-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LsToj7uDb+ZHYNfRLH6kTgWal9ruY3SYZLSjGAi22GhRPKI8402Px2LxSsqCxAOt 4JlWT4F6+QlRv8k5y/0Zyw== 0000853665-96-000040.txt : 19961216 0000853665-96-000040.hdr.sgml : 19961216 ACCESSION NUMBER: 0000853665-96-000040 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19961213 EFFECTIVENESS DATE: 19961213 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: APPLEBEES INTERNATIONAL INC CENTRAL INDEX KEY: 0000853665 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 431461763 STATE OF INCORPORATION: DE FISCAL YEAR END: 1225 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-17825 FILM NUMBER: 96680528 BUSINESS ADDRESS: STREET 1: 4551 W 107TH ST STE 100 CITY: OVERLAND PARK STATE: KS ZIP: 66207 BUSINESS PHONE: 9139674000 MAIL ADDRESS: STREET 1: 4551 W 107TH STREET STREET 2: SUITE 100 CITY: OVERLAND PARK STATE: KS ZIP: 66207 S-8 1 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on December 13, 1996 Registration No. 333-______ 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, Suite 100 Overland Park, Kansas 66207 (Address, including zip code, of Registrant's principal executive offices) APPLEBEE'S INTERNATIONAL, INC. 401(k) SAVINGS PLAN AND TRUST (Full title of the Plan) Copy to: Abe J. Gustin, Jr. Shari L. Wright, Esq. Chief Executive Officer Blackwell Sanders Matheny Applebee's International, Inc. Weary & Lombardi L.C. 4551 West 107th Street, Suite 100 2300 Main Street, Suite 1100 Overland Park, Kansas 66207 Kansas City, Missouri 64108 (913) 967-4000 (816) 274-6800 (Name, address, telephone number, of agent for service) CALCULATION OF REGISTRATION FEE
Proposed Proposed Amount maximum maximum to be offering price aggregate offering Amount of Title of securities to be registered registered per share (1) price (1) registration fee ====================================== ==================== ================ ===================== ================== Common Stock, $.01 Par Value 50,000 shares $28.50 $1,425,000 $432.00 ====================================== ==================== ================ ===================== ==================
(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h), based on the average of the high and low prices of the Registrant's Common Stock as listed on the Nasdaq Stock Market on December 11, 1996. EXPLANATORY NOTE As permitted by the rules of the Securities and Exchange Commission (the "Commission"), this Registration Statement omits the information specified in Part I of Form S-8. (i) PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3: Incorporation of Documents by Reference The following documents filed with the Commission 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 for the fiscal year ended December 31, 1995. 2. The Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996, June 30, 1996 and September 29, 1996. 3. The Company's Current Report on Form 8-K as filed with the Commission on November 25, 1996. 4. The description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A effective September 27, 1989. 5. The description of the Company's Rights to purchase Series A Participating Cumulative Preferred Stock contained in the Company's Registration Statement on Form 8-A dated September 12, 1994. All documents subsequently filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), 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 Not Applicable. 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, is or at the time II-1 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. Section 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. Section 145 permits a corporation 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 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 corporation's best interest and, in the case of criminal proceedings, he had no reasonable cause to believe that his conduct was illegal. The corporation may indemnify officers and directors in derivative actions (in which suit is brought by a shareholder on behalf of the corporation) 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 corporation. If the officer or director is successful on the merits or otherwise in defense of any action referred to above, the corporation 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 Certificate of 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 Robert T. Steinkamp, counsel to the Company. 23.1 Consent of Robert T. Steinkamp (included in Exhibit 5). 23.2 Consent of Deloitte & Touche LLP. II-2 23.3 Consent of Arthur Andersen LLP. 23.4 Consent of Coopers & Lybrand L.L.P. 24 See Page II-5 of Registration Statement for Power of Attorney. The Company hereby undertakes that it has submitted or will submit the Plan and any amendment thereto to the Internal Revenue Service ("IRS") in a timely manner and has made or will make all changes required by the IRS in order to qualify the Plan. Item 9: Undertakings Rule 415 Offering. The 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 (the "Securities Act"); (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; (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 by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, 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. Incorporation of Subsequent Exchange Act Documents by