criminal
proceeding, such individual had no reasonable cause to believe such conduct was
unlawful. Subsection (d) of Section 14-2-851 of the Code provides
that a corporation may not indemnify a director in connection with a proceeding
by or in the right of the corporation except for reasonable expenses incurred in
connection with the proceeding if it is determined that the director has met the
relevant standard of conduct under Section 14−2−851 of the Code or in connection
with any proceeding with respect to conduct for which he or she was adjudged
liable on the basis that personal benefit was improperly received by him or her,
whether or not involving action in his or her official capacity.
Notwithstanding
the foregoing, pursuant to Section 14-2-854 of the Code a court may order a
corporation to indemnify a director or advance expenses if such court determines
that the director is entitled to indemnification or advance for expenses under
the Code or that it is fair and reasonable to indemnify such director or to
advance expenses to such director, in view of all the relevant circumstances,
even if such director has not met the relevant standard of conduct set forth in
subsections (a) and (b) of Section 14-2-851 of the Code, failed to comply with
Section 14-2-853 of the Code or was adjudged liable in a proceeding referred to
in paragraph (1) or (2) of subsection (d) of Section 14-2-851 of the
Code. However, if such director was adjudged liable, the
indemnification shall be limited to reasonable expenses incurred in connection
with the proceeding. If the court orders indemnification and/or
advance of expenses pursuant to Section 14−2−854 of the Code, the court may also
order the corporation to pay the director’s reasonable expenses in obtaining the
court ordered indemnification or advance of expenses.
Section
14-2-852 of the Code provides that if a director has been wholly successful, on
the merits or otherwise, in the defense of any proceeding to which he or she was
a party, because he or she is or was a director of the corporation, the
corporation shall indemnify the director against reasonable expenses incurred by
the director in connection with the proceeding.
Section
14-2-857 of the Code provides that a corporation may indemnify and advance
expenses to an officer of the corporation who is a party to a proceeding because
he or she is an officer of the corporation to the same extent as a director and
if he or she is not a director, to such further extent as may be provided in its
articles of incorporation,
bylaws, a
resolution of its board of directors or contract except for liability arising
out of conduct that constitutes: (i) appropriation of any business opportunity
of the corporation in violation of his or her duties; (ii) acts or omissions
which involve intentional misconduct or a knowing violation of law; (iii)
receipt of an improper personal benefit or (iv) making distributions in
violation of Section 14-2-640 of the Code or the corporation’s articles of
incorporation. Section 14-2-857 of the Code also provides that an
officer of the corporation who is not a director is entitled to mandatory
indemnification under Section 14-2-852 and is entitled to apply for court
ordered indemnification or advances for expenses under Section 14-2-854, in each
case to the same extent as a director. In addition, Section 14−2−857
provides that a corporation may also indemnify and advance expenses to an
employee or agent who is not a director to the extent, consistent with public
policy, that may be provided by its articles of incorporation, bylaws, general
or specific action of its board of directors or contract.
Article
IX of our articles of incorporation and Article XII of our by-laws provide for
indemnification of any person who is or was a director, officer, employee or
agent of the Company or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise.
Item
16.
Exhibits and
Financial Statement Schedules
(a)
The
following exhibits are filed as part of this Registration
Statement:
|
|
Description
|
1.1
|
|
Form
of Underwriting Agreement. +
|
4.1
|
|
Articles
of Incorporation, as amended of Ruby Tuesday, Inc. (1)
|
4.2
|
|
Bylaws,
as amended, of Ruby Tuesday, Inc. (2)
|
4.3
|
|
Specimen
Common Stock Certificate.
|
4.4
|
|
Form
of Senior Debt Indenture.
|
4.5
|
|
Form
of Subordinated Debt Indenture.
|
4.6
|
|
Form
of Senior Note. +
|
4.7
|
|
Form
of Subordinated Note. +
|
4.8
|
|
Form
of Preferred Stock Certificate. +
|
4.9
|
|
Certificate
of Designations for Preferred Stock. +
|
5
|
|
Opinion
of Bryan Cave LLP.
|
12.1
|
|
Statement
regarding computation of Consolidated Ratio of Earnings to Fixed
Charges.
|
23.1
|
|
Consent
of KPMG LLP, Independent Registered Public Accounting
Firm.
|
23.2
|
|
Consent
of Bryan Cave LLP (included in Exhibit 5).
|
24.1
|
|
Power
of Attorney (included on signature page).
|
25.1
|
|
Statement
of Eligibility on Form T-1 for Senior Debt Indenture. +
|
25.2
|
|
Statement
of Eligibility on Form T-1 for Subordinated Debt Indenture.
+
|
|
|
Description
|
+
|
|
To
be filed by amendment or as an exhibit to a document incorporated by
reference.
|
(1)
|
|
Incorporated
by reference to Exhibit 3.1 of Form 8-B filed with the Securities and
Exchange Commission on March 15, 1996 by Ruby Tuesday, Inc. (File No.
