UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A
(Rule
14a-101)
INFORMATION
REQUIRED IN PROXY STATEMENT
SCHEDULE
14A INFORMATION
Proxy
Statement Pursuant to Section 14(a) of the Securities Exchange Act of
1934
Filed by
the Registrant
x
Filed by
a party other than the Registrant
o
Check the appropriate
box:
o
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Preliminary
Proxy Statement
|
o
|
Confidential,
for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
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x
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Definitive
Proxy Statement
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o
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Definitive
Additional Materials
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o
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Soliciting
Material Pursuant to
§240.14a-12
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THE
STEAK N SHAKE COMPANY
(Name of
Registrant as Specified in its Charter)
(Name of
Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check
the appropriate box):
x
|
No
fee required.
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o
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Fee
computed on table below per Exchange Act Rules 14a-16(i)(1) and
0-11.
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1)
Title of each class of securities to which transaction
applies:
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2)
Aggregate number of securities to which transaction
applies:
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3) Per
unit price or other underlying value of transaction computed pursuant
to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is
calculated and state how it was determined):
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4)
Proposed maximum aggregate value of transaction:
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5)
Total fee paid:
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o
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Fee
paid previously with preliminary materials.
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o
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Check
box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
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1)
Amount Previously Paid:
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2) Form,
Schedule or Registration Statement No.:
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3)
Filing Party:
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4)
Date Filed:
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THE
STEAK N SHAKE COMPANY
175
East Houston Street, Suite 1300
San
Antonio, Texas 78205
NOTICE
OF ANNUAL MEETING OF SHAREHOLDERS
April 8,
2010
TO THE
SHAREHOLDERS:
Notice is
hereby given that the Annual Meeting of the Shareholders of The Steak n Shake
Company will be held at The St. Regis Hotel, Two East 55
th
Street
at Fifth Avenue, New York, New York 10022 on April 8, 2010, at 1:00
p.m.
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2.
|
To
ratify the selection by the Audit Committee of the Board of Directors of
Deloitte & Touche LLP as the Corporation’s independent registered
public accounting firm for the 2010 fiscal
year.
|
|
3.
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To
amend the Restated Articles of Incorporation to delete an unnecessary post
office address, remove
nonessential
detailed language about the business’s purpose, and to change the name
of
the holding company.
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4.
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To
consider and act upon any other matters that may properly come before the
meeting or any adjournment thereof.
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The Board
of Directors has fixed the close of business on March 1, 2010 as the record date
for determining the shareholders having the right to vote at the meeting or any
adjournment thereof.
You are
requested to date, sign and return the enclosed proxy which is solicited by the
Board of Directors of the Corporation and will be voted as indicated in the
accompanying proxy statement and proxy. A return envelope is provided
which requires no postage if mailed in the United States. If mailed
elsewhere, foreign postage must be affixed.
|
By
order of the Board of Directors
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|
|
San
Antonio, Texas
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SARDAR
BIGLARI,
Chairman and
Chief Executive
Officer
|
March
8, 2010
If
you plan to attend the meeting:
If
you are a shareholder of record and you plan to attend the meeting, please keep
the admission ticket that is attached to the enclosed proxy card, as you must
present this ticket to be admitted to the meeting. Each shareholder may be asked
to present valid picture identification, such as a driver’s license or passport.
Shareholders who do not present an admission ticket will need to present proof
of ownership of shares. Those shareholders holding shares in
brokerage accounts (“street-name shareholders”) will need to bring a copy of a
brokerage statement, a legal proxy or letter from the broker confirming
ownership of The Steak n Shake Company shares. Registration will begin at 12:00.
Cameras, recording devices and other electronic devices will not be permitted at
the meeting.
THE
STEAK N SHAKE COMPANY
175
East Houston Street, Suite 1300
San
Antonio, Texas 78205
PROXY
STATEMENT
FOR
ANNUAL MEETING OF SHAREHOLDERS
April
8, 2010
This
statement is furnished in connection with the solicitation by the Board of
Directors of The Steak n Shake Company (hereinafter “we”, “our”, “Corporation”
or “Company”) of proxies in the accompanying form for the Annual Meeting of
Shareholders to be held on Thursday, April 8, 2010 at 1:00 p.m. and at any
adjournment thereof. This proxy statement and the enclosed form of
proxy were first sent to shareholders on or about March 8, 2010. If
the form of proxy enclosed herewith is executed and returned as requested, it
may nevertheless be revoked at any time prior to exercise by filing an
instrument revoking it or a duly executed proxy bearing a later
date. Solicitation of proxies may be made by mail and through
telephonic or telegraphic communications to, or by meetings with, shareholders
or their representatives by directors, officers and other employees of the
Corporation who will receive no additional compensation for this
service.
In
addition, the Corporation has engaged Morrow & Co., LLC (“Morrow”), to act
as our proxy solicitation agent. Morrow will be paid a fee of $5,000
and will be reimbursed for disbursements made on our behalf.
You may obtain information from
Morrow as follows: 470 West Avenue—3
rd
Floor, Stamford,
CT 06902; banks and brokerage firms, please call (203) 658-9400;
shareholders please call (800) 607-0088.
The Corporation will
reimburse brokerage firms, banks, trustees and others for their actual
out-of-pocket expenses in forwarding proxy material to the beneficial owners of
its Common Stock.
As of the
close of business on March 1, 2010, the record date for the Annual Meeting, the
Corporation had outstanding and entitled to vote 1,436,145 shares of Common
Stock. Each share of Common Stock is entitled to one vote per share
on all matters submitted to a vote of shareholders of the
Corporation. Only shareholders of record at the close of business on
March 1, 2010 are entitled to vote at the Annual Meeting or at any adjournment
thereof.
