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-3
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 (I.R.S. Employer
of incorporation or organization) Identification No.)
500 CENTURY BUILDING DAVID C. MILNE, GENERAL COUNSEL AND
36 SOUTH PENNSYLVANIA STREET SECRETARY
INDIANAPOLIS, INDIANA 46204 THE STEAK N SHAKE COMPANY
(317) 633-4100 500 CENTURY BUILDING
(Address, including zip code and telephone 36 SOUTH PENNSYLVANIA STREET
number, including area code of registrant's INDIANAPOLIS, INDIANA 46204
principal executive offices) (Name, address, including zip code, and
telephone number, including area code
of agent for service)
Copies to:
DAVID C. WORRELL
BAKER & DANIELS
300 N. MERIDIAN STREET
INDIANAPOLIS, INDIANA 46204
(317) 237-0300
Approximate date of commencement of proposed sale of the securities to the
public:
As determined by the selling shareholders.
If the only securities being registered on this Form are being offered
pursuant to 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 in connection with dividend or reinvestment
plans, check the following. 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 Class Proposed Maximum Proposed Maximum Amount of
of Securities Amount to be Offering price Aggregate Offering Registration
Being Registered Registered per unit (1) Price (1) Fee
---------------------------------------------------------------------------------------------
Common Stock,
$.50 stated value 53,832 shares $17.38 $935,600 $118.54
Preferred Stock
Purchase Rights (2) (2) (2) (2)
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) 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.
(2) 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 registered hereby.
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 SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
SUBJECT TO COMPLETION, DATED MAY 21, 2004
The information in this prospectus is not complete and may be changed. These
securities may not be sold 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 not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
PROSPECTUS
THE STEAK N SHAKE COMPANY
53,832 SHARES OF
COMMON STOCK
TERMS OF THE OFFERING
- Alva T. Bonda, Charles E. Lanham, J. Fred Risk, John W. Ryan and James
Williamson, Jr., some of our current and former directors, and the estate of
Neal Gilliatt, former director, are offering to sell up to 53,832 shares of our
common stock and related preferred stock purchase rights under our shareholder
rights plan. For ease of reference, in this prospectus we refer to the shares
of stock and rights offered for sale by the selling shareholders collectively as
the shares.
- The selling shareholders will receive all of the net proceeds from the sale
of the shares.
- The selling shareholders will sell the shares over time through brokers at
market prices or in negotiated transactions.
- On ________, 2004, the last reported sale price of our common stock on the
New York Stock Exchange was $ --.-- per share.
- Our common stock is traded on and price information is reported by the New
York Stock Exchange under the symbol "SNS".
- As of the date of this prospectus, none of the selling shareholders has any
agreement with any broker or dealer with respect to the sale of the shares.
THIS INVESTMENT INVOLVES RISK. SEE THE RISK FACTORS BEGINNING ON PAGE 3 OF
THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
Additional information regarding our business is available to you without charge
upon written or oral request to us. Please contact David C. Milne, General
Counsel and Secretary, by mail at The Steak n Shake Company, 500 Century
Building, 36 South Pennsylvania Street, Indianapolis, Indiana 46204, or by
telephone at (317) 633-4100.
The date of this prospectus is ____ __, 2004.
TABLE OF CONTENTS
TERMS OF THE OFFERING
RISK FACTORS 3
THE COMPANY 5
USE OF PROCEEDS 5
SELLING SHAREHOLDERS 5
PLAN OF DISTRIBUTION 8
LEGAL MATTERS 9
EXPERTS 9
WHERE YOU CAN FIND MORE INFORMATION 9
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE 9
RISK FACTORS
Certain statements contained in this prospectus and in other reports the
Company files with the Securities and Exchange Commission ("SEC") contain
forward-looking information. In general, forward-looking statements include
estimates of future revenues, cash flows, capital expenditures, or other
financial items, and assumptions underlying any of the foregoing.
Forward-looking statements reflect management's current expectations regarding
future events and use words such as "anticipate", "believe", "expect", "may",
"will", and other similar terminology. These statements speak only as of the
date they are made and involve a number of risks and uncertainties that could
cause actual results to differ materially from those expressed in the
forward-looking statements. Several factors, many beyond our control, could
cause actual results to differ significantly from our expectations. Some of
these factors are as follows:
Our ability to attract and retain guests to our restaurants is dependent upon
our ability to execute our operating initiatives effectively. If we do not
deliver an enjoyable dining experience to our guests they may not return to our
restaurants, and our results may be negatively affected.
