As filed with the Securities and Exchange Commission on January 11, 1996
Registration No. 33-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BRINKER INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 75-1914582
(State of incorporation) (I.R.S. employer identification number)
6820 LBJ Freeway
Dallas, Texas 75240
214-980-9917
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
Debra L. Smithart
Executive Vice President
Brinker International, Inc.
6820 LBJ Freeway
Dallas, Texas 75240
214-980-9917
(Name, address including zip code, and telephone number, including area
code, of agent for service)
Copies to:
Roger F. Thomson Bruce H. Hallett
Executive Vice President & General Counsel Crouch & Hallett, L.L.P.
6820 LBJ Freeway 717 N. Harwood St.
Dallas, Texas 75240 Suite 1400
214-980-9917 Dallas, Texas 75201
214-953-0053
Approximate date of commencement of proposed sale to the public: As
soon as practicable upon the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to a dividend or interest reinvestment plans, please check the
following box. [ ]
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. [ ] __________
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. [ ] ________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
Title of Each Proposed Maximum Proposed Maximum Amount of
Class of Securities Amount Being Offering Price Aggregate Registration
Being Registered Registered Per Share (1) Offering Price(1) Fee
Common Stock; 3,999,957 $14.50 $57,999,377 $20,000.00
$0.10 par value shares
(1) Estimated solely for purposes of calculating the amount of the
registration fee pursuant to the provisions of Rule 457(c) under
the Securities Act of 1933 based on the average of the high and
low prices for the Common Stock as reported on the New York Stock
Exchange on January 9, 1996.
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.
SUBJECT TO COMPLETION DATED JANUARY 11, 1996
3,999,957 Shares
BRINKER INTERNATIONAL, INC.
COMMON STOCK
The 3,999,957 shares (the "Shares") of Common Stock of Brinker
International, Inc., a Delaware corporation ("Brinker" or the "Company"),
offered hereby are being sold by the Selling Stockholders. See "Selling
Stockholders." The Company will not receive any of the proceeds from the sale
of the Shares offered hereby.
The Shares may be offered by the Selling Stockholders from time to time
in open market transactions (which may include block transactions) or
otherwise on the New York Stock Exchange, or in private transactions
(including transactions involving a pledge of the Shares) at prices relating
to prevailing market prices or at negotiated prices. The Selling
Stockholders may effect such transactions by selling the Shares to or through
broker-dealers, and such broker-dealers may receive compensation in the form
of discounts, concessions or commissions from the Selling Stockholders and/or
purchasers of the Shares for whom such broker-dealers may act as agent or to
whom they sell as principal or both (which compensation as to a particular
broker-dealer might be in excess of customary commissions). The Selling
Stockholders and any broker-dealer acting in connection with the sale of the
Shares offered hereby may be deemed to be "underwriters" within the meaning of
the Securities Act of 1933, as amended (the "Act"), in which event any
discounts, concessions or commissions received by them, which are not expected
to exceed those customary in the types of transactions involved, or any profit
on resales of the Shares by them, may be deemed to be underwriting commissions
or discounts under the Act. The offering contemplated hereby will terminate
as to the Shares upon the later to occur of the sale of all of the Shares or
August 29, 1998. See "Selling Stockholders."
Sales of the Shares by certain of the Selling Stockholders owning in the
aggregate 3,129,615 Shares must comply with certain contractual volume
restrictions. See "Selling Stockholders."
The costs, expenses and fees incurred in connection with the
registration of the Shares, which are estimated to be $30,000 (excluding
selling commissions and brokerage fees incurred by the Selling Stockholders),
will be paid by the Company. The Company has agreed to indemnify the Selling
Stockholders against certain liabilities, including liabilities under the Act,
and the Selling Stockholders have agreed to indemnify the Company against
certain liabilities relating to information furnished by the Selling
Stockholders to the Company and included in this Registration Statement.
The last reported sale price of the Common Stock on the New York Stock
Exchange on January 9, 1996 was $14.25 per share.
__________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A
CRIMINAL OFFENSE.
