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As Filed With The Securities And Exchange Commission on December
29, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Brinker International, Inc.
(Exact name of issuer as specified in its charter)
Delaware 75-1914582
(State of incorporation) (I.R.S. employer identification no.)
6820 LBJ Freeway
Dallas, Texas 75240
(Address of principal executive office) (Zip code)
Stock Option and Incentive Plan
1999 Stock Option and Incentive Plan for Non-Employee Directors
and Consultants
(Full title of the plans)
Roger F. Thomson
Executive Vice President and General Counsel
Brinker International, Inc.
6820 LBJ Freeway
Dallas, Texas 75240
(972) 980-9917
(Name, address and telephone number, including area code,
of agent for service)
APPROXIMATE DATE OF PROPOSED COMMENCEMENT OF SALES PURSUANT TO
THE PLANS: Sales to the purchasers of securities proposed to be
registered hereunder will occur from time to time after the
effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
Title of Amount to Proposed Proposed Amount of
Securities be Maximum Maximum Registration Fee*
to be Registered Offering Aggregate
Registered Price Per Offering
Share Price
Common Stock, 6,300,000(1) $21.04 $132,552,000.00 $34,994.00
$0.10 par value
* Estimated solely for purposes of calculating the registration
fee, which has been computed in accordance with Rule 457(h).
(1)6,000,000 shares of Common Stock will be sold pursuant to the
Stock Option and Incentive Plan and 300,000 shares of Common
Stock will be sold pursuant to the 1999 Stock Option and
Incentive Plan for Non-Employee Directors and Consultants.
Item 3. Incorporation of Documents by Reference.
The documents listed (i) through (iii) below are hereby
incorporated by reference into this Registration Statement. All
documents subsequently filed by the registrant pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934 (the "1934 Act") prior to filing of a post-effective
amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference herein and to be
a part hereof from the date of filing of such documents.
(i) The registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the 1934 Act or the latest prospectus
filed pursuant to Rule 424(b) under the Securities Act of 1933,
as amended, (the "1933 Act"), which contains, either directly or
by incorporation by reference, certified financial statements for
the registrant's latest fiscal year for which such statements
have been filed.
(ii) All other reports filed pursuant to Section 13(a) and
15(d) of the 1934 Act since the end of the fiscal year covered by
the annual reports or the prospectus referred to in (i) above.
(iii) The description of the registrant's Common Stock,
$.10 par value ("Common Stock"), which is contained in the
Company's latest registration statement filed under the 1934 Act,
including any amendments or reports filed for the purpose of
updating such description.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Officers and Directors.
Section 145 of the General Corporation Law of the State of
Delaware provides generally and in pertinent part that a Delaware
corporation may indemnify its directors and officers against
expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by them in connection with any
suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
corporation) if, in connection with the matters in issue, they
acted in good faith and in a manner they reasonably believed to
be in, or not opposed to, the best interests of the corporation,
and, in connection with any criminal suit or proceeding, if in
connection with the matters in issue, they had no reasonable
cause to believe their conduct was unlawful. Section 145 further
provides that in connection with the defense or settlement of any
action by or in the right of the corporation, a Delaware
corporation may indemnify its directors and officers against
expenses actually and reasonably incurred by them if, in
connection with the matters in issue, they acted in good faith,
in a manner they reasonably believed to be in, or not opposed to,
the best interests of the corporation, except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper. Section 145 permits a
Delaware corporation to grant its directors and officers
additional rights of indemnification through bylaw provisions and
otherwise and to purchase indemnity insurance on behalf of its
directors and officers.
Article Ninth of the registrant's Certificate of
Incorporation provides that no director shall be liable to the
registrant or its stockholders for monetary damages for breach of
fiduciary duty, provided that the liability of a director is not
limited (i) for any breach of the director's duty of loyalty to
the registrant or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or
knowing violation of law, (iii) under Section 174 of the Delaware
General Corporation Law or (iv) any transaction from which such
director derived an improper personal benefit.
Article VI of the registrant's bylaws provides, in general,
that the registrant shall indemnify its directors and officers
under the circumstances defined in Section 145. The Company has
obtained an insurance policy insuring the directors and officers
of the Company against certain liabilities, if any, that arise in
connection with the performance of their duties on behalf of the
Company and its subsidiaries.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5 Opinion of Hallett & Perrin, P.C. (filed herewith).