Changes in economic conditions may impact our guests' discretionary spending.
If guests choose not to spend money on dining at our restaurants, our results
May be negatively affected.
Our unique advertising and marketing programs are an essential part of our plan
to attract and retain guests. If these programs do not continue to be as
effective at attracting guests in the future as they have been in the past, our
results may be negatively affected.
Many of our restaurants are located in the Midwest portion of the United States.
During the first and second fiscal quarters, many restaurants face harsh winter
weather conditions, which may make it more difficult for guests to visit our
restaurants. If guests are unable to visit our restaurants, our sales and
operating results may be negatively affected.
Our associates are essential to the operation of our restaurants and our ability
to deliver an enjoyable dining experience to our guests. If we are unable to
attract and retain qualified restaurant personnel at a reasonable cost, and if
they do not deliver an enjoyable dining experience, our results may be
negatively affected.
Our menu offerings include Steakburgers, chicken sandwiches, french fries, and
hand-dipped milk shakes. If consumer tastes change, or consumer behavior
changes based on publicity or concerns relating to food safety, food-borne
illnesses or changes in dietary preferences, and we are unable to meet these
changes in demand, our results may be negatively affected.
Our expansion plans are based on identifying opportunities for new restaurants
in new and existing markets. Our plans also involve identifying new franchisees
and expanding relationships with current franchisees. If the Company and its
franchisees are unable to locate suitable sites for new restaurants, negotiate
acceptable lease or purchase terms, and meet construction schedules, our
expansion plans may be negatively affected.
Many of our associates are paid wages that relate to federal and state minimum
wage rates. Any changes in minimum wage rates may significantly increase our
operating costs.
Changes in accounting standards promulgated by the SEC and the Public Company
Accounting Oversight Board and other authorities may affect our reported
Financial results.
The foregoing list of important factors is not intended to be all-inclusive as
other general market, industry, economic, and political factors may also impact
our operations. Readers are cautioned not to place undue reliance on our
forward-looking statements, which speak only as of the date of this prospectus,
as we assume no obligation to update forward-looking statements.
WE FACE SIGNIFICANT COMPETITION ON A NATIONAL AND LOCAL BASIS.
The restaurant business is one of the most intensely competitive industries
in the United States, with price, menu offerings, location and service all being
significant competitive factors. Our competitors include national, regional and
local chains as well as local, owner-operated establishments. There are
established competitors with greater financial and other resources in all of our
current and proposed future market areas. We face competition for sites on
which to locate new restaurants, as well as for personnel and guests. The
restaurant business is often affected by changes in consumer tastes and by
national, regional and local economic conditions and demographic trends. The
performance of individual restaurants may be affected by factors such as traffic
patterns, demographic factors, harsh weather conditions, and the type, number
and location of competing restaurants. Additional factors that may adversely
affect the restaurant industry in general, and our restaurants in particular,
are inflation of food, labor and associate benefit costs, and difficulty in
attracting qualified management personnel and hourly associates.
GOVERNMENTAL REGULATION AFFECTS OUR OPERATIONS IN A NUMBER OF WAYS.
We are subject to various federal, state and local laws affecting its
business. Each of our restaurants is subject to licensing and regulation by a
number of governmental authorities, including health and safety and fire
agencies in the state and municipality in which the restaurant is located. The
development and construction of restaurants is subject to compliance with
applicable zoning, land use and environmental regulations. Difficulties in
obtaining, or failure to obtain, the required licenses or approvals could delay
or prevent the development of a new restaurant in a particular area.
Our restaurant operations are also subject to federal and state minimum
wage laws and laws governing such matters as working conditions, child labor,
overtime and tip credits. Many of our restaurant associates are paid at rates
related to the federal and state minimum wage laws, and accordingly, further
increases in the minimum wage would increase our labor costs.