_________________
The date of this Prospectus is January 11, 1996.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "1934 Act") and in accordance therewith
files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and other
information concerning the Company can be inspected and copied at the public
reference facilities maintained by the Commission at its offices at Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's
Regional Offices at Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661 and 75 Park Place, New York, New York 10007.
Copies of such material can be obtained from the Public Reference Section of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. In addition, such material can be inspected at the offices of the New
York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company with the Securities and
Exchange Commission are incorporated in this Prospectus by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
June 28, 1995;
2. The Company's Quarterly Report on Form 10-Q for the period ended
September 27, 1995; and
3. The Company's Report on Form 8-K filed with the Commission on
November 3, 1995.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the 1934 Act prior to the termination of the
offering of the shares of Common Stock hereunder shall be deemed to be
incorporated herein by reference and shall be a part hereof from the date of
the filing of such documents. Any statements contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or replaced 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 modifies or
replaces such statement. Any such statement so modified or replaced shall not
be deemed, except as so modified or replaced, to constitute a part of this
Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a Prospectus is delivered, upon written or oral
request of such person, a copy of the documents incorporated by reference
herein, other than exhibits to such documents not specifically incorporated by
reference. Such requests should be directed to Brinker International, Inc.,
6820 LBJ Freeway, Dallas, Texas 75240, Attention: Investor Relations
(telephone (214) 980-9917).
THE COMPANY
Brinker is principally engaged in the operation and development of the
Chili's Grill & Bar ("Chili's"), Romano's Macaroni Grill ("Macaroni Grill"),
On The Border Cafes ("On the Border"), Cozymel's ("Cozymel's") and
Maggiano's/Corner Bakery ("Maggiano's") restaurants. Brinker was organized
under the laws of the State of Delaware in September 1983 to succeed to the
business operated by Chili's, Inc., a Texas corporation, organized in August
1977. Brinker completed the acquisitions of Macaroni Grill, On The Border,
Cozymel's and Maggiano's in November 1989, May 1994, July 1995 and August
1995, respectively.
Restaurants
Chili's. Chili's establishments are full-service, Southwestern theme
restaurants, featuring a casual atmosphere and a limited menu of freshly
prepared chicken, beef and seafood entrees, hamburgers, ribs, fajitas,
sandwiches, salads, appetizers and desserts, all of which are prepared fresh
daily according to special Chili's recipes. Service personnel are dressed
casually in jeans or slacks, knit shirts and aprons to reinforce the casual,
informal environment. The decor of a Chili's restaurant consists of booth
seating, tile-top tables, hanging plants and wood and brick walls covered with
interesting memorabilia.
Macaroni Grill. Macaroni Grill is an upscale Italian theme restaurant
which specializes in family-style recipes and features seafood, meat, chicken
and pasta entrees, salads, pizza, appetizers and desserts with a full-service
bar in most restaurants. Exhibition cooking, wood-burning pizza ovens and
rotisseries provide an enthusiastic and exciting environment in the
restaurants. Macaroni Grill restaurants feature white linen-clothed tables,
fireplaces, sous stations and prominent displays of wines. Service personnel
are dressed in white, starched shirts and aprons, dark slacks and bright ties.
On The Border. On The Border restaurants are full-service, casual Tex-
Mex theme restaurants featuring Southwest mesquite-grilled specialties and
traditional Tex-Mex entrees and appetizers served in generous portions at
modest prices. On The Border restaurants feature an outdoor patio, a full-
service bar, booth and table seating and brick and wood walls with a Southwest
decor. On The Border restaurants also offer enthusiastic table service
intended to minimize customer waiting time and facilitate table turnover while
simultaneously providing customers with a satisfying casual dining experience.
Cozymel's. Cozymel's restaurants are casual, upscale authentic Yucatan
restaurants featuring fish, chicken, beef and pork entrees, appetizers,
desserts and a full service bar featuring a wide variety of specialty frozen
beverages. Cozymel's restaurants offer an authentic "Yucatan vacation"
atmosphere, which includes a souvenir shop and an outdoor patio. Service
personnel are dressed casually in colorful T-shirts and black pants.