The
presence at the meeting, in person or by proxy, of the holders of Common Stock
holding in the aggregate a majority of the voting power of the Corporation’s
stock entitled to vote shall constitute a quorum for the transaction of
business. A plurality of the votes properly cast for the election of
directors by the shareholders attending the meeting, in person or by proxy, will
elect directors to office. However, pursuant to the Corporation’s
Corporate Governance Guidelines, if a director nominee in an uncontested
election receives a greater number of votes “withheld” from his or her election
than votes “for” that director’s election, the nominee shall promptly offer his
or her resignation to the Board. A committee consisting of the
Board’s independent directors (which will specifically exclude any director who
is required to offer his or her own resignation) shall consider all relevant
factors and decide on behalf of the Board the action to be taken with respect to
such offered resignation and will determine whether to accept the resignation or
take other action. The Corporation will publicly disclose the Board’s
decision with regard to any resignation offered under these circumstances with
an explanation of how the decision was reached, including, if applicable, the
reasons for rejecting the offered resignation.
The
number of votes cast in favor of any other question must exceed the votes cast
against the question in order for the matter to pass. Abstentions and
broker non-votes will count for purposes of establishing a quorum, but will not
count as votes cast for the election of directors or any other question and
accordingly will have no effect. Shareholders who send in proxies but
attend the meeting in person may vote directly if they prefer and withdraw their
proxies or may allow their proxies to be voted with the similar proxies sent in
by other shareholders.
IMPORTANT
NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE SHAREHOLDER MEETING
TO BE HELD ON APRIL 8, 2010.
The
Proxy Statement for the Annual Meeting of Shareholders to be held on April 8,
2010 and the 2009 Annual Report on Form 10-K, as amended, are available at
www.steaknshake.com.
At the
2010 Annual Meeting of Shareholders, a Board of Directors consisting of five
members will be elected, each director to hold office until a successor is
elected and qualified, or until the director resigns, is removed or becomes
disqualified.
Upon the
recommendation of the Governance, Compensation and Nominating Committee, the
members of the Board of Directors have nominated for election the five current
directors of the Corporation. Certain information with respect to
nominees for election as directors is contained in the following
table:
Name
|
|
Age
|
|
Director
Since
|
|
Business
Experience
|
|
|
|
|
|
|
|
Sardar
Biglari
|
|
32
|
|
2008
|
|
Chairman
and Chief Executive Officer of the Company; Chairman and Chief Executive
Officer of Biglari Capital Corp., the general partner of the Lion
Fund, L.P. (“Lion Fund”), a private investment fund, since its inception
in 2000. He has also served as the Chairman of the Board of Western
Sizzlin Corp. (“Western Sizzlin”), a diversified holding company, since
March 2006 and as its Chief Executive Officer and President since May
2007.
|
|
|
|
|
|
|
|
Philip
L. Cooley
|
|
66
|
|
2008
|
|
Prassel
Distinguished Professor of Business at Trinity University, San Antonio,
Texas, since 1985. Served as an advisory director of Biglari Capital
Corp. since 2000 and as Vice Chairman of the Board of Western
Sizzlin Corp. since March 2006.
|
|
|
|
|
|
|
|
Ruth
J. Person
|
|
64
|
|
2002
|
|
Chancellor
and Professor of Management, University of Michigan-Flint; Former
Chancellor, Indiana University Kokomo and Professor of Management from
1999 through 2008; Member, Board of Managers, Hurley Medical Center,
Flint, Michigan; President, American Association of University
Administrators 2003 through 2004; Former President, Board of Directors,
Workforce Development Strategies, Inc.; Former Member, Key Bank Advisory
Board – Central Indiana.
|
|
|
|
|
|
|
|
William
J. Regan, Jr.
|
|
63
|
|
2008
|
|
Private
Investor; Chief Financial Officer, California Independent System Operator
Corporation from June 1999 until retirement in April 2008. Formerly
held senior financial positions at Entergy Corporation, United Services
Automobile Association (USAA), and American Natural
Resources.
|
|
|
|
|
|
|
|
John
W. Ryan
|
|
80
|
|
1996
|
|
Private
Investor; Chancellor, State University System of New York from 1996
through 1999; President, Indiana University from 1971 through
1987.
|
The
Governance, Compensation and Nominating Committee (“Governance Committee”) of
the Board of Directors has concluded that the following directors are
independent in accordance with the director independence standards of the New
York Stock Exchange, and has determined that none of them has a material
relationship with the Corporation which would impair his or her independence
from management or otherwise compromise his or her ability to act as an
independent director: Philip L. Cooley, John W. Ryan, Ruth J. Person
and William J. Regan, Jr.
When the
accompanying proxy is properly executed and returned, the shares it represents
will be voted in accordance with the directions indicated thereon or, if no
direction is indicated, the shares will be voted in favor of the election of the
five nominees identified above. The Corporation expects each nominee
to be able to serve if elected, but if any nominee notifies the Corporation
before the annual meeting that he or she is unable to do so, then the proxies
will be voted for the remainder of those nominated and, as designated by the
directors, may be voted (i) for a substitute nominee or nominees, or (ii) to
elect such lesser number to constitute the whole Board as equals the number of
nominees who are able to serve.
Board
of Directors’ Meeting, Committees, Directors’ Compensation and
Nominations
Board of
Directors’ actions were taken at twelve meetings held during fiscal year
2009. Each director attended at least 75% of all meetings of the
Board and of the Committees of the Board on which he or she
served. Directors are encouraged but not required to attend annual
meetings of the Corporation’s shareholders. All current directors of
the Corporation at the date of the 2009 Annual Meeting of Shareholders attended
that meeting except John W. Ryan.