We currently have franchise operations in eight states -- Georgia,
Illinois, Indiana, Kentucky, Mississippi, Missouri, North Carolina and Tennessee
-- and is subject to certain federal and state laws controlling the offering and
conduct of our franchise business in those states. In addition, we are subject
to franchise registration requirements in several states in which it is now
conducting or will conduct its franchise business in the future.
OUR EXPANSION PLANS ARE SUBJECT TO RISKS, INCLUDING LOCATING ATTRACTIVE SITES
AND QUALIFIED FRANCHISEES.
We intend to continue to expand our Steak n Shake restaurants through both
opening and operating Company-owned Steak n Shake restaurants and franchising
additional restaurants with new and current franchisees. Meeting our expansion
goal is dependent upon our continued success in addressing factors relevant to
our expansion plan. Those factors include, but are not limited to:
- locating available and attractive sites for new restaurants;
- negotiating acceptable purchase or lease terms for restaurant sites;
- availability of adequate financing for our expansion;
- ability to attract qualified franchisees and the ability of franchisees to
perform their obligations to us;
- hiring, training and retaining competent managers and other personnel;
- obtaining necessary governmental permits and approvals; and
- suitable economic and business conditions in the markets in which our
restaurants are to be located.
Some of the factors on which the success of our plan depends are not within our
control.
WE DEPEND ON OUR KEY PERSONNEL.
We are dependent upon the continued availability of the services of our
executive officers. The loss of the services of key personnel could have a
material adverse effect on our business.
THE MARKET PRICE OF OUR COMMON STOCK MAY FLUCTUATE SUBSTANTIALLY.
Our quarterly operating results, those of other restaurant companies,
changes in general conditions in the economy, the financial markets, natural
disasters, terrorist activities, changes in earnings estimates or
recommendations by research analysts, or other developments affecting us, our
competitors, or the restaurant industry could cause the market price of our
common stock to fluctuate substantially. In addition, in recent years the stock
market has experienced extreme price and volume fluctuations. This volatility
has had a significant effect on the market prices of securities issued by many
companies for reasons unrelated to the operating performance of these companies.
THE COMPANY
We are primarily engaged in the ownership, operation and franchising of
Steak n Shake restaurants through our wholly-owned subsidiaries, Steak n Shake
Operations, Inc. and Steak n Shake, L.P. Founded in 1934 in Normal, Illinois,
Steak n Shake is one of the oldest restaurant chains in the country. As of
April 7, 2004, our fiscal second quarter end, we had 356 Company-owned
restaurants and 59 franchised restaurants located in 19 midwestern and
southeastern states. Steak n Shake restaurants are generally open 24 hours a
day, seven days a week, and in addition to our core menu, offer a breakfast menu
during breakfast hours. During fiscal 2003, lunch and dinner sales accounted
for approximately 36.4% and 44.4% of sales, respectively, while breakfast and
late night sales accounted for 7.1% and 12.1% of sales, respectively.
USE OF PROCEEDS
The shares being offered were issued by us to the selling shareholders
pursuant to their exercise of stock options granted to them in their capacities
as directors pursuant to our Nonemployee Director Stock Option Plans for 1998,
1999, and 2000 (the "Plans"). We will receive none of the proceeds from the
sale of the shares being offered. All proceeds from the sale will be paid to
the individual selling shareholders.
SELLING SHAREHOLDERS
The following table sets forth certain information with respect to the
selling shareholders as of the date of this prospectus. Charles E. Lanham, J.
Fred Risk, John W. Ryan and James Williamson, Jr. are currently directors of the
Company. Alva T. Bonda retired from the Board of Directors on February 9, 2000.
Neal Gilliatt died while serving as Director Emeritus of the Company in
September, 2000. Mr. Gilliatt's options may be exercised by his estate pursuant
to the terms of the Plans.
We do not know when or in what amounts the selling shareholders may offer
Shares for sale. The selling shareholders may elect not to sell any or all of
the shares offered by this prospectus. Because the selling shareholders may
offer all or some of the shares pursuant to this offering, and because there are
currently no agreements, arrangements or understandings with respect to the sale
of any of the shares that will be held by the selling shareholders after
completion of the offering, we cannot estimate the number of the shares that
will be held by the selling shareholders after completion of the offering.
However, for purposes of this table, we have assumed that, after completion of
the offering, none of the shares covered by the prospectus will be held by the
selling shareholders.