Maggiano's. Maggiano's restaurants are designed as classic re-creations
of a New York City pre-war "Little Italy" dinner house, and the Corner
Bakeries are designed as retail traditional old-world bread bakeries. The
existing restaurants and Corner Bakeries are located in the Chicago
metropolitan area.
Each of the Maggiano's restaurants is a casual, full-service, Italian
restaurant with a full lunch and dinner menu as well as a family-style menu,
offering southern Italian appetizers; homemade breads; large portions of
pasta, chicken, seafood, veal and steaks; and a full range of alcoholic
beverages. The Maggiano's restaurants feature a casual atmosphere with black
and white tile floors and a bakery.
The Corner Bakeries are designed as a retail bakery in the traditional,
old world bread bakery style. The Corner Bakeries offer homemade hearth-
cooked loaves, rolls, muffins, cookies and specialty items made fresh daily,
including, muffins, brownies and cookies. The breads offered by the Corner
Bakeries include baguettes, country loaves and specialty breads such as
raisin-nut, olive, chocolate-cherry, multi-grains and ryes. In addition, the
Corner Bakeries also offer pizza, focaccia, sandwiches, soups and salads.
The Company's principal offices are located at 6820 LBJ Freeway, Dallas,
Texas 75240, and its telephone number is (214) 980-9917.
Restaurant Locations
On January 8, 1996, Brinker's system of company-operated and franchised
units included 566 restaurants located in 46 states, Canada, Singapore,
Malaysia, Indonesia, France, Australia, Egypt, Puerto Rico, Mexico and Great
Britain. The Company's portfolio of restaurants is illustrated below:
January 8, 1996
Chili's:
Company-Operated 339
Franchise 123
Macaroni Grill:
Company-Operated 61
Franchise 2
On The Border:
Company-Operated 19
Franchise 4
Cozymel's 6
Maggiano's:
Maggiano's 3
Corner Bakery 7
Other 2
TOTAL: 566
SELLING STOCKHOLDERS
On August 29, 1995, Brinker completed the acquisition (the
"Acquisition") of all of the outstanding shares of stock of Maggiano's Old
Orchard, Inc. ("Maggiano's"). As a result of this Acquisition, the former
stockholders of Maggiano's received a total of 3,999,957 shares of Brinker's
Common Stock. The Selling Stockholders are the former stockholders of
Maggiano's. The Company is registering the Shares of the Selling Stockholders
pursuant to certain registration rights granted to them pursuant to an
Agreement and Plan of Merger entered in connection with the Acquisition.
The following table contains certain data regarding the beneficial
ownership of the Company's Common Stock by the Selling Stockholders on
December 31, 1995:
Shares Owned Shares Owned
Selling Before Offering Shares Being After Offering
Stockholder Number Percent Offered (1) Number Percent (2)
Lettuce Entertain You 55,044 (3) 55,044 -0- -0-
Enterprises, Inc.
Richard Melman, 1,172,845 1.5% 1,170,845 2,000 (2)
Trustee of the
Richard Melman
Revocable Trust
Robert Wattel, Trustee 272,920 (3) 272,920 -0- -0-
of the Robert Wattel
Revocable Trust
Charles L. Haskell 272,920 (3) 272,920 -0- -0-
Manfred J. Joast, 235,720 (3) 235,720 -0- -0-
Trustee of the Manfred