The Board
of Directors has established an Audit Committee in accordance with Section
3(a)(58)A of the Securities Exchange Act of 1934. The Audit Committee
consists of Philip L. Cooley, Ruth J. Person, John W. Ryan and William J. Regan,
Jr. The Board of Directors has determined that all Audit Committee
members meet the definition of “audit committee financial expert” as that term
is used in Item 407(d)(5) of Regulation S-K
promulgated under the Securities
Exchange Act. All current members of the Audit Committee meet
the criteria for independence set forth in Rule 10A-3 under the Securities
Exchange Act and in Section 303A of the New York Stock Exchange Listed Company
Manual. The Audit Committee assists the Board with oversight of a)
the integrity of the Corporation’s financial statements, b) the Corporation’s
compliance with legal and regulatory requirements and c) the qualifications and
independence of the Corporation’s independent public accountants and the
Corporation’s internal audit function. The Audit Committee meets
periodically with the Corporation’s independent public accountants, head of
internal audit and members of management and reviews the Corporation’s
accounting policies and internal controls. The Audit Committee also
selects the firm of independent public accountants to be retained by the
Corporation to perform the audit. The Audit Committee held seven
formal meetings during fiscal year 2009. The Board of Directors
amended and restated the Charter on January 25, 2010. The amended
Audit Committee Charter is available on the Corporation’s website at
www.steaknshake.com and may also be obtained a no charge by written request to
the attention of the Secretary of the Corporation at 175 East Houston Street,
Suite 1300, San Antonio, Texas 78205.
The Board
of Directors has established a Governance, Compensation and Nominating Committee
and adopted a charter to define and outline the responsibilities of its
members. A copy of the Governance, Compensation and Nominating
Committee Charter is available on the Corporation’s website at
www.steaknshake.com and may also be obtained at no charge by written request to
the attention of the Secretary of the Corporation at 175 East Houston Street,
Suite 1300, San Antonio, Texas 78205. The Governance,
Compensation and Nominating Committee consists of Philip L. Cooley, Ruth J.
Person, John W. Ryan and William J. Regan, Jr., all of whom are independent
directors in accordance with the New York Stock Exchange director independence
standards.
The role
of the Governance, Compensation and Nominating Committee is to assist the Board
of Directors by a) recommending governance guidelines applicable to Steak n
Shake; b) identifying, evaluating and recommending the nomination of Board
members; c) setting the compensation of Steak n Shake’s Chief Executive Officer
and performing other compensation oversight; d) reviewing related persons
transactions; and e) assisting the Board with other related tasks, as assigned
from time to time. The Governance, Compensation and Nominating
Committee did not meet in fiscal year 2009 as it was not yet formed, and has met
once in 2010.
Prior to
the formation of the combined committee, during fiscal year 2009, the
Compensation Committee met four times and the Nominating and Governance
Committee met three times.
In
identifying director nominees, the Governance, Compensation and Nominating
Committee looks for individuals who have a meaningful interest in the
Corporation’s stock, are shareholder-oriented and possess business
savvy. With respect to the selection of director nominees at the 2010
Annual Meeting of Shareholders, the Governance, Compensation and Nominating
Committee recommends the Board nominate each of the five directors currently
serving on the Board.
The
Corporation’s Governance, Compensation and Nominating Committee has a policy
under which it will consider recommendations presented by
shareholders. A shareholder wishing to submit such a recommendation
should send a letter to the Secretary of the Corporation at 175 East Houston
Street, Suite 1300, San Antonio, Texas 78205. The mailing
envelope must contain a clear notation that the enclosed letter is a “Director
Nominee Recommendation”. The Secretary must receive the
recommendation not less than 120 days prior to the date we released our proxy
materials for the preceding year’s annual meeting for it to be considered by the
Committee for the 2011 Annual Meeting of Shareholders. The letter
must identify the author as a shareholder and provide a brief summary of the
candidate’s qualifications. At a minimum, candidates recommended for
nomination to the Board of Directors must meet the director independence
standards of the New York Stock Exchange. The Committee’s policy
provides that candidates recommended by shareholders will be evaluated using the
same criteria as are applied to all other candidates.
Directors
of the Corporation who are employees or spouses of employees do not receive fees
for attendance at directors’ meetings. A director who is not an
employee or a spouse of an employee receives an annual cash retainer of
$22,000. The Chairs of the Audit Committee and Governance,
Compensation and Nominating Committee receive an annual retainer of
$37,000. In addition, non-employee directors receive cash meeting
attendance fees as follows:
|
·
|
$3,500
for each in-person Board meeting
attended;
|
|
·
|
$1,250
for each committee meeting attended in-person not held in conjunction with
a Board meeting;
|
|
·
|
$500
for each committee meeting attended held in conjunction with a Board
meeting; and
|
|
·
|
$500
for any meeting (Board or committee) in which the director participated by
phone.
|
From
November 2008 to March 2009 we paid all retainers in Company
stock. We have discontinued that practice to minimize equity
dilution. Effective April 1, 2009, all annual retainers have been
paid in cash only.
In
addition to the foregoing payments, directors may participate in the
Nonqualified Deferred Compensation Plan. There are no matching
payments made to directors under the Nonqualified Deferred Compensation Plan and
no guaranteed return is offered. Instead, it provides directors with
an opportunity to defer the receipt of retainer and/or meeting fees and obtain
them at a later date, together with the gains or losses associated with
investments against which they choose to track their accounts.
The
following table provides compensation information for the fiscal year ended
September 30, 2009 for each non-management member of the Corporation’s Board of
Directors, and six former directors who received compensation in fiscal year
2009.