The following table sets forth, to our knowledge, information concerning
the selling shareholders as of May 7, 2004.
PERCENTAGE OWNED AFTER
SHARES REGISTERED SALE OF ALL SHARES
NAME. . . . . . . . . . SHARES OWNED HEREUNDER REGISTERED HEREUNDER (7)
----------------------- ------------ --------------------------- --------------------------------------------------------------
Alva T. Bonda 112,035 (1) 8,422 *
Estate of Neal Gilliatt 27,832 11,722 *
Charles E. Lanham 391,480 (2) 8,422 1.5%
J. Fred Risk 116,299 (3) 8,422 *
John W. Ryan 19,382 (4) 8,422 *
James Williamson, Jr. 326,752 (5) 8,422 1.3%
----------- -------- -----
Total 993,780 (6) 53,832 3.6%
=========== ======== ======
_______________
* Less than 1%.
(1) Includes 70,458 shares held by the Bonda Family Limited Partnership, and
2,000 shares held by a marital trust, with respect to which he disclaims
beneficial ownership.
(2) Includes 9,300 shares which may be acquired pursuant to stock options
exercisable within 60 days. Also includes 10,928 shares owned of record and
beneficially by Mr. Lanham's wife, with respect to which he disclaims beneficial
ownership, and 21,750 shares held by Hartford Heritage, LLC, of which Mr. Lanham
is Managing Member.
(3) Includes 9,300 shares which may be acquired pursuant to stock options
exercisable within 60 days. Also includes 7,726 shares owned of record and
beneficially by Mr. Risk's wife, with respect to which he disclaims beneficial
ownership.
(4) Includes 9,300 shares which may be acquired pursuant to stock options
exercisable within 60 days.
(5) Includes 9,300 shares which may be acquired pursuant to stock options
exercisable within 60 days. Also includes 19,011 shares owned of record and
beneficially by Mr. Williamson's wife, with respect to which he disclaims
beneficial ownership.
(6) Includes 37,200 shares which may be acquired pursuant to stock options
exercisable within 60 days.
(7) Based upon 27,455,223 total shares of common stock outstanding as of May
7, 2004, as listed on our most recent Form 10-Q for the period ended April 7,
2004, which was filed with the SEC on May 19, 2004.
PLAN OF DISTRIBUTION
TRANSACTIONS. The shares covered by this prospectus may be offered and sold from
time to time by the selling shareholders. The term "selling shareholders"
includes pledgees, donees, transferees or other successors in interest selling
shares received after the date of this prospectus from one of the selling
shareholders as a pledge, gift or other non-sale related transfer. To the
extent required, this prospectus may be amended and supplemented from time to
time to describe a specific plan of distribution. The selling shareholders may
offer and sell their shares in one or more of the following transactions:
- on the New York Stock Exchange
- in negotiated transactions or
- in a combination of any of these transactions
In addition, any shares that qualify for sale pursuant to Rule 144 under the
Securities Act of 1933 (the "Securities Act") may be sold under Rule 144 rather
than pursuant to this prospectus.
PRICES. The selling shareholders may sell their shares at any of the following
prices:
- fixed prices which may be changed
- market prices prevailing at the time of sale
- prices related to prevailing market prices or
- negotiated prices
DIRECT SALES; AGENTS, DEALERS AND UNDERWRITERS. The selling shareholders may
sell their shares in any of the following ways:
- directly to purchasers or
- to or through agents, dealers or underwriters designated from time to time
Agents, dealers or underwriters may receive compensation in the form of
underwriting discounts, concessions or commissions from the selling shareholders
and/or the purchasers of shares for whom they act as agent or to whom they sell
as principals, or both. The selling shareholders and any agents, dealers or
underwriters that act in connection with the sale of shares might be deemed to
be "underwriters" within the meaning of Section 2(11) of the Securities Act, and
any discount or commission received by them and any profit on the resale of
shares as principal might be deemed to be underwriting discounts or commissions
under the Securities Act.
