As filed with the Securities and Exchange Commission on May 20, 2004
Registration No. 333-___________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
APPLEBEE'S INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 43-1461763
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
4551 West 107th Street
Overland Park, Kansas 66207
(Address, including zip code, of Principal Executive Offices)
APPLEBEE'S INTERNATIONAL, INC.
EXECUTIVE NONQUALIFIED STOCK PURCHASE PLAN
(Full titles of the plans)
Lloyd L. Hill
Chief Executive Officer
Applebee's International, Inc.
4551 West 107th Street
Overland Park, Kansas 66207
(913) 967-4000
(Name, address and telephone number of agent for service)
Copy to:
James M. Ash, Esq.
Blackwell Sanders Peper Martin LLP
Two Pershing Square
2300 Main Street, Suite 1000
Kansas City, Missouri 64108
(816) 983-8000
CALCULATION OF REGISTRATION FEE
------------------------------------------------ ------------------ ------------------- ------------------ ------------------
Proposed maximum Proposed maximum
Title of securities to be registered Amount to be offering price aggregate Amount of
registered (1) per share (2) offering price(2) registration fee
------------------------------------------------ ------------------ ------------------- ------------------ ------------------
Common Stock, par value $.01 per share 150,000 $ 37.315 $ 5,597,250.00 $ 709.17
------------------------------------------------ ------------------ ------------------- ------------------ ------------------
(1) This Registration Statement shall also be deemed to cover any additional
shares of Common Stock which may be issued under the Executive Non-Qualified
Stock Purchase Plan as the result of any future stock split, stock dividend or
other anti-dilution provision.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933. The maximum offering
price per share is based on the average of the high and low prices of the
Registrant's Common Stock as listed on the Nasdaq Stock Market on May 17, 2004.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information about the Applebee's
International, Inc. Executive Nonqualified Stock Purchase Plan (the "Plan")
specified in Part I of Form S-8 will be sent or given to eligible employees as
specified by Rule 428(b)(1) promulgated under the Securities Act of 1933, as
amended. Such documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act
of 1933, as amended. All such documents will be dated and maintained in a
"prospectus file" as required by Rule 428(a) and will contain the following
legend in a conspicuous place as directed by Rule 428(b)(1):
"This document (or specifically designated portions of this document)
constitutes (constitute) part of a prospectus covering securities that have been
registered under the Securities Act of 1933."
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the SEC by Applebee's International,
Inc. (the "Company") are incorporated in this Registration Statement on Form S-8
(the "Registration Statement") by reference:
1. The Company's Annual Report on Form 10-K and Form 10-K/A for
the fiscal year ended December 28, 2003;
2. The Company's Quarterly Report on Form 10-Q for the quarter
ended March 28, 2004;
3. All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended, since
December 28, 2003, except for information furnished under Form
8-K, which is not deemed filed and not incorporated herein by
reference; and
4. The description of common stock contained in the Company's
Registration Statement on Form 8-A effective September 27,
1989, the description of the rights to purchase Series A
Participating Cumulative Preferred Stock contained in the
Company's Registration Statement on Form 8-A dated September
12, 1994, and any further amendment or report filed for
purpose of updating such descriptions.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereunder have been sold or which deregisters all of the
securities offered then remaining unsold, shall be deemed to be incorporated
herein by reference and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Rebecca R. Tilden, Vice President and General Counsel of the Company
will issue an opinion as to the legality of the securities registered hereunder.
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Item 6. Indemnification of Directors and Officers
The Company has entered into indemnification agreements with certain
officers and directors of the Company. Under these agreements, the Company
agrees to hold harmless and indemnify each indemnitee generally to the full
extent permitted by Section 145 of the Delaware General Corporation Law (the
"DGCL") and against any and all liabilities, expenses, judgments, fines,
penalties and costs in connection with any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative to which the indemnitee is made a party by reason of the fact that
the indemnitee has been, is at the time or becomes a director or officer of the
Company or any other entity at the request of the Company. The indemnity does
not cover liability arising out of fraudulent acts, deliberate dishonesty or
willful misconduct, violations of certain securities laws, or if a court
determines that such indemnification is not lawful.