Name
|
|
Fees Earned or
Paid in Cash
|
|
|
Stock Awards
a
|
|
|
Option
Awards
b
|
|
|
All Other
Compensation
c
|
|
|
Total
|
|
Geoffrey
Ballotti (resigned in November 2008)
|
|
$
|
4,500
|
|
|
$
|
7,331
|
|
|
$
|
(2,722
|
)
|
|
$
|
590
|
|
|
$
|
9,699
|
|
Philip
L. Cooley
|
|
$
|
40,420
|
|
|
$
|
5,559
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
45,979
|
|
Wayne
Kelley (resigned in March 2009)
|
|
$
|
13,708
|
|
|
$
|
13,484
|
|
|
$
|
248
|
|
|
$
|
590
|
|
|
$
|
28,030
|
|
Ruth
J. Person
|
|
$
|
41,647
|
|
|
$
|
5,559
|
|
|
$
|
14,910
|
|
|
$
|
590
|
|
|
$
|
62,706
|
|
William
J. Regan, Jr.
|
|
$
|
46,669
|
|
|
$
|
4,432
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
51,101
|
|
J.
Fred Risk (did not stand for re-election in 2009)
|
|
$
|
18,089
|
|
|
$
|
22,683
|
|
|
$
|
14,910
|
|
|
$
|
590
|
|
|
$
|
56,272
|
|
John
W. Ryan
|
|
$
|
43,646
|
|
|
$
|
8,089
|
|
|
$
|
14,910
|
|
|
$
|
—
|
|
|
$
|
66,645
|
|
Steven
M. Schmidt (did not stand for re-election in 2009)
|
|
$
|
6,610
|
|
|
$
|
22,683
|
|
|
$
|
15,610
|
|
|
$
|
590
|
|
|
$
|
45,493
|
|
Edward
Wilhelm (did not stand for re-election in 2009)
|
|
$
|
13,936
|
|
|
$
|
22,683
|
|
|
$
|
14,039
|
|
|
$
|
590
|
|
|
$
|
51,248
|
|
James
Williamson, Jr. (resigned in March 2008)
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
295
|
|
|
$
|
295
|
|
|
a.
|
Represents
the dollar amount of equity compensation cost recognized for financial
reporting purposes with respect to grants of restricted stock under our
Non-Employee Restricted Stock Plan in fiscal 2009. Dr. Cooley
received a grant of 50 shares of restricted stock on March 12, 2008,
the grant date fair value of which was $8,070.
Messrs. Schmidt and
Wilhelm received a grant of 50 shares of restricted stock each on February
6, 2007, the grant date fair value of which was $17,840. Mr.
Ballotti received a grant of 50 shares of restricted stock on April 23,
2007, the grant date fair value of which was $16,840. These are all
of the shares of restricted stock held by our directors. The
numbers of shares granted have been adjusted to reflect the 1-for-20
reverse stock split effective as of the end of business December 18,
2009.
|
|
b.
|
Represents
the dollar amount of equity compensation cost recognized for financial
reporting purposes with respect to grants of stock options in fiscal 2009
as follows:
|
Fiscal 2009 Expense for Stock Option Grants to Non-Employee Directors
|
|
Name
|
|
Grant Date
|
|
No. of Shares Underlying
Option Grant
|
|
|
Fiscal 2009
Expense
|
|
Mr.
Ballotti
|
|
4/20/07
|
|
250
|
|
|
$
|
(2,722
|
)
|
Total
|
|
|
|
|
|
|
$
|
(2,722
|
)
|
|
|
|
|
|
|
|
|
|
|
Mr.
Kelley
|
|
5/9/99
|
|
412
|
|
|
$
|
—
|
|
|
|
11/12/03
|
|
250
|
|
|
|
—
|
|
|
|
12/1/03
|
|
362
|
|
|
|
—
|
|
|
|
11/18/04
|
|
250
|
|
|
|
248
|
|
Total
|
|
|
|
|
|
|
$
|
248
|
|
|
|
|
|
|
|
|
|
|
|
Dr.
Person
|
|
11/12/03
|
|
250
|
|
|
$
|
—
|
|
|
|
11/18/04
|
|
250
|
|
|
|
248
|
|
|
|
11/8/05
|
|
250
|
|
|
|
7,823
|
|
|
|
2/6/07
|
|
250
|
|
|
|
6,839
|
|
Total
|
|
|
|
|
|
|
$
|
14,910
|
|
|
|
|
|
|
|
|
|
|
|
Mr.
Risk
|
|
11/12/03
|
|
250
|
|
|
$
|
—
|
|
|
|
11/18/04
|
|
250
|
|
|
|
248
|
|
|
|
11/8/05
|
|
250
|
|
|
|
7,823
|
|
|
|
2/6/07
|
|
250
|
|
|
|
6,839
|
|
Total
|
|
|
|
|
|
|
$
|
14,910
|
|
|
|
|
|
|
|
|
|
|
|
Dr.
Ryan
|
|
11/12/03
|
|
250
|
|
|
$
|
—
|
|
|
|
11/18/04
|
|
250
|
|
|
|
248
|
|
|
|
11/8/05
|
|
250
|
|
|
|
7,823
|
|
|
|
2/6/07
|
|
250
|
|
|
|
6,839
|
|
Total
|
|
|
|
|
|
|
$
|
14,910
|
|
|
|
|
|
|
|
|
|
|
|
Mr.
Schmidt
|
|
5/11/05
|
|
250
|
|
|
$
|
948
|
|
|
|
11/8/05
|
|
250
|
|
|
|
7,823
|
|
|
|
2/6/07
|
|
250
|
|
|
|
6,839
|
|
Total
|
|
|
|
|
|
|
$
|
15,610
|
|
|
|
|
|
|
|
|
|
|
|
Mr.
Wilhelm
|
|
5/9/06
|
|
250
|
|
|
$
|
7,200
|
|
|
|
2/6/07
|
|
250
|
|
|
|
6,839
|
|
Total
|
|
|
|
|
|
|
$
|
14,039
|
|
See
Note 15 of Notes to Consolidated Financial Statements included in
Part II, Item 8 of our Form 10-K for a description of
the assumptions made in the valuation. The information in the table
reflects the 1-for-20 reverse split effective as of the end of business December
18, 2009.