We have advised the selling shareholders that the anti-manipulation rules of
Regulation M under the Securities Exchange Act of 1934 (the "Exchange Act") may
apply to sales of shares in the market and to the activities of the selling
shareholders and their affiliates. In addition, we will make copies of this
prospectus available to the selling shareholders for the purpose of satisfying
the prospectus delivery requirements of the Securities Act. The selling
shareholders may indemnify any broker-dealer that participates in transactions
involving the sale of the shares against certain liabilities, including
liabilities arising under the Securities Act.
SUPPLEMENTS. To the extent required, we will set forth in a supplement to
this prospectus filed with the SEC the number of shares to be sold, the purchase
price and public offering price, the name or names of any agent, dealer or
underwriter, and any applicable commissions or discounts with respect to a
particular offering.
STATE SECURITIES LAWS. Under the securities laws of some states, the selling
shareholders may only sell the shares in those states through registered or
licensed brokers or dealers. In addition, in some states the selling
shareholders may not sell the shares unless they have been registered or
qualified for sale in that state or an exemption from registration or
qualification is available and is satisfied.
EXPENSES; INDEMNIFICATION. We will not receive any of the proceeds from the
sale of the shares sold by the selling shareholders under this prospectus. We
will bear all expenses related to the registration of this offering but will not
pay for underwriting commissions, fees or discounts, if any. The expenses we
will pay include:
- all registration and filing fees
- all fees and expenses of complying with state blue sky or securities laws
- all costs of preparation of the registration statement
- all fees of our counsel and independent auditors
EFFECTIVENESS. We intend to keep the Registration Statement of which this
prospectus constitutes a part effective until the earlier of such time as:
- all of the shares covered by this prospectus have been disposed of
pursuant to the Registration Statement or
- all unsold shares may be sold pursuant to Rule 144 without regard to any
volume limitations.
LEGAL MATTERS
The validity of the shares offered hereby have been passed on for us by
Baker & Daniels, Indianapolis, Indiana.
EXPERTS
Our consolidated financial statements as of and for the year ended
September 24, 2003, incorporated by reference from our Annual Report on Form
10-K for the year ended September 24, 2003, have been audited by Deloitte &
Touche LLP, independent auditors, as set forth in their report, which is
incorporated herein by reference. Our consolidated financial statements as of
and for the years ended September 23, 2002 and September 26, 2001, incorporated
by reference from our Annual Report on Form 10-K for the year ended September
24, 2003, have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report, which is incorporated herein by reference. Our financial
statements are incorporated by reference in reliance on the reports of Deloitte
& Touche LLP and Ernst & Young LLP, given their authority as experts in
accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a Registration Statement with the SEC under the Securities
Act that registers the sale of the shares of the Company's common stock and the
related preferred stock purchase rights offered by this prospectus. The
Registration Statement, including the attached exhibits and schedules, contains
additional relevant information about us, the common stock and the related
preferred stock purchase rights. The rules and regulations of the SEC allow us
to omit certain information included in the Registration Statement from this
prospectus.
In addition, we file periodic reports, proxy statements and other information
with the SEC under the Exchange Act. You may read and copy this information at
the Public Reference Room of the SEC, 450 Fifth Street, N.W., 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. The SEC also maintains an Internet web
site that contains reports, proxy statements and other information about issuers
like the Company that file information electronically with the SEC. The address
of that site is: http://www.sec.gov.
------------------
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to "incorporate by reference" information into this
prospectus. This means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The
information incorporated by reference is considered to be part of this
prospectus, except for any information that is superseded by information that is
included directly in this document.
This prospectus incorporates by reference the documents listed below that we
have previously filed with the SEC. They contain important information about us
and our financial condition.
1) Annual Report on Form 10-K for the year ended September 24, 2003.
2) Definitive Proxy Statement on Schedule 14A, dated December 19, 2003.
3) Quarterly Reports on Form 10-Q for the periods ended December 17, 2003
and April 7, 2004.
4) Current Reports on Form 8-K filed on November 12, 2003, January 20, 2004,
February 12, 2004 and May 4, 2004.
5) The description of our common stock set forth in the Registration
Statement on Form 8-A, dated October 28, 1996, including any amendment or report
filed with the SEC for the purpose of updating that description.
6) The description of our preferred stock purchase rights set forth in the
Registration Statement on Form 8-A filed on May 17, 2001, including any
amendment or report filed with the SEC for the purpose of updating that
description.
