Attached files
| file | filename |
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| EX-2.1 - AGREEMENT AND PLAN OF MERGER - BIGLARI HOLDINGS INC. | v163536_ex2-1.htm |
| EX-99.1 - PRESS RELEASE - BIGLARI HOLDINGS INC. | v163536_ex99-1.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): October 22, 2009
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THE
STEAK N SHAKE COMPANY
(Exact
name of registrant as specified in its
charter)
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INDIANA
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0-8445
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37-0684070
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(State
or other jurisdiction
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(Commission
File Number)
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(I.R.S.
Employer
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of
incorporation)
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Identification
No.)
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36
S. Pennsylvania Street, Suite 500
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Indianapolis,
Indiana
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46204
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(Address
of principal executive offices)
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(Zip
Code)
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(317)
633-4100
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Registrant's
telephone number, including area
code
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Not
Applicable
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(Former
name or former address, if changed since last
report.)
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Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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x
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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x
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01
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Entry
into a Material Definitive
Agreement
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On
October 22, 2009, The Steak n Shake Company (“SNS”), entered into an agreement
with Western Sizzlin Corporation (“Western”) to acquire 100% of the outstanding
equity interests of Western, pursuant to an Agreement and Plan of Merger between
SNS, Grill Acquisition Corporation, a wholly owned subsidiary of SNS, and
Western, dated as of October 22, 2009 (the “Merger Agreement”).
As
permitted by the Merger Agreement, Western on October 22, 2009, declared a
special dividend payable to Western stockholders in the form of 1,322,806 shares
of SNS common stock presently beneficially owned by an investment subsidiary of
Western.
SNS and
Western issued a joint press release on October 22, 2009 announcing the
execution of the Merger Agreement and the special dividend. A copy of
the press release is furnished as Exhibit 99.1 to this Current Report on Form
8-K and is incorporated herein by reference.
Subject
to approval of the merger by the stockholders of Western and satisfaction or
waiver of the other conditions specified in the Merger Agreement, SNS will be
obligated to issue, in exchange for each outstanding share of Western common
stock that Western's stockholders own immediately prior to the effective time of
the merger, a pro rata portion of a new issue, not exceeding $22,959,000 in
aggregate principal amount, of 14% redeemable subordinated
debentures. Interest on the debentures would be payable
semiannually, and the principal of the debentures would be due in a single
installment on the fifth anniversary of the closing of the
merger. SNS may, at its option, redeem the debentures, in whole
or in part, without premium or penalty, on or after the date that is the first
anniversary of the date of issuance at a redemption price equal to 100% of the
principal amount of the debentures to be redeemed, plus any accrued and unpaid
interest to the date of redemption. The aggregate principal amount of these
debentures is subject to reduction on account of certain potential tax
contingencies that could arise in connection with the Western special dividend
that will be resolved as of the date of distribution of that
dividend.
SNS
currently expects to complete the merger in the fourth calendar quarter of 2009
or the first calendar quarter of 2010, subject to receipt of Western stockholder
approval and the satisfaction or waiver of other closing
conditions. However, no assurance can be given as to when, or if, the
merger will occur. SNS stockholders are not required to adopt the
Merger Agreement or approve the merger or the issuance of the debentures in
connection with the merger.
SNS and
Western are closely related by certain common directors, certain common
executive officers, and certain common shareholders, and by the beneficial
ownership by Western and affiliates of Western of more than five percent of the
outstanding common stock of SNS. Western has advised SNS that
three directors of Western (Sardar Biglari, Philip L. Cooley and Jonathan Dash),
and John K. H. Linnartz (whom Western has advised SNS is the beneficial owner of
approximately 2.3% of the Western's common stock), (a) exercise voting control
over an aggregate of 1,243,319 shares of Western's common stock, or
approximately 43.8% of its currently outstanding common stock, based upon
Western's review of filings made by such persons with the Securities and
Exchange Commission (the “SEC”) to date, and (b) are members of a “group,”
within the meaning of Section 13(d)(3) of the Exchange Act, along with Western,
that beneficially owns an aggregate of 2,753,155 share of SNS’s common stock, or
approximately 9.6% of SNS's currently outstanding common stock, which includes
the 1,322,806 shares of SNS that are owned by an investment subsidiary of
Western that will be distributed by Western to Western's stockholders in the
special dividend described above. Additionally, Mr. Biglari is the
Chairman of the SNS board of directors and its President and Chief Executive
Officer and is the Chairman of the Western board of directors and its President
and Chief Executive Officer, and Mr. Cooley is a director of SNS and Vice
Chairman of its board of directors and a director of Western and Vice Chairman
of its Board of Directors. In recognition of these close relationships, the
Merger Agreement was negotiated between special committees of the boards of
directors of SNS and Western, each of which was composed entirely of
directors that had no such relationships.