The preceding table sets
forth the shares of our stock underlying unexercised stock options held by each
of our non-employee directors as of September 30, 2009. In the aggregate
that number is 5,274. No stock options were awarded to our non-employee
directors in fiscal year 2009.
|
c.
|
This
column includes the medical reimbursement plan, which had a value of
up to $3,500 per year, tax gross up for the medical reimbursement plan.
The plan was discontinued by the Board during fiscal
2009.
|
In the
past we have compensated our non-employee directors with equity-based awards,
the value of which are tied to increases in the value of our common
stock. We have had director stock option plans in place since
1990. These plans provide for grants of nonqualified stock options to
our non-employee directors at a price equal to the fair market value of our
common stock on the date of grant. Options granted prior to November
7, 2005 are exercisable at a rate of 20% on the date of grant and on each
anniversary thereof until fully exercisable and expire five years from the date
of grant. Options granted after November 7, 2005 are exercisable at a
rate of 25% on the first anniversary of the grant and each year thereafter until
fully vested. Finally, some newly appointed or elected directors
received a grant of 50 shares of restricted stock. Dr. Cooley
received such a grant in fiscal 2008. At his request, Mr. Biglari
declined to receive a grant. These shares have a three year
restriction on transfer, and if a recipient ceases serving as a director for any
reason other than death, disability or retirement during this period he or she
will forfeit the stock.
Compensation
Committee Interlocks and Insider Participation
During
fiscal year 2009 the Compensation Committee of our Board of Directors consisted
of Philip L. Cooley, Ruth J. Person, John W. Ryan, William J. Regan, Jr., and
Steven M. Schmidt. None of these individuals has at any time been an officer or
employee of the Company. During fiscal year 2009, none of our executive officers
served as a member of the board of directors or compensation committee of any
entity for which a member of our Board of Directors or Compensation Committee
served as an executive officer.
Meetings
of Independent Directors
Meetings
of the independent directors, chaired by Philip L. Cooley, were held following
two Board meetings during fiscal year 2009. A shareholder or other interested
party wishing to contact the independent directors, as applicable, should send a
letter to the Secretary of the Corporation at 175 East Houston Street, Suite
1300, San Antonio, Texas 78205. The mailing envelope must contain a clear
notation that the enclosed letter is to be forwarded to the Corporation’s
independent directors.
Shareholder
Communications with the Board of Directors
Shareholders
who wish to communicate with the Board of Directors or a particular director may
send a letter to the Secretary of the Corporation at 175 East Houston Street,
Suite 1300, San Antonio, Texas 78205. The mailing envelope must contain a clear
notation that the enclosed letter is a “Shareholder-Board Communication” or
“Shareholder-Director Communication.” All such letters must identify the author
as a shareholder and clearly state whether the intended recipients are all
members of the Board or just certain specified individual directors. The
Secretary will make copies of all such letters and circulate them to the
appropriate director or directors.
Corporate
Governance Guidelines
The Board
of Directors has adopted Corporate Governance Guidelines to promote effective
governance of the Corporation. The Corporate Governance Guidelines are available
on the Corporation’s website at www.steaknshake.com. A copy of the Corporate
Governance Guidelines also may be obtained at no charge by written request to
the attention of the Secretary of the Corporation at 175 East Houston Street,
Suite 1300, San Antonio, Texas 78205.
Code
of Business Conduct and Ethics
The
Corporation has adopted a Code of Conduct for all directors, officers and
employees as well as directors, officers and employees of each of its
subsidiaries. The Code of Conduct is available on the Corporation’s website at
www.steaknshake.com. A copy of the Code of Conduct may also be obtained at no
charge by written request to the attention of the Secretary of the Corporation
at 175 East Houston Street, Suite 1300, San Antonio, Texas 78205.
Related
Persons Transactions
The Charter of the Governance,
Compensation and Nominating Committee (“Committee”) includes procedures for the
review, approval and ratification of any Related Persons Transaction
(“Transaction”) as defined in the regulations of the Securities and Exchange
Commission. The procedures require that all requests for review of proposed
Transactions or ratification of Transactions be referred to the Chairman of the
Committee or directly to the Committee. The full Committee reviews any
Transaction which the Chairman concludes is material to the Company or which the
Chairman is unable to review. Only Transactions which the Committee or its
Chairman finds to be in the best interests of the Corporation and its
stockholders are approved or ratified. The Chairman reports all Transactions
which he reviews to the Committee annually for ratification.
Compensation
Discussion and Analysis
This Compensation Discussion and
Analysis is designed to provide shareholders with a better understanding of our
compensation philosophy, core principles, and decision making process. It
explains the compensation-related actions taken with respect to the executive
officers who are identified in the Summary Compensation Table (the “Named
Executive Officers”). Details regarding the compensation we paid to the Named
Executive Officers for fiscal 2009 are found in the tables and narrative which
follows them.
Compensation
Philosophy
Introduction
Since 2008 our Company has changed in
several respects, including the way we view and structure executive
compensation. Currently, our executive compensation consists
exclusively of a salary and a cash bonus. In 2009, our restructuring
into a diversified holding company brought in further change in
our compensation system. For example, at the end of fiscal 2009, our
executive officers consisted of only our Chief Executive Officer, Sardar
Biglari, and our Interim Chief Financial Officer, Duane Geiger.
To assist shareholders in understanding
the information in this proxy statement — which covers compensation paid to
executives (and former executives) during fiscal years prior to 2009 — we have
included an overview of our current and future compensation structure and a
brief discussion of prior management’s past compensation philosophies from which
we have departed significantly.
The
Governance, Compensation, and Nominating Committee
Our program for compensation of
executive officers differs from those of most public companies. The
Governance, Compensation, and Nominating Committee of our Board of Directors was
created in fiscal 2010. This Committee determines the amounts
and elements of compensation for Mr. Biglari, who does not have an employment
agreement. The Committee’s functions include oversight of our
compensation policies generally, which are more fully described in its charter
and is available at www.steaknshake.com. Under the Committee’s
compensation tenets, the Company does not grant stock options to executive
officers.
