3
As filed with the Securities and Exchange Commission on May 21, 2004
Registration No. 333-____
_
________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
THE STEAK N SHAKE COMPANY
(Exact name of registrant as specified in its charter)
INDIANA 37-0684070
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
500 CENTURY BUILDING
36 SOUTH PENNSYLVANIA STREET
INDIANAPOLIS, IN 46204
(317) 633-4100
(Address, including zip code and telephone number, including
area code of registrant's principal executive offices)
AMENDED AND RESTATED 1997 CAPITAL APPRECIATION PLAN
2000 DIRECTOR STOCK OPTION PLAN
2002 DIRECTOR STOCK OPTION PLAN
2003 DIRECTOR STOCK OPTION PLAN
2004 DIRECTOR STOCK OPTION PLAN
(Full Title of the Plans)
DAVID C. MILNE
GENERAL COUNSEL AND SECRETARY
THE STEAK N SHAKE COMPANY
36 SOUTH PENNSYLVANIA STREET
INDIANAPOLIS, IN 46204
(Name and address of agent for service)
(317) 633-4100
(Telephone number, including area code, of agent for service)
Copy to:
DAVID C. WORRELL
BAKER & DANIELS
300 N. MERIDIAN STREET
INDIANAPOLIS, IN 46204
(317) 237-0300
CALCULATION OF REGISTRATION FEE
TITLE OF EACH CLASS OF. . . . . AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED . . REGISTERED (1) OFFERING PRICE PER UNIT (2) AGGREGATE OFFERING PRICE (2) REGISTRATION FEE
------------------------------- -------------- ---------------------------- ----------------------------- -----------------
Common Stock, $.50 stated value 640,500 $17.38 $11,131,890 $1,410.41
------------------------------- -------------- ---------------------------- ----------------------------- -----------------
Preferred Stock Purchase Rights (3) (3) (3) (3)
(1) Together with an indeterminate number of additional shares which may be necessary to adjust their number of shares
reserved for the issuance pursuant to the Steak n Shake Amended and Restated 1997 Capital Appreciation Plan, the 2000 Director
Stock Option Plan, the 2002 Director Stock Option Plan, the 2003 Director Stock Option Plan, and the 2004 Director Stock Option
Plan (the "Plans") as a result of a stock split, stock dividend or similar adjustment of the outstanding Common Stock pursuant
to Rule 416(a).
(2) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h) under the
Securities Act of 1933, based upon the average of the high and low sale prices reported on the NYSE for May 17, 2004.
(3) This Registration Statement also covers rights to purchase shares of Series A Preferred Stock, no stated value, which
are attached to and trade with the Common Stock. No additional consideration will be received by the Registrant for the rights
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The shares of common stock being registered consist of the following:
Amended and Restated 1997 Capital Appreciation Plan - 500,000; 2000 Director
Stock Option Plan - 16,500; 2002 Director Stock Option Plan - 35,000; 2003
Director Stock Option Plan - 46,000; 2004 Director Stock Option Plan - 43,000.
The documents containing the information specified in Part I of this
Registration Statement on Form S-8 will be sent or given to participants in the
plan as specified under Rule 428(b)(1) under the Securities Exchange Act of
1933, as amended (the "Securities Act"). Such documents are not required to be,
and are not being, filed by The Steak n Shake Company (the "Company" or
"Registrant") with the Securities and Exchange Commission (the "Commission"),
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act. Such documents,
together with the documents incorporated by reference herein pursuant to Item 3
of Part II of this Registration Statement on Form S-8, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the company with the Commission are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
September 24, 2003.
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended
December 17, 2003 and April 7, 2004.
(c) The Company's Current Reports on Form 8-K filed with the Commission on
November 12, 2003, January 20, 2004, February 12, 2004 and May 4, 2004.
(d) The description of the Company's Common Stock that is contained in its
Registration Statement on Form 8-A filed under Section 12 of the Securities
Act, on May 21, 1997, including any amendments or reports filed for the
purpose of updating such description.
(e) The description of the Company's preferred stock purchase rights that is
contained in its Registration Statement on Form 8-A filed under Section 12
of the Securities Act, on May 17, 2001, including any amendment or report
filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the filing of this Registration
Statement and prior to the filing of a post-effective amendment, which indicates
that all of the securities offered hereby have been sold or which deregisters
all such securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be part hereof from the date of
filing of those documents. 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 Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Indiana Business Corporation Law ("BCL"), the provisions of which
govern the Registrant, empowers an Indiana corporation to indemnify present and
former directors, officers, employees or agents or any person who may have
served at the request of the corporation as a director, officer, employee or
agent of another corporation ("Eligible Persons") against liability incurred in
any proceeding, civil or criminal, in which the Eligible Person is made a party
by reason of being or having been in any such capacity or arising out of his
status as such, if the individual acted in good faith and reasonably believed
that (a) the individual was acting in the best interests of the corporation, (b)
if the challenged action was taken other than in the individual's official
capacity as an officer, director, employee or agent, the individual's conduct
was at least not opposed to the corporation's best interests, or (c) if a
criminal proceeding, either the individual had reasonable cause to believe his
or her conduct was lawful or no reasonable cause to believe his or her conduct
was unlawful.