The
Merger Agreement includes representations and warranties of the parties thereto,
which were made for the purposes of allocating contractual risk between the
parties and not necessarily as a means of establishing facts. Those
representations and warranties accordingly are not meant to be relied upon by
the investing public in connection with investment decisions with respect to
securities issued by any of the parties hereto. Investors are
cautioned that (a) the Merger Agreement may have different standards of
materiality than standards of materiality under applicable securities laws; (b)
some of the representations and warranties contained in the Merger Agreement are
qualified by reference to confidential disclosure schedules that contain some
nonpublic information; and (c) facts may change after the date of the Merger
Agreement.
In
addition, the Merger Agreement includes certain covenants of the parties that
restrict in certain respects their freedom to operate outside of the ordinary
course of business, and provisions for termination of the Merger Agreement by
the parties thereto (or by either of the parties thereto) which, under certain
circumstances, may require one party to pay the other party a termination fee in
amounts specified by the Merger Agreement.
The
description of the Merger Agreement in this Current Report on Form 8-K is
qualified in its entirety by the terms of the Merger Agreement, which is
attached hereto as Exhibit 2.1 and is hereby incorporated by
reference.
Additional Information
Concerning The Transaction
SNS plans
to file a registration statement and related transaction statement on Schedule
13E-3 with the Securities and Exchange Commission (the "SEC") with respect to
the merger. The registration statement will include Western's proxy
statement for the special meeting of its stockholders to consider the merger and
SNS's prospectus with respect to the debentures. INVESTORS AND
SECURITY HOLDERS ARE URGED TO READ THE REGISTRATION STATEMENT AND PROXY
STATEMENT/PROSPECTUS CAREFULLY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL
CONTAIN IMPORTANT INFORMATION ABOUT SNS, WESTERN, THE TRANSACTION AND RELATED
MATTERS. Investors will be able to obtain free copies of the
registration statement and proxy statement/prospectus, when available, and other
documents filed by SNS and Western with the SEC through the SEC's web site at
www.sec.gov. In addition, Western stockholders will be able to obtain
free copies of the registration statement, proxy statement/prospectus and
transaction statement, when available, from Western by directing such requests
to Western, attention: Investor Relations, 401 Albemarle Ave SE, Roanoke,
Virginia 24013, telephone at (540) 345-3195.
Participants In The
Solicitation
SNS,
Western and Western's directors and officers may be deemed to be participants in
the solicitation of proxies from Western's stockholders in connection with the
proposed merger involving SNS and Western. Information regarding
Western's directors and officers and a description of their interests in Western
is contained in Western's definitive proxy statement on Schedule 14A with
respect to its 2009 Annual Meeting of Stockholders, which was filed with the SEC
on July 15, 2009, and will also be contained in the proxy statement/prospectus
relating to the proposed merger when it becomes
available. Western's stockholders may obtain additional
information about the direct and indirect interests of the participants in the
acquisition, by security holdings or otherwise, by reading the proxy
statement/prospectus and other materials to be filed with the SEC when such
information becomes available.
Risks Associated With
Forward-Looking Statements
This
report including the news release incorporated by reference herein contains
"forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995 and other federal securities laws and are intended
to be covered by the safe harbors created thereby. These statements
are based on current expectations and are subject to a number of risks and
uncertainties that could cause actual results to differ markedly from those
projected or discussed here. SNS and Western caution readers not to
place undue reliance upon any such forward-looking statements, for actual
results may differ materially from expectations. Neither company
undertakes to publicly update or revise any forward-looking statements even if
experience or future changes make it clear that any projected results expressed
or implied will not be realized. Further information concerning the
types of factors that could impact the companies' businesses can be found in
their filings with the SEC.
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Item
9.01
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Financial
Statements and Exhibits
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d)
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Exhibits
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Exhibit
No.
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Descriptions
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2.1
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Agreement
and Plan of Merger by and among The Steak n Shake Company, Grill
Acquisition Corporation, and Western Sizzlin Corporation, dated as of
October 22, 2009. This exhibit omits the disclosure schedules
of the parties thereto, the contents of which are referred to in the text
thereof. The registrant agrees to furnish supplementally
a copy of any omitted schedules to the Securities and Exchange Commission
upon request.
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99.1
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Press
Release dated October 22,
2009
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
THE
STEAK N SHAKE COMPANY
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By:
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/s/
Duane E. Geiger
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Duane E.
Geiger
Interim
Chief Financial Officer, Vice President, and Controller
Dated:
October 23, 2009
EXHIBIT
INDEX
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Exhibit
No.
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Descriptions
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2.1
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Agreement
and Plan of Merger by and among The Steak n Shake Company, Grill
Acquisition Corporation, and Western Sizzlin Corporation, dated as of
October 22, 2009.
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99.1
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Press
Release dated October 22,
2009
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