The Committee has delegated to Mr.
Biglari the responsibility of setting the compensation of other executive
officers of the Company. Factors Mr. Biglari considers in setting the salary of
these officers, including the Chief Financial Officer, are typically subjective,
such as his perception of the merits of the executive's performance
and any changes in functional responsibility. Mr. Biglari will also
set the compensation for the Chief Executive Officers of the operating
businesses of the holding company. He may utilize different incentive
arrangements, with their terms dependent upon such elements as the economic
potential or capital intensity of the business. The incentives could
be large and will always be tied to the operating results for which a Chief
Executive Officer exercises authority.
Compensation of Named
Executive Officers—Fiscal Year 2009
The base salary of Mr. Biglari was set
at $280,000 in fiscal 2008. On June 19, 2009, the Compensation
Committee of the Board of Directors (prior to being merged with the Governance
and Nominating Committee) voted unanimously to increase Mr. Biglari’s salary to
$900,000 per year. Mr. Biglari did not receive any stock or stock option
grants. The Committee has also noted that Mr. Biglari, through
related entities, has significant economic interests in the Company, which
further aligns his interests with the Company’s
shareholders. In determining to increase Mr. Biglari’s salary
the Committee did not use a compensation consultant. Rather, the
Committee relied upon its subjective judgment and considered a variety of
factors, including the Company’s financial performance.
Salaries for other Named Executive
Officers in 2009 were either based upon prior employment agreements or upon the
decision of Mr. Biglari. Bonus payment decisions were made by Mr.
Biglari, in his discretion. In addition, bonus eligibility was
predicated on the Company generating free cash flow. He also
considered subjective factors such as his perception of the executive’s
performance and changes in functional responsibility, and operating results over
which the executive had authority. The Compensation Committee was
apprised of the final bonus determinations by Mr. Biglari with which it found
approval.
The stock
and stock option grants to Mr. Roberts on September 28, 2008, occurred in
connection with his initial hiring. This was prior to the decision in
February 2009 that executive compensation would consist exclusively of a salary
and cash bonus.
Compensation—Fiscal
2008
All decisions relating to the
compensation of the Named Executive Officers were made by the Compensation
Committee in executive session, without management present. In
assessing the compensation of the Chief Executive Officer, the Compensation
Committee made a qualitative assessment of our performance, his contribution to
that performance, his expected performance in the future, and other factors
(including experience, historical compensation and the relationship of his
compensation to other executives in the Company). In evaluating the
performance of other executive officers, the Compensation Committee considered
the evaluations provided by the Chief Executive Officer, the Company’s
performance, individual performance, department performance and other criteria
that the Committee believed to be indicative of performance.
As a
general matter, over 50% of targeted annual compensation to executive officers
took the form of performance-dependent, incentive cash and equity programs.
We believed that putting a significant portion of compensation at risk
provided an incentive to perform at the highest level and more closely aligned
the executive’s perspective with that of our shareholders.
As part
of making any compensation decision, the Compensation Committee reviewed market
compensation levels for executive officers at other restaurant companies (for
positions that are unique to our industry) or similarly-sized companies (for
other positions) to determine whether the compensation components for our
executive officers remain in the targeted ranges described in the following
paragraph. With the assistance of our Human Resources department and
a third party compensation consultant, management collected and presented
compensation data for our executive officers, including the Named Executive
Officers. Information regarding the restaurant industry was obtained
from the Chain Restaurant Compensation Association and the Committee’s
consultant. Information regarding the compensation for executives at
similarly-sized companies was obtained from the Committee’s consultant and from
published compensation surveys. The compensation surveys provided
data on pay practices for executive positions at companies with similar revenue
size, although they did not provide names of the reported
companies. The compensation assessment that was presented to the
Compensation Committee included an evaluation of base salary, target annual
incentive opportunities, long-term incentive grant values, and benefits for each
executive officer relative to similar positions in the market.
The
Compensation Committee set total targeted compensation for executives who held
positions unique to the restaurant industry (such as EVP of Operations) between
the 50
th
and
75
th
percentiles
of a set of restaurant companies of similar size. For other executive
positions, where both restaurant and general industry pay levels are relevant
for staffing and retention (such as Chief Financial Officer), the Compensation
Committee set targeted total compensation between the 50
th
and
75
th
percentiles
of comparable restaurant companies and the 50
th
percentile
of non-restaurant companies of a similar revenue size. The Committee
may have varied from these percentiles based on such factors as historic
compensation, individual skills, experience, contribution and performance,
internal equity, retention concerns and other factors relevant to the individual
executive. In addition, actual compensation (e.g., amounts earned and
paid each year) may have been higher or lower than targeted total compensation
based on our performance or the assessment of the executive’s
performance.
In setting base salaries for fiscal
2008, the Compensation Committee considered the following factors:
·
|
Internal analysis.
This is the relative pay difference for different job levels within
the Company.
|
·
|
Individual performance.
Increases to base salaries resulted from individual performance
assessments as well as an evaluation of the market and the mix among
various components of compensation. In setting Mr. Biglari’s
salary, the Committee considered his recent involvement with the Company
and his significant equity stake in the Company. In fiscal 2008
Mr. Biglari’s base salary was below the 50th percentile for chief
executive officers of similarly sized companies in the restaurant industry
and generally based on information available to the
Committee. The Compensation Committee also reviewed the
performance of the other Named Executive Officers. The Committee
believed that equity compensation would provide an appropriate incentive
to these executives to improve our performance and reward them for success
in their roles. A discussion of the mix between the two
components of equity compensation is in the “Long-Term Incentives” section
below.
|
·
|
Market
data.