Article IX of the Bylaws of the Company provides for the
indemnification of officers and directors of the Company generally to the extent
permitted by Section 145 of the DGCL, including liability arising under the
securities laws. Article IX permits the Company to indemnify certain persons,
including officers and directors, who are (or are threatened to be made) parties
to any threatened, pending or completed legal action (whether civil, criminal or
investigative) for reason of their being officers or directors. The indemnity
may include expenses, attorneys' fees, judgments, fines and reasonably incurred
costs of settlement, provided the officer and director acted in good faith and
in a manner he reasonably believed to be in or not opposed to the Company's best
interest and, in the case of criminal proceedings, he had no reasonable cause to
believe that his conduct was illegal. The Company may indemnify officers and
directors in derivative actions (in which suit is brought by a shareholder on
behalf of the Company) under the same conditions, except that no indemnification
is permitted without judicial approval if the officer or director is judged
liable for negligence or misconduct in the performance of his duty to the
Company. If the officer or director if successful on the merits or otherwise in
defense of any action referred to above, the Company must indemnify him against
the expenses and attorneys' fees he actually and reasonably incurred.
The Company has obtained liability insurance coverage for its officers
and directors with respect to actions arising out of the performance of such
officer's or director's duty in his or her capacity as such.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4.1 Shareholder Rights Plan contained in Rights Agreement dated as
of September 7, 1994, between Applebee's International, Inc.
and Chemical Bank, as Rights Agent (incorporated by reference
to Exhibit 4.1 of the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 25, 1994).
4.2 Amendment dated May 13, 1999 to Shareholder Rights Plan
contained in Rights Agreement dated as of September 7, 1994,
between Applebee's International, Inc. and Chemical Bank, as
Rights Agent (incorporated by reference to Exhibit 4.1 of the
Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 27, 1999).
4.3 Amendment dated December 12, 2002 to Shareholder Rights Plan
contained in Rights Agreement dated as of September 7, 1994,
between Applebee's International, Inc. and Chemical Bank, as
Rights Agent (incorporated by reference to Exhibit 4.3 of the
Registrant's Annual Report on Form 10-K for the fiscal year
ended December 29, 2002).
4.4 Certificate of Adjustment of Shareholder Rights Plan contained
in Rights Agreement dated as of September 7, 1994, between
Applebee's International, Inc. and Chemical Bank, as Rights
Agent, as amended (incorporated by reference to Exhibit 4.1 of
the Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 29, 2002).
3
4.5 Certificate of the Voting Powers, Designations, Preferences
and Relative Participating, Optional and Other Special Rights
and Qualifications of Series A Participating Cumulative
Preferred Stock of Applebee's International, Inc.
(incorporated by reference to Exhibit 4.2 of the Registrant's
Annual Report on Form 10-K for the fiscal year ended December
25, 1994).
4.6 Applebee's International, Inc. Executive Nonqualified Stock
Purchase Plan.
5 Opinion of Rebecca R. Tilden, counsel to the Company.
23.1 Consent of Rebecca R. Tilden (included in Exhibit 5).
23.2 Consent of Deloitte & Touche LLP.
24 Power of Attorney (included in signature page of Registration
Statement).
Item 9. Undertakings
The undersigned Company 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 (i) and (ii) do not apply if the registration
statement is on Form S-3, Form S-8 or Form F-3 and 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 Company
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference 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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(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.
The undersigned Company 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 therein, 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 Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Overland Park, State of Kansas, on May 18, 2004.
APPLEBEE'S INTERNATIONAL, INC.