1-12454).
|
(2)
|
|
Incorporated
by reference to Exhibit 3.1 to Quarterly Report on Form 10-Q filed with
the Securities and Exchange Commission on January 9, 2009 (File No.
1-12454).
|
Item
17.
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 of
1933;
(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% 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), (a)(1)(ii) and (a)(1)(iii) above 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 Securities and
Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement.
(2) 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 herein, 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.
(4) That,
for the purpose of determining liability under the Securities Act
of
1933 to
any purchaser, if the registrant is relying on Rule 430B:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement;
and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of this registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x)
for the purpose of providing the information required by Section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial
bona fide
offering
thereof.
Provided,
however
, that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such effective date.
(5) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the
securities:
The
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating
to the offering required to be filed pursuant to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or
on behalf of the undersigned registrant or used or referred to by the
undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
|
(b)
|
The
undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Trust Indenture
Act.
|
|
(c)
|
The
undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the
registrant’s annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide
offering
thereof.
|
|
(d)
|
Insofar
as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions referenced in Item 15 of this
registration statement, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
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
hereunder, 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 of whether such indemnification by
it is against public policy as expressed in the Act and will be governed
by the final adjudication of such
issue.
|
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Maryville, State of Tennessee, on the 25th day of June, 2009.
Ruby
Tuesday, Inc.
|
|
|
|
|
|
By:
|
/s/
Marguerite N. Duffy
|
|
|
Name:
|
Marguerite
N. Duffy
|
|
|
Title:
|
Senior
Vice President, Chief Financial
Officer
|
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Marguerite N. Duffy and Scarlett May, and each of them,
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 any and all
additional registration statements pursuant to Rule 462(b) of the Securities Act
of 1933, as amended, and to file the same, with all exhibits thereto, and all
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto each said attorney-in-fact and agents full power and
authority to do and perform each and every act in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or either of them or their
or his or her substitute or 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
|
Title
|
Date
|
|
Chairman
of the Board, President and Chief Executive Officer
(Principal
Executive Officer)
|
|
Samuel
E. Beall, III
|
June
25, 2009
|
|
Senior
Vice President and Chief Financial Officer
(Principal
Financial Officer and Principal Accounting Officer)
|
|
Marguerite
N. Duffy
|
June
25, 2009
|
|
Director
|
|
Claire
L. Arnold
|
|
|
Director
|
|
Kevin
T. Clayton
|
June
25, 2009
|
|
Director
|
|
James
A. Haslam
|
June
25, 2009
|
|
Director
|
|
Bernard
Lanigan Jr.
|
June
25, 2009
|
|
Director
|
|
R.
Brad Martin
|
June
25, 2009
|
|
Director
|
|
Dr.
Donald Ratajczak
|
June
25, 2009
|
|
Director
|
|
Stephen
I. Sadove
|
June
25, 2009
|
EXHIBIT
INDEX
|
|
Description
|
1.1
|
|
Form
of Underwriting Agreement. +
|
4.1
|
|
Articles
of Incorporation, as amended of Ruby Tuesday, Inc. (1)
|
4.2
|
|
Bylaws,
as amended, of Ruby Tuesday, Inc. (2)
|
4.3
|
|
Specimen
Common Stock Certificate.
|
4.4
|
|
Form
of Senior Debt Indenture.
|
4.5
|
|
Form
of Subordinated Debt Indenture.
|
4.6
|
|
Form
of Senior Note. +
|
4.7
|
|
Form
of Subordinated Note. +
|
4.8
|
|
Form
of Preferred Stock Certificate. +
|
4.9
|
|
Certificate
of Designations for Preferred Stock. +
|
5
|
|
Opinion
of Bryan Cave LLP.
|
12.1
|
|
Statement
regarding computation of Consolidated Ratio of Earnings to Fixed
Charges.
|
23.1
|
|
Consent
of KPMG LLP, Independent Registered Public Accounting
Firm.
|
23.2
|
|
Consent
of Bryan Cave LLP (included in Exhibit 5).
|
24.1
|
|
Power
of Attorney (included on signature page).
|
25.1
|
|
Statement
of Eligibility on Form T-1 for Senior Debt Indenture. +
|
25.2
|
|
Statement
of Eligibility on Form T-1 for Subordinated Debt Indenture.
+
|
|
|
Description
|
+
|
|
To
be filed by amendment or as an exhibit to a document incorporated by
reference.
|
(1)
|
|
Incorporated
by reference to Exhibit 3.1 of Form 8-B filed with the Securities and
Exchange Commission on March 15, 1996 by Ruby Tuesday, Inc. (File No.
1-12454).
|
(2)
|
|
Incorporated
by reference to Exhibit 3.1 to Quarterly Report on Form 10-Q filed with
the Securities and Exchange Commission on January 9, 2009 (File No.
1-12454).
|
II-8
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