While the Compensation Committee used industry and
general market data to test for the reasonableness and competitiveness of
base salaries, Committee members exercise subjective judgment within the
ranges in this data in view of our compensation objectives and individual
performance and
circumstances.
|
For fiscal 2008 the Compensation
Committee intentionally allocated a greater portion of targeted total
compensation to the performance-dependent elements. One way in which
it did this was to set what it believed to be aggressive, but reachable, targets
for fiscal 2008 under our Incentive Bonus Plan. The
Compensation Committee established a target incentive opportunity for each
participant, expressed as a percent of base salary. The Named Executive
Officers had target bonus opportunities set at 30% - 70% of their base
salaries. Mr. Biglari did not participate in the Company’s Incentive Bonus
Plan in fiscal 2008.
To arrive
at a payout number under the Incentive Bonus Plan, the target bonus opportunity
for each participant was multiplied by a formula based on our performance as
determined by targets for objective performance and measures and individual
performance goals. In fiscal 2008 the corporate performance measures were
growth in earnings before interest and taxes (“EBIT”) and same store sales over
the prior year. Individual performance was based on the successful
completion of defined projects during the fiscal year. The
individual performance modifier may have resulted in further modification of the
payout, since any upward adjustment for one participant must be offset by
downward adjustments for others. The formula used to compute bonus payouts
is set forth below:
|
Target Bonus
Amount
|
X
|
Corporate
Performance
Modifier
(0%
- 250%)
|
X
|
Individual
Performance
Modifier
(75%
-125%)
|
|
After the
end of the fiscal year, the Compensation Committee evaluates the Company’s
performance against the specific targets set at the beginning of the year and
modifies the bonus payout to 0% to 250% of the target. For fiscal 2008,
the targets for growth in EBIT and same store sales were as
follows:
Factors
|
|
Threshold(0%)
|
|
|
Target(100%)
|
|
|
Maximum(250%)
|
|
Same
Store Sales
|
|
|
-3.5
|
%
|
|
|
-2.0
|
%
|
|
|
0.0
|
%
|
EBIT
|
|
$
|
28.9M
|
|
|
$
|
29.6M
|
|
|
$
|
31.1M
|
|
In fiscal 2008, we did not achieve the
targets at the threshold level for either the same store sales or EBIT
performance measures. Consequently, we made no payments under the
Incentive Bonus Plan to any participant in fiscal 2008.
Equity-based incentives were a
significant element of total executive officer compensation. These
equity-based incentives consisted of stock options and restricted
stock.
The size of stock option grants for
executive officers was based primarily on the target dollar value of the award,
translated into a number of option shares based on the estimated economic value
of the award, as determined using the Black-Scholes option pricing
formula. As a result, the number of shares underlying stock option
awards has typically varied from year to year, as it was dependent on the price
of our stock. Subject to limits imposed by Section 422 of the
Internal Revenue Code, options granted to all employees were incentive stock
options.
In April 2008, the Compensation
Committee approved annual grants of stock options to each of the Named Executive
Officers (except Mr. Biglari). These options had an exercise price
equal to the market value of our stock on the date of grant. They
were granted under the 2008 Equity Incentive Plan, which was approved by our
shareholders in March 2008. These options vest over four years, at a
rate of 25% per year, beginning on the first anniversary of the
grant. They expire ten years from the date of grant. See
“Grants of Plan-Based Awards.”
We do not backdate options or grant
options or other equity awards retroactively. In addition, we do not
purposely schedule option awards or other equity grants prior to the disclosure
of favorable information or after the announcement of unfavorable
information. In general, equity-based incentive awards were made
during the Board meeting held in conjunction with the annual meeting, with
mid-year grants limited to newly hired or promoted employees.
Restricted stock awards provide the
recipient with shares of our stock, which the recipient may vote and for which
he may receive dividends during the vesting period. The recipient may
not transfer or assign the restricted shares for a period after the date of
grant, however, and if the recipient ceases to be our employee for any reason
other than death, disability or retirement during that period the shares will be
forfeited. The restriction on transfer is generally three (3) years,
although some new hires have received shares with a shorter period of
restriction. If the recipient ceases being our employee during the
vesting period as a result of retirement, death or disability then the recipient
(or his/her estate) will receive a pro rata amount of shares reflective of the
percent of the vesting period during which the recipient was
employed.
Perquisites
In fiscal 2009, perquisites provided to
executive officers were dramatically reduced, and are limited
to: (i) amounts we pay to group life insurance premiums for
coverage in excess of $50,000, (ii) personal use of a company car, and
(iii) business-related travel expenses deemed commuting. During 2009
the company car program was discontinued. Leases on company cars were
allowed to expire and in place of a vehicle certain executives received cash
stipends of $500 per month. See footnote (c) to the Summary
Compensation Table below for the perquisites provided to each Named Executive
Officer in fiscal 2009.
In fiscal
2008 we also provided a medical reimbursement plan which provided officers with
up to $3,500 in reimbursement for otherwise unreimbursed medical costs each
year, and a Company non-discretionary matching contribution of 50% of up to 6%
of the officer’s compensation contributed into the 401(k) Plan and deferred into
the Deferred Compensation Plan. The medical reimbursement plan was
discontinued in fiscal 2009.
Other
Benefits
Our executive officers also receive the
benefits provided to all employees, subject to satisfying the requirements for
participation. These benefits include: participation in the 401(k) Plan,
life insurance equal to their annual salary, group medical & dental plans,
short- and long-term disability insurance, and a lunch discount of 40% at Steak
n Shake restaurants on work days. The executive officers are also entitled
to participate in the Company's Deferred Compensation Plan, a plan which is only
open to those who are “highly compensated” under IRS regulations.
Employment Agreements,
Severance, and Change-in-Control Arrangements
Current
Structure
Mr. Biglari does not have an employment
agreement with the Company. On January 26, 2010, the Company and Mr.