In addition, all documents and reports filed by us pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
prospectus shall be deemed to be incorporated by reference in this prospectus
and to be a part hereof from the date of filing of such documents or reports.
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, 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 can obtain copies of any of the documents incorporated by reference in this
document from the SEC through its web site or at the Public Reference Room at
the address described above. Documents incorporated by reference are also
available from us without charge, excluding any exhibits to those documents
unless the exhibit is specifically incorporated by reference as an exhibit to
this prospectus. You can obtain documents incorporated by reference in this
prospectus by requesting them in writing or by telephone from us at the
following address:
David C. Milne
General Counsel and Secretary
The Steak n Shake Company
500 Century Building
36 South Pennsylvania Street
Indianapolis, Indiana 46204
Telephone: (317) 633-4100
www.steaknshake.com
WE HAVE NOT AUTHORIZED ANYONE TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATIONS ABOUT THE OFFERING MADE BY THIS PROSPECTUS THAT IS DIFFERENT
FROM, OR IN ADDITION TO, THE INFORMATION CONTAINED IN THIS PROSPECTUS OR IN ANY
OF THE MATERIALS THAT WE HAVE INCORPORATED INTO THIS DOCUMENT. THEREFORE, IF
ANYONE DOES GIVE YOU INFORMATION OF THIS SORT, YOU SHOULD NOT RELY ON IT. IF
YOU ARE IN A JURISDICTION WHERE OFFERS TO EXCHANGE OR SELL, OR SOLICITATIONS OF
OFFERS TO EXCHANGE OR PURCHASE, THE SECURITIES OFFERED BY THIS DOCUMENT OR THE
SOLICITATION OF PROXIES IS UNLAWFUL, OR IF YOU ARE A PERSON TO WHOM IT IS
UNLAWFUL TO DIRECT THESE TYPES OF ACTIVITIES, THEN THE OFFER PRESENTED IN THIS
DOCUMENT DOES NOT EXTEND TO YOU. THE INFORMATION CONTAINED IN THIS DOCUMENT
SPEAKS ONLY AS OF THE DATE OF THIS DOCUMENT UNLESS THE INFORMATION SPECIFICALLY
INDICATES THAT ANOTHER DATE APPLIES.
II-3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
------------------------------------------------------------
Set forth below are estimates of all expenses incurred or to be incurred by
the registrant in connection with the issuance and distribution of the
securities to be registered:
Registration fees $ 119
Legal fees and expenses $5,000*
Accounting fees and expenses $8,000*
---------
Total $13,119*
*Estimates
Item 15. 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 16. Exhibits.
--------------------
See Index to Exhibits on page E-1.
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) and (a)(1)(ii) shall not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in 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 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 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.
(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-3 and has duly caused this registration
statement to be signed on behalf of The Steak n Shake Company 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-3 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.
E-1
INDEX TO EXHIBITS
Exhibit Number
Assigned In
Regulation S-K
Item 601 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 Steak n Shake Company's Form
8-K Report filed May 17, 2001.)
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 Power of Attorney (See Signature Page.)
Exhibit 5.1
-----------
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
Indianapolis, Indiana 46204
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-3 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), registering the offer and sale
of up to 53,832 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") to be sold from time to time by
the selling shareholders named therein. The Shares were issued by the Company
to the selling shareholders pursuant to the exercise of stock options granted
pursuant to the Company's Nonemployee Director Stock Option Plans for 1998, 1999
and 2000 (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 were 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 upon the foregoing, we are of the opinion that the Securities have
been duly authorized and legally issued and are fully paid and nonassessable.
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 law of the State of Indiana.
We hereby consent to the filing of this opinion letter as an exhibit to the
Registration Statement and to the reference to us under the heading "Legal
Matters" in the prospectus included in the Registration Statement. In giving
our consent, we do not thereby admit that we are in 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-3 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, and to the reference to us under the heading "Experts" in
the Prospectus, which is a part of this Registration Statement.
/s/ Deloitte & Touche LLP
Indianapolis, Indiana
May 20, 2004
EXHIBIT 23.3
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of The Steak n Shake
Company for the public offering for sale of 53,832 shares of common stock and
related preferred stock purchase rights and to the incorporation by reference
therein 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