As filed with the Securities and Exchange Commission on May 16, 2005
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. EMPLOYEE STOCK PURCHASE PLAN
APPLEBEE'S INTERNATIONAL, INC. AMENDED AND RESTATED 1995 EQUITY INCENTIVE 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
Plaza Colonnade
4801 Main Street, Suite 1000
Kansas City, Missouri 64112
(816) 983-8000
CALCULATION OF REGISTRATION FEE
------------------------------------------------ ------------------ ------------------- ------------------ ------------------
Proposed maximum Proposed maximum
Amount to be offering price aggregate Amount of
Title of securities to be registered registered (1) per share (2) offering price registration fee
------------------------------------------------ ------------------ ------------------- ------------------ ------------------
Common Stock, par value $.01 per share 4,500,000 $ 25.38 $ 114,210,000 $ 13,442.52
------------------------------------------------ ------------------ ------------------- ------------------ ------------------
(1) The 4,500,000 shares of Common Stock being registered is comprised of
500,000 shares issuable under the Employee Stock Purchase Plan and
4,000,000 shares issuable under the Amended and Restated 1995 Equity
Incentive Plan and represents increases under the respective Plans
approved at the Registrant's most recent annual stockholders' meeting
held on May 12, 2005. This Registration Statement shall also be deemed
to cover any additional shares of Common Stock that may be issued under
the Employee Stock Purchase Plan or Amended and Restated 1995 Equity
Incentive 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 10, 2005.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
As permitted by the rules of the United States Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended, this
Registration Statement omits the information specified in Part I of Form S-8.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Commission by the Company are
incorporated in this Registration Statement on Form S-8 by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 26, 2004;
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 27, 2005;
3. All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended, since December 26,
2004, except for information furnished under Current Reports on
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,
and any further amendment or report filed for the purpose of
updating such description.
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. Ms.
Tilden owns 1,278 shares of Common Stock and holds unvested options to purchase
39,749 shares of Common Stock.
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 the Delaware General Corporation Law (the "DGCL") and
against any and all liabilities, expenses, judgments, settlements, fines,
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damages, penalties and costs incurred in connection with any threatened,
pending, actual or completed inquiry, interview, investigation, action, suit,
arbitration or other proceeding, whether civil, criminal, administrative or any
other type 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
knowing misconduct.
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, administrative,
investigative or appellate) 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 interests and, in the case of criminal proceedings, had no
reasonable cause to believe that his conduct was unlawful. 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 to the Company in the performance of his duties to the
Company. If an 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 capacity as such.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4.1 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).
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).
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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 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.
(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,
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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 16, 2005.
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 Chief May 16, 2005
------------------------------------ Executive Officer
Lloyd L. Hill (Principal Executive Officer)
/s/ Steven K. Lumpkin Director, Executive Vice President, Chief May 16, 2005
------------------------------------ Financial Officer and Treasurer
Steven K. Lumpkin (Principal Financial Officer)
/s/ Beverly O. Elving Vice President and Controller May 16, 2005
------------------------------------ (Principal Accounting Officer)
Beverly O. Elving
/s/ Erline Belton Director May 16, 2005
------------------------------------
Erline Belton
/s/ Douglas R. Conant Director May 16, 2005
------------------------------------
Douglas R. Conant
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/s/ D. Patrick Curran Director May 16, 2005
------------------------------------
D. Patrick Curran
/s/ Eric L. Hansen Director May 16, 2005
------------------------------------
Eric L. Hansen
/s/ Jack P. Helms Director May 16, 2005
------------------------------------
Jack P. Helms
/s/ Burton M. Sack Director May 16, 2005
------------------------------------
Burton M. Sack
/s/ Michael A. Volkema Director May 16, 2005
------------------------------------
Michael A. Volkema
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Index of Exhibits
Exhibit
Number Document
4.1 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).
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).
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