Geiger terminated any prior agreement concerning employment, severance, or
change in control. Instead the Company and Mr. Geiger entered into a
new, simpler agreement. The new contractual obligation
stipulates that, only in the event Mr. Biglari ceases to be Chairman and Chief
Executive Officer of the Company, shall Mr. Geiger have the option of
terminating his employment with the Company and receiving a lump sum severance
payment equal to one year of his then current base compensation.
The new accord, unlike the prior one, does not contemplate or contractually
bind the Company to severance payment in the event of termination without
cause.
Employment
Agreements - 2009
During
fiscal 2009, we had employment agreements with two of the Named Executive
Officers, Messrs. Geiger and Janjua, both of which were entered into in fiscal
year 2008. Only Mr. Geiger was still employed as an executive officer
at the end of fiscal year 2009. Mr. Janjua did not receive any
benefits under his agreement upon his departure. These agreements (the
“Employment Agreements”) provide for the payment of benefits in the event the
executive’s employment is terminated without cause or in the event he terminates
his employment with good reason at any time. In establishing the
benefits to be provided under the Employment Agreements when they were entered
into in 2008, the Compensation Committee obtained benchmarking information from
its compensation consultant, considered which individuals were vital to retain
and evaluated the potential costs and benefits of the Employment
Agreements. The companies to which we benchmarked were chosen based
on industry, revenues, and number of employees and included DineEquity, Inc.,
Bob Evans Farms, Inc., California Pizza Kitchen, Inc., Cracker Barrel Old
Country Store, Inc., The Cheesecake Factory Incorporated, CKE Restaurants, Inc.,
Darden Restaurants, Inc., Domino’s Pizza, Inc., Jack in the Box, Inc., Max and
Erma’s, O’Charley’s, Inc., PF Chang’s China Bistro, Inc., Panera Bread Company,
Red Robin Gourmet Burgers, Inc., Ruby Tuesday, Inc., Sonic Corp., Starbucks
Corp., Yum! Brands, Inc., and Wendy’s/Arby’s Group, Inc. All of the
aforementioned companies were chosen because prior management viewed said firms
as direct competition.
The primary terms of the Employment
Agreements are provided below:
·
|
Stay Payment.
If
a Change in Control (as defined in the Employment Agreement) had occurred
prior to November 7, 2008, the employee would have received a
payment in an amount equal to 30% of his base
salary.
|
·
|
Termination Following Change
in Control.
In the event that employment is terminated within
one year of a Change in Control by us without “cause” (as defined in the
Employment Agreements) or by the employee for the reasons set forth
in Section 4 of the Employment Agreements (“good reason”), he will
receive: (a) a lump-sum severance payment equal to one year
of his base salary, (b) coverage under the group medical plan
for one year, (c) use of his Company-provided car for up to 60
days, (d) a lump-sum payment of a pro rata amount of the annual
incentive bonus to which he would have been entitled had he
been employed through the applicable bonus computation period, and
(e) reimbursement of up to $15,000 for outplacement
services.
|
·
|
Termination Without Cause or
Separation with Good Reason.
Should we terminate the
employee without cause, or should he decide to separate with good reason
at any time then he will receive: (a) his normal gross
salary, payable for one year; this amount will be reduced by the amount of
the compensation earned in any subsequent employment; (b)
a lump-sum payment equal to the pro rata portion of the annual
incentive bonus reflective of the number of days in the year the
individual was employed; (c) continued use of his Company owned automobile
for up to 60 days following separation or until provided with an
automobile by a subsequent employer; (d) continued participation in any
Company-provided group medical insurance plan for up to one year, or until
provided benefits by a subsequent employer; and (e) up to $15,000 for
outplacement services.
|
·
|
Executive’s
Obligations.
Prior to obtaining any benefits under the
Employment Agreements, the employee must waive any claims against us and
agree to keep confidential our confidential information and business
secrets. He also must agree not to solicit any of our employees for
one year following termination. We may recover any benefits paid
under the Employment Agreements if he breaches any of his obligations
under the Employment
Agreements.
|
Mr.
Roberts was hired on September 25, 2008, under a written offer
letter. The letter provided for a base salary and annual
discretionary cash bonus. He was also given a one-time grant of 2,500 stock
options (as adjusted for the 1-for-20 reverse stock split effective December 18,
2009) which vest at the rate of 20% on each of the first five anniversaries of
the grant, and a one-time grant of 843 shares of common stock (as adjusted for
the 1-for-20 reverse stock split) that vested over six months from the date of
grant. Both grants were made pursuant to the 2008 Equity Incentive
Plan, Mr. Roberts’ arrangement also provided for a severance payment equal to
six months of his then current salary in the event his employment is terminated
by the Company for any reason not constituting “just cause” under Indiana
law.
Effect of a
Change in Control, Death, Disability or Retirement on Equity Grants -
2009
In the event of the death of an option
recipient, then his/her estate may exercise the option in full at any time prior
to its expiration. In the event of an option recipient's retirement,
he/she may exercise any vested options within three months from the date of
retirement. Should an option recipient's employment end as a result
of a disability, then he/she would be able to exercise the options as if the
recipient had remained with the Company through (i) cessation of payments under
a disability pay plan of the Company, (ii) the recipient's death, or (iii) the
recipient's 65th birthday.
All prior restricted stock plans, the
2006 Steak n Shake Employee Stock Option Plan and the 2008 Equity Incentive Plan
contain provisions that accelerate the vesting of the awards upon a change in
control. Options granted under prior stock option plans may be accelerated
upon a change in control at the discretion of the Board of
Directors.
The number of unvested shares that
would vest on a change in control, and the value of those shares as of the end
of the fiscal year, is set forth in the table below entitled “Outstanding Equity
Awards at Fiscal Year End” under the column