The BCL further empowers a corporation to pay or reimburse the reasonable
expenses incurred by an Eligible Person in connection with the defense of any
such claim including counsel fees, and, unless limited by its Articles of
Incorporation, the corporation is required to indemnify an Eligible Person
against reasonable expenses if he or she is wholly successful in any such
proceeding, on the merits or otherwise. Under certain circumstances, a
corporation may pay or reimburse an Eligible Person for reasonable expenses
prior to final disposition of the matter. Unless a corporation's Articles of
Incorporation otherwise provide, an Eligible Person may apply for
indemnification to a court which may order indemnification upon a determination
that the Eligible Person is entitled to indemnification in view of all the
relevant circumstances without regard to whether his or her actions satisfied
the appropriate standard of conduct.
Before a corporation may indemnify any Eligible Person against liability or
reasonable expenses under the BCL, a quorum consisting of directors who are not
parties to the proceeding must (1) determine that indemnification is permissible
in the specific circumstances because an Eligible Person met the requisite
standard of conduct, (2) authorize the corporation to indemnify the Eligible
Person and (3) if appropriate, evaluate the reasonableness of expenses for which
indemnification is sought. If it is not possible to obtain a quorum of
uninvolved directors, the foregoing action may be taken by a committee of two or
more directors who are not parties to the proceeding, special legal counsel
selected by the Board of Directors or such a committee, or by the shareholders
of the corporation.
In addition to the foregoing, the BCL states that the indemnification it
provides shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any provision of the Articles of
Incorporation, bylaws, resolution or other authorization adopted, after notice
by a majority vote of all the voting shares then issued and outstanding. The
BCL also empowers an Indiana corporation to purchase and maintain insurance on
behalf of any Eligible Person against any liability asserted against or incurred
by him or her in any capacity as such, or arising out of his or her status as
such, whether or not the corporation would have had the power to indemnify him
or her against such liability.
The Amended and Restated Articles of Incorporation and the Bylaws of the
Registrant contain provisions pursuant to which the officers and directors of
the Registrant are entitled to indemnification as a matter of right against
expenses and liabilities incurred by them by reason of their having acted in
such capacities if such person has been wholly successful in the defense of such
claims or acted in good faith in what he or she reasonably believed to be in or
not opposed to the best interests of the Registrant. Such rights are not
exclusive of any other rights of indemnification to which such persons may be
entitled by contract or a matter of law.
The Registrant maintains directors' and officers' liability insurance, the
effect of which is to indemnify the directors and officers of the Registrant and
its subsidiaries against certain losses caused by errors, misleading statements,
wrongful acts, omissions, neglect or breach of duty by them of any matter
claimed against them in their capacities as directors or officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Index to Exhibits.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933.
(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 therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for the 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 (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 this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act 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.
S-2
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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Indianapolis, State of Indiana, on May 21, 2004.
THE STEAK N SHAKE COMPANY
By:/s/ David C. Milne
---------------------
David C. Milne
General Counsel and Secretary
POWER OF ATTORNEY
Each person whose signature appears below on this registration statement
hereby constitutes and appoints David C. Milne, with full power to act as his or
her true and lawful attorney-in-fact and agent, 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 (unless revoked in writing), to sign any and all
amendments to the Registrant's Form S-8 Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting to such attorney-in-fact
and agent 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 and could do in person, hereby
ratifying and confirming all that such attorney-in-fact and agent or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
as of May 21, 2004.
SIGNATURE TITLE
--------- -----
/s/ Alan B. Gilman Chairman
---------------------
Alan B. Gilman
/s/ Jeffrey A. Blade Senior Vice President
----------------------- (Principal Financial and Accounting Officer)
Jeffrey A. Blade
/s/ Peter M. Dunn President and Chief Executive Officer
-------------------- (Principal Executive Officer)
Peter M. Dunn
/s/ Stephen Goldsmith Director
-----------------------
Stephen Goldsmith
/s/ Wayne L. Kelley Director
----------------------
Wayne L. Kelley
/s/ Charles E. Lanham Director
------------------------
Charles E. Lanham
/s/ Ruth J. Person Director
---------------------
Ruth J. Person
/s/ J. Fred Risk Director
-------------------
J. Fred Risk
/s/ John W. Ryan Director
-------------------
John W. Ryan
/s/ James Williamson Jr. Director
---------------------------
James Williamson Jr.
THE STEAK N SHAKE COMPANY
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
------------ ------------------------
4.1 Amended and Restated Articles of Incorporation of The Steak n Shake
Company, filed March 27, 2002. (Incorporated by reference to the Registrant's
definitive Proxy Statement dated December 19, 2001 related to the 2002 Annual
Meeting of Shareholders).
4.2 Restated Bylaws of The Steak n Shake Company as of May 16,2001.
(Incorporated by reference to Exhibit 3.08 to the Registrant's Annual Report on
Form 10-K for the year ended September 26, 2001).
4.3 Specimen certificate for Common Stock of The Steak n Shake Company
(formerly Consolidated Products, Inc.). (Incorporated by reference to Exhibit
4.01 to the Registrant's Form 10-Q Report for the fiscal quarter ended April 11,
2001.)