J. Joast Revocable Trust
Mark F. Tormey 353,921 (3) 350,921 3,000 (2)
David Wolfgram 233,739 (3) 233,739 -0- -0-
George Koutsogiorgas 61,781 (3) 61,781 -0- -0-
Jonathan Fox 169,297 (3) 169,297 -0- -0-
Gerard V. Centioli(4) 300,462 (3) 296,462 4,000 (2)
David Swinghamer 126,791 (3) 126,791 -0- -0-
Susan SouthgateFox 68,410 (3) 68,410 -0- -0-
Jean Joho 69,233 (3) 69,233 -0- -0-
Russell Bry 107,773 (3) 107,773 -0- -0-
Gabino Sotelino 7,324 (3) 7,324 -0- -0-
Joseph A. Decker 39,313 (3) 39,313 -0- -0-
Joseph E. Lanuti, Jr. 105,995 (3) 105,995 -0- -0-
Kevin Brown 5,897 (3) 5,897 -0- -0-
Stephen K. Ottmann, 5,897 (3) 5,897 -0- -0-
Trustee of the
Stephen K. Ottmann
Revocable Trust
Howard M. Katz 5,897 (3) 5,897 -0- -0-
Yves Roubaud 5,897 (3) 5,897 -0- -0-
John Buchanan 5,897 (3) 5,897 -0- -0-
Donald C. Carson 5,897 (3) 5,897 -0- -0-
James G. Banakis 5,897 (3) 5,897 -0- -0-
Stephen E. LaHaie 5,897 (3) 5,897 -0- -0-
Robert Vick 5,897 (3) 5,897 -0- -0-
Jeffrey D. Goudie 4,684 (3) 4,684 -0- -0-
Ricardo R. Scicchitano 4,684 (3) 4,684 -0- -0-
David DiGregorio 4,684 (3) 4,684 -0- -0-
Mary Kay Halston 2,342 (3) 2,342 -0- -0-
Michael E. Fox, Trustee 13,480 (3) 13,480 -0- -0-
of the Jeffrey Gift
Trust
Michael E. Fox, Trustee 13,480 (3) 13,480 -0- -0-
of the Henry Gift Trust
Michael E. Fox, Trustee 6,740 (3) 6,740 -0- -0-
of the Joast
Grandchildren Gift Trust
Michael E. Fox & Donald R. 22,467 (3) 22,467 -0- -0-
Dann, Trustees of the
R.J. Gift Trust
Michael E. Fox & Donald R. 22,467 (3) 22,467 -0- -0-
Dann, Trustees of the
Jerrod Gift Trust
Michael E. Fox & Donald R. 22,467 (3) 22,467 -0- -0-
Dann, Trustees of
the Molly Gift Trust
Michael E. Fox & Donald R. 16,850 (3) 16,850 -0- -0-
Dann, Trustees of the
Melman Grandchildren
Gift Trust
Carol V. Tormey and 21,843 (3) 21,843 -0- -0-
Elizabeth Buerckholtz,
Trustees of the
Griffin Tormey Trust
Carol V. Tormey and 21,843 (3) 21,843 -0- -0-
Elizabeth Buerckholtz,
Trustees of the
Clay Tormey Trust
Alma Centioli 4,975 (3) 4,975 -0- -0-
Joel Chestler and Lynn 9,951 (3) 9,951 -0- -0-
Chestler as Joint
Tenants with Right of
Survivorship
David Contis 2,487 (3) 2,487 -0- -0-
Donald R. Dann, Trustee 4,975 (3) 4,975 -0- -0-
of the Donald R. Dann
Insurance Trust
James C. Dowdle 2,487 (3) 2,487 -0- -0-
W. C. Floersch, Custodian 4,975 (3) 4,975 -0- -0-
for the William C.
Floersch Profit Sharing
Plan
Bernard Fox and Frances 7,463 (3) 7,463 -0- -0-
Kriaris, as Joint
Tenants with Right of
Survivorship
Steven Stone 7,463 (3) 7,463 -0- -0-
Michael E. Fox & Karen A. 1,661 (3) 1,661 -0- -0-
Fox, Tenants in Common
Jerome Timm & Helen Timm 2,487 (3) 2,487 -0- -0-
as Joint Tenants with
Right of Survivorship
Karen A. Fox, as Custodian 1,661 (3) 1,661 -0- -0-
for L. Brandon Liss
Melissa J. Riback 1,656 (3) 1,656 -0- -0-
William B. Fox 1,656 (3) 1,656 -0- -0-
Christopher F. Riback 1,656 (3) 1,656 -0- -0-
Elizabeth R. Fox 1,656 (3) 1,656 -0- -0-
Suzanne Friedman 4,975 (3) 4,975 -0- -0-
Jason Friedman 2,487 (3) 2,487 -0- -0-
Albert M. Friedman, 2,487 (3) 2,487 -0- -0-
Custodian for Elise
Friedman
Orley Herron 2,487 (3) 2,487 -0- -0-
Northern Realty Group, 2,487 (3) 2,487 -0- -0-
Ltd.
Toni Kukoc 2,487 (3) 2,487 -0- -0-
Benton C. Strauss, 3,731 (3) 3,731 -0- -0-
Trustee of the Paul C.
Krouse Grantor Retained
Annuity Trust
Alan Ladin 2,487 (3) 2,487 -0- -0-
Daniel Levin 2,487 (3) 2,487 -0- -0-
Andrew MacPhail 2,487 (3) 2,487 -0- -0-
Moo Partners 9,951 (3) 9,951 -0- -0-
William Marovitz 4,975 (3) 4,975 -0- -0-
Andrew McKenna 4,975 (3) 4,975 -0- -0-
John Mengelt 2,487 (3) 2,487 -0- -0-
Robert Moran 2,487 (3) 2,487 -0- -0-
William Raffel & Kathleen 2,487 (3) 2,487 -0- -0-
Waltz, Joint Tenants
with Right of Survivorship
John A. Wing 2,487 (3) 2,487 -0- -0-
Bernard B. Rinella & Gloria 2,487 (3) 2,487 -0- -0-
Rinella, Joint Tenants
with Right of Survivorship
Joel Zimberoff 2,487 (3) 2,487 -0- -0-
Benton C. Strauss, Trustee 3,731 (3) 3,731 -0- -0-
of the Ann W. Krouse
Grantor Retained Annuity
Trust
(1) Assumes that all of the Shares are sold.
(2) Assuming all of the Shares acquired pursuant to the Acquisition were
sold, such Selling Stockholder would own less than 1% of the Company's
Common Stock.
(3) Less than 1%.
(4) Mr. Centioli is a director of the Company and serves as the Senior Vice
President--Maggiano's/Corner Bakery President. Of the shares indicated,
2,000 shares are owned by trusts for benefit of Mr. Centioli's children.
Messrs. Melman, Centioli, Swinghamer, Haskell, Joast, Wattel, Tormey,
Wolfgram and Jonathan Fox must sell their Shares acquired in the Acquisition
in accordance with certain contractual volume limitations. In any year during
the three-year period commencing on August 29, 1995, Messrs. Melman, Centioli,
Swinghamer, Tormey, Wolfgram and Fox have agreed not to sell (whether pursuant
to this registration statement or otherwise) more than one-third of the Shares
offered hereby. In any year during the two-year period commencing on August
29, 1995, Messrs. Haskell, Joast and Wattel have agreed not to sell (whether
pursuant to this registration statement or otherwise) more than one-half of
the Shares offered hereby.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 250,000,000
shares of Common Stock, $0.10 par value, and 1,000,000 shares of Preferred
Stock, $1.00 par value. At December 27, 1995, there were 76,617,908 shares of
Common Stock of the Company outstanding and no shares of Preferred Stock
outstanding.
Common Stock. All outstanding shares of Common Stock are fully paid and
nonassessable. All holders of Common Stock have full voting rights and are
entitled to one vote for each share held of record on all matters submitted to
a vote of the stockholders. Votes may not be cumulated in the election of
directors. Stockholders have no preemptive or subscription rights. The
Common Stock is neither redeemable nor convertible, and there are no sinking
fund provisions. Holders of Common Stock are entitled to dividends when and
as declared by the Board of Directors from funds legally available therefor
and are entitled, in the event of liquidation, to share ratably in all assets
remaining after payment of liabilities. The rights of holders of Common Stock
will be subject to any preferential rights of any Preferred Stock which may be
issued in the future.
Preferred Stock. The Board of Directors of the Company is authorized to
issue Preferred Stock in one or more series and to fix the voting rights,
liquidation preferences, dividend rates, conversion rights, redemption rights
and terms, including sinking fund provisions, and certain other rights and
preferences.
Transfer Agent and Registrar. Chemical Mellon Shareholder Services
Group, Inc. is the transfer agent and registrar of the Company's Common Stock.
LEGAL OPINIONS
The validity of the shares of Common Stock offered hereby has been
passed upon by Crouch & Hallett, L.L.P., Dallas, Texas.
EXPERTS
The consolidated financial statements of Brinker International, Inc. and
subsidiaries as of June 28, 1995 and June 29, 1994, and for each of the years
in the three-year period ended June 28, 1995, have been incorporated by
reference herein and in the registration statement in reliance upon the report
of KPMG Peat Marwick LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as
experts in accounting and auditing. To the extent that KPMG Peat Marwick LLP
audits and reports on the consolidated financial statements of Brinker
International, Inc. and subsidiaries issued at future dates, and consents to
the use of their report thereon, such consolidated financial statements also
will be incorporated by reference in the registration statement in reliance
upon their report and said authority.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following expenses incurred in connection herewith will be paid by
the Selling Stockholders:
Item Amount (1)
SEC registration fee $ 20,000
Legal fees and expenses 5,000
Accounting fees 3,000
Miscellaneous 2,000
Total $ 30,000
________
(1) All items other than SEC registration fee are estimated.
Item 15. Indemnification of Directors and Officers.
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, Section 2 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 16. Exhibits.
3(a) --Articles of Incorporation of the registrant. (1)
3(b) --Bylaws of the registrant. (1)
5 --Opinion of Crouch & Hallett, L.L.P. (2)
23(a)--Consent of KPMG Peat Marwick LLP. (2)
23(b)--Consent of Crouch & Hallett, L.L.P.
(included in opinion filed as Exhibit 5).
25 --Power of Attorney (included on p. II-4).
________________
(1) Filed as an exhibit to Annual Report on Form 10-K for the fiscal year
ended June 28, 1995.
(2) Filed herewith.
Item 17. Undertakings.
(a) The registrant hereby undertakes (1) to file, during any period in
which offers or sales are being made of the Shares registered hereby, a
post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material change to such
information in this Registration Statement; (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; and
(3) to remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(b) The registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Company's
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to 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 herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
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 foregoing provisions 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 Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 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 11th day of January, 1996.
BRINKER INTERNATIONAL, INC.
By: /Debra L. Smithart
Debra L. Smithart, Executive Vice President
and Chief Financial Officer
POWER OF ATTORNEY
Each of the undersigned hereby appoints Ronald A. McDougall and Debra L.
Smithart, and each of them (with full power to act alone), as attorneys and
agents for the undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with the Securities
and Exchange Commission under the Securities Act of 1933 any and all
amendments and exhibits to this Registration Statement and any and all
applications, instruments and other documents to be filed with the Securities
and Exchange Commission pertaining to the registration of the securities
covered hereby, with full power and authority to do and perform any and all
acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on January 11, 1996.
Signature Title
/Ronald A. McDougall President, Chief Executive
Ronald A. McDougall Officer and Director
(Principal Executive Officer)
/Debra L. Smithart Executive Vice President, Chief
Debra L. Smithart Financial Officer and Director (Principal
Financial and Accounting Officer)
/Norman E. Brinker Chairman of the Board
Norman E. Brinker
/F. Lane Cardwell, Jr. Director
F. Lane Cardwell, Jr.
/Creed L. Ford, III Director
Creed L. Ford, III
Director
Gerard V. Centioli
Director
Jack W. Evans, Sr.
Director
Rae F. Evans
Director
J. M. Haggar, Jr.
Director
J. Ira Harris
Director
Frederick S. Humphries
/James E. Oesterreicher Director
James E. Oesterreicher
/Roger T. Staubach Director
Roger T. Staubach
EXHIBIT 5
January 10, 1996
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"), and certain stockholders of the Company (the
"Selling Stockholders") in connection with the Registration Statement on Form
S-3 covering the sale from time to time by the Selling Stockholders of a
maximum of 3,999,957 shares (the "Shares") of Common Stock, $.10 par value, of
the Company.
We have examined such documents and questions of law as we have deemed
necessary to render the opinion expressed below. Based upon the foregoing, we
are of the opinion that the Shares are duly and validly issued, fully paid and
non-assessable.
We consent to the use of this opinion as Exhibit 5 to the Registration
Statement.
Very truly yours,
/Crouch & Hallett, L.L.P.
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 and to
the reference to our firm under the heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
/KPMG Peat Marwick
Dallas, Texas
January 8, 1996