Reference. The Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the Registration Statement shall be deemed to be a new registration II-3 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. Form S-8 Registration Statement. Insofar as indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Compnay 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 December 13, 1996. APPLEBEE'S INTERNATIONAL, INC. By: /s/ Abe J. Gustin, Jr. ------------------------ Abe J. Gustin, Jr. Chairman and Chief Executive Officer POWER OF ATTORNEY KNOWN TO ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Abe J. Gustin, Jr. and Robert T. Steinkamp, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them or their 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 on December 13, 1996. Signature Title Date /s/ Abe J. Gustin, Jr. Chairman of the Board, December 13, 1996 - ----------------------- Chief Executive Abe J. Gustin, Jr. Officer and Director (Principal Executive Officer) /s/ George D. Shadid Executive Vice President and December 13, 1996 - ----------------------- Chief Financial Officer George D. Shadid (Principal Financial Officer) /s/ Mark A. Peterson Vice President and Controller December 13, 1996 - ----------------------- (Principal Accounting Officer) Mark A. Peterson II-5 /s/ D. Patrick Curran Date: December 13, 1996 - ----------------------- D. Patrick Curran Director /s/ Eric L. Hansen Date: December 13, 1996 - ----------------------- Eric L. Hansen Director /s/ Jack P. Helms Date: December 13, 1996 - ----------------------- Jack P. Helms Director /s/ Kenneth D. Hill Date: December 13, 1996 - ----------------------- Kenneth D. Hill Director /s/ Lloyd L. Hill Date: December 13, 1996 - ----------------------- Lloyd L. Hill Director /s/ Robert A. Martin Date: December 13, 1996 - ----------------------- Robert A. Martin Director /s/ Johyne H. Reck Date: December 13, 1996 - ----------------------- Johyne H. Reck Director /s/ Burton M. Sack Date: December 13, 1996 - ----------------------- Burton M. Sack Director /s/ Raymond D. Schoenbaum Date: December 13, 1996 - ----------------------- Raymond D. Schoenbaum Director II-6 EXHIBIT INDEX EXHIBIT NUMBER Description of Exhibit 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 Certificate of 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 Robert T. Steinkamp, counsel to the Company. 23.1 Consent of Robert T. Steinkamp (included in Exhibit 5). 23.2 Consent of Deloitte & Touche LLP. 23.3 Consent of Arthur Andersen LLP. 23.4 Consent of Coopers & Lybrand L.L.P. 24 See Page II-5 of Registration Statement for Power of Attorney. EX-5 2 OPINION OF ROBERT T. STEINKAMP EXHIBIT 5 [Applebee's letterhead] December 13, 1996 Applebee's International, Inc. 4551 West 107th Street, Suite 100 Overland Park, Kansas 66207 Gentlemen: I refer to the Registration Statement of Applebee's International, Inc. (the "Company") on Form S-8 to be filed with the Securities and Exchange Commission for the purpose of registering under the Securities Act of 1933, as amended, 50,000 shares of the Company's Common Stock, $.01 par value (the "Common Stock"), to be issued under the Applebee's International, Inc. 401(k) Savings Plan and Trust (the "Plan"). I am familiar with the proceedings to date with respect to such proposed sale and have examined such records, documents and matters of law and satisfied myself as to such matters of fact as I have considered relevant for the purposes of this opinion. Based upon the foregoing, it is my opinion that the 50,000 shares of Common Stock to be issued under the Plan have been duly authorized, and, when purchased in accordance with the Plan, will be legally issued, fully paid and non-assessable. I hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement. Very truly yours, /s/ Robert T. Steinkamp ------------------------- Robert T. Steinkamp Vice President/General Counsel EX-23.2 3 CONSENT OF DELOITTE & TOUCHE LLP EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Applebee's International, Inc. on Form S-8 of our report dated February 23, 1996, appearing in the Annual Report on Form 10-K of Applebee's International, Inc. for the fiscal year ended December 31, 1995. DELOITTE & TOUCHE LLP Kansas City, Missouri December 12, 1996 EX-23.3 4 CONSENT OF ARTHUR ANDERSEN LLP EXHIBIT 23.3 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement of our report dated March 22, 1995, included in Form 10-K of Applebee's International, Inc. for the fiscal year ended December 31, 1995. ARTHUR ANDERSEN LLP Atlanta, Georgia December 12, 1996 EX-23.4 5 CONSENT OF COOPERS & LYBRAND L.L.P. EXHIBIT 23.4 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this Registration Statement No. _______ of Applebee's International, Inc. on Form S-8 to register 50,000 shares of the Company's Common Stock to be issued under the Applebee's International, Inc. 401(k) Savings Plan and Trust of our report dated January 29, 1994 appearing in the Annual Report on Form 10-K of Applebee's International, Inc. for the year ended December 31, 1995 (related to the financial statements of Pub Ventures of New England, Inc. for the year ended December 31, 1993, not presented separately therein). Coopers & Lybrand L.L.P. Boston, Massachusetts December 12, 1996 -----END PRIVACY-ENHANCED MESSAGE-----