23(a) Consent of KPMG LLP (filed herewith).
23(b) Consent of Hallett & Perrin, P.C. (included as
part of Exhibit 5).
24 Power of Attorney (see signature page of this
Registration Statement)
Item 9. Undertakings.
(1) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement to:
(i) Include any prospectus required by Section
10(a)(3) of the 1933 Act.;
(ii) 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 this registration statement;
(iii) Include any material information on the
plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement;
provided, however, that (i) and (ii) do not apply if the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the 1934 Act that are incorporated by
reference in this registration statement.
(b) That, for the purpose of determining any liability
under the 1933 Act, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at the time shall be deemed to be the initial
bona fide offering thereof; and
(c) 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.
(2) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each
filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the 1934 Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the 1934 Act) that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) Insofar as indemnification for liabilities arising
under the 1933 Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the certificate
of incorporation or bylaws of the registrant 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, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the 1933 Act, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and
has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Dallas and the State of Texas, on the 29 day of December,
1999.
BRINKER INTERNATIONAL, INC.
By: /s/Ronald A. McDougall
Ronald A. McDougall
Vice Chairman and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose
signature appears below hereby constitutes and appoints Ronald A.
McDougall and Russell G. Owens, and each of them, each with full
power to act without the other, his or her true and lawful
attorneys-in-fact and agents, each 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 or
all amendments to this Registration Statement, and to file the
same with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto each of said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as
fully to all intents and purposes as he or she might or could do
in person hereby ratifying and confirming that each of said
attorneys-in-fact and agents or his substitutes may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the 1933 Act, this
registration statement has been signed below by the following
persons in the capacities and on December 29, 1999.
Signature Title
/s/Ronald A. McDougall
Ronald A. McDougall Vice Chairman and Chief Executive
Officer, and Director (Principal
Executive Officer)
/s/Russell G. Owens
Russell G. Owens Executive Vice President and Chief
Financial and Strategic Officer
(Principal Financial and
Accounting Officer)
/s/Norman E. Brinker
Norman E. Brinker Chairman of the Board
/s/Douglas H. Brooks
Douglas H. Brooks Director
_________________________
Donald J. Carty Director
_________________________
Dan W. Cook, III Director
_________________________
Marvin J. Girouard Director
/s/J.M. Haggar, Jr.
J.M. Haggar, Jr. Director
___________________________
Frederick S. Humphries Director
___________________________
Ronald Kirk Director
/s/Jeffrey A. Marcus
Jeffrey A. Marcus Director
/s/James E. Oesterreicher
James E. Oesterreicher Director
/s/Roger T. Staubach
Roger T. Staubach Director
INDEX TO EXHIBITS
5 Opinion of Hallett & Perrin, P.C. (filed herewith).
23(a) Consent of KPMG LLP (filed herewith).
23(b) Consent of Hallett & Perrin, P.C. (included as part of
Exhibit 5).
24 Power of Attorney (see signature page of this
Registration Statement).
Exhibit 5
(214) 953-0053
December 29, 1999
Brinker International, Inc.
6820 LBJ Freeway
Suite 200
Dallas, Texas 75240
Gentlemen:
We have served as counsel for Brinker International, Inc., a
Delaware corporation (the "Company"), in connection with the
Registration Statement on Form S-8 (the "Registration Statement")
filed under the Securities Act of 1933, as amended, covering the
issuance of a maximum of 6,300,000 shares (the "Shares") of
Common Stock, $.10 par value, of the Company to be issued in
connection with the Stock Option and Incentive Plan and the 1999
Stock Option and Incentive Plan for Non-Employee Directors and
Consultants.
We have examined such documents and questions of law as we
have deemed necessary to render the opinion expressed herein.
Based upon the foregoing, we are of the opinion that the Shares,
when issued and delivered, will be duly and validly issued and
outstanding, fully paid and non-assessable.
We consent to the use of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ HALLETT & PERRIN, P.C.
EXHIBIT 23(a)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Brinker International, Inc.:
We consent to the use of our report incorporated herein by
reference.
/s/ KPMG LLP
Dallas, Texas
December 29, 1999