4.4 Rights Agreement dated as of May 16, 2001 between The Steak n Shake
Company and Computershare Investor Services, LLC, as Rights Agent.
(Incorporated by reference to Exhibit 4.01 to the Registrant's Form 8-K Report
filed May 17, 2001.)
4.5 The Steak n Shake Company Amended and Restated 1997 Capital
Appreciation Plan. (Incorporated by reference to Appendix B to the Registrant's
definitive Proxy Statement dated December 19, 2003, related to the 2004 Annual
Meeting of Shareholders).
4.6 Form of option agreement related to 2000 Non-employee Director
Stock Option Program and schedule relating thereto. (Incorporated by reference
to Exhibit 10.22 to the Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended July 5, 2000).
4.7 Form of option agreement related to 2002 Non-employee Director
Stock Option Program and schedule relating thereto. (Incorporated by reference
to Exhibit 10.14 to the Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended December 19, 2001).
4.8 The Steak n Shake Company's 2003 Director Stock Option Plan.
(Incorporated by reference to Exhibit 10.12 to the Registrant's Annual Report on
Form 10-K for the year ended September 24, 2003).
4.9 The Steak n Shake Company's 2004 Director Stock Option Plan.
(Incorporated by reference to Appendix C to the Registrant's definitive Proxy
Statement dated December 19, 2003, relating to the 2004 Annual Meeting of
Shareholders).
5.1 Opinion of Baker & Daniels.
23.1 Consent of Baker & Daniels (Included as part of Exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Ernst & Young LLP.
24.1 Power of Attorney (See Signature Page).
Exhibit 5.1
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BAKER & DANIELS
300 NORTH MERIDIAN STREET, SUITE 2700
INDIANAPOLIS, INDIANA 46204
TEL: (317) 237-0300 FAX: (317) 237-1000
May 21, 2004
The Steak n Shake Company
500 Century Building
36 South Pennsylvania Street
Indianapolis, IN 46204
Re: Registration Statement on Form S-8
--------------------------------------
Ladies and Gentlemen:
We have acted as counsel to The Steak n Shake Company, an Indiana
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission (the "Commission") of the Company's
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), registering the offer and sale
of an aggregate of 640,500 shares (the "Shares") of the Company's common stock,
$0.50 stated value, and the related preferred stock purchase rights (the
"Rights," and collectively with the Shares, the "Securities"), pursuant to the
Company's Amended and Restated 1997 Capital Appreciation Plan, the 2000 Director
Stock Option Plan, the 2002 Director Stock Option Plan, the 2003 Director Stock
Option Plan and the 2004 Director Stock Option Plan (collectively, the "Plans").
We have examined the Registration Statement, the Amended and Restated
Articles of Incorporation and Restated By-Laws of the Company, minutes of the
proceedings of the Company's Board of Directors authorizing the issuance of the
Securities, and such other documents as we have considered necessary. We have
also examined a Certificate of Secretary of the Company dated the date hereof
(the "Certificate"). In such examination, we have assumed, without independent
investigation, the genuineness of all signatures, the legal capacity of all
individuals who have executed any of the aforesaid documents, the authenticity
of all documents submitted to us as originals, the conformity with originals of
all documents submitted to us as copies (and the authenticity of the originals
of such copies), and that all public records reviewed are accurate and complete.
As to factual matters, we have relied on the certifications, statements or
representations of the Company (including the Certificate) and have not
independently verified the matters stated therein.
For purposes of this opinion, we have assumed that the Shares will be
issued in accordance with the terms of the Plans and any shares of Series A
Preferred Stock issued upon exercise of the Rights will be issued in accordance
with the Company's Amended and Restated Articles of Incorporation and Rights
Agreement.
Based on the foregoing, we are of the opinion that the Securities have been
duly authorized and, when the Securities have been issued in accordance with the
Plans, the Securities will be validly issued, fully paid and non-assessable.
This opinion letter is solely for the use of the Company in connection with
the Registration Statement. This opinion may not be relied on by any other
person or in any other connection without our prior written approval. This
opinion is limited to the matters set forth herein, and no other opinion should
be inferred beyond the matters expressly stated.
Our opinion expressed above is limited to the federal law of the United
States and the laws of the State of Indiana.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby concede that
we are within the category of persons whose consent is required under Section 7
of the Act or the Rules and Regulations of the Commission thereunder.
Very truly yours,
/s/ Baker & Daniels
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated November 20, 2003, incorporated by reference in the
Annual Report on Form 10-K of The Steak n Shake Company for the year ended
September 24, 2003.
/s/ Deloitte & Touche LLP
Indianapolis, Indiana
May 20, 2004
EXHIBIT 23.3
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Amended and Restated 1997 Capital Appreciation Plan, and
the 2000, 2002, 2003, and 2004 Director Stock Option Plans of The Steak n Shake
Company of our report dated December 3, 2002, with respect to the consolidated
Financial statements of The Steak n Shake Company incorporated by reference in
its Annual Report (Form 10-K) for the year ended September 24, 2003, filed
with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
May 19, 2004