By: /s/ Lloyd L. Hill
----------------------------------------
Lloyd L. Hill
Chairman and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and directors
of Applebee's International, Inc., hereby severally constitute Lloyd L. Hill and
Rebecca R. Tilden and each of them singly, our true and lawful attorneys with
full power to them, and each of them singly, or their duly appointed substitute,
as the same may be designated in writing from time to time, to sign for us and
in our names in the capacities indicated below, any and all amendments to this
Registration Statement on Form S-8, and generally to do all such things in our
names and in our capacities as directors to enable Applebee's International,
Inc. to comply with the provisions of the Securities Act of 1933, and all
requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or any of
them, to said Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated:
Signature Title Date
/s/ Lloyd L. Hill Director, Chairman of the Board and May 18, 2004
------------------------------------ Chief Executive Officer
Lloyd L. Hill (Principal Executive Officer)
/s/ Steven K. Lumpkin Director, Executive Vice President and May 18, 2004
------------------------------------ Chief Financial Officer
Steven K. Lumpkin (Principal Financial Officer)
/s/ Beverly O. Elving Vice President, Accounting May 18, 2004
------------------------------------ (Principal Accounting Officer)
Beverly O. Elving
/s/ Erline Belton Director May 18, 2004
------------------------------------
Erline Belton
/s/ Douglas R. Conant Director May 18, 2004
------------------------------------
Douglas R. Conant
/s/ D. Patrick Curran Director May 18, 2004
------------------------------------
D. Patrick Curran
/s/ Eric L. Hansen Director May 18, 2004
------------------------------------
Eric L. Hansen
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/s/ Mark S. Hansen Director May 18, 2004
------------------------------------
Mark S. Hansen
/s/ Jack P. Helms Director May18, 2004
------------------------------------
Jack P. Helms
/s/ Burton M. Sack Director May 18, 2004
------------------------------------
Burton M. Sack
/s/ Michael A. Volkema Director May 18, 2004
------------------------------------
Michael A. Volkema
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Index of Exhibits
Exhibit
Number Document
4.1 Shareholder Rights Plan contained in Rights Agreement dated as
of September 7, 1994, between Applebee's International, Inc.
and Chemical Bank, as Rights Agent (incorporated by reference
to Exhibit 4.1 of the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 25, 1994).
4.2 Amendment dated May 13, 1999 to Shareholder Rights Plan
contained in Rights Agreement dated as of September 7, 1994,
between Applebee's International, Inc. and Chemical Bank, as
Rights Agent (incorporated by reference to Exhibit 4.1 of the
Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 27, 1999).
4.3 Amendment dated December 12, 2002 to Shareholder Rights Plan
contained in Rights Agreement dated as of September 7, 1994,
between Applebee's International, Inc. and Chemical Bank, as
Rights Agent (incorporated by reference to Exhibit 4.3 of the
Registrant's Annual Report on Form 10-K for the fiscal year
ended December 29, 2002).
4.4 Certificate of Adjustment of Shareholder Rights Plan contained
in Rights Agreement dated as of September 7, 1994, between
Applebee's International, Inc. and Chemical Bank, as Rights
Agent, as amended (incorporated by reference to Exhibit 4.1 of
the Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 29, 2002).
4.5 Certificate of the Voting Powers, Designations, Preferences
and Relative Participating, Optional and Other Special Rights
and Qualifications of Series A Participating Cumulative
Preferred Stock of Applebee's International, Inc.
(incorporated by reference to Exhibit 4.2 of the Registrant's
Annual Report on Form 10-K for the fiscal year ended December
25, 1994).
4.6 Applebee's International, Inc. Executive Nonqualified Stock
Purchase Plan.
5 Opinion of Rebecca R. Tilden, counsel to the Company.
23.1 Consent of Rebecca R. Tilden (included in Exhibit 5).
23.2 Consent of Deloitte & Touche LLP.
24 Power of Attorney (included in signature page of Registration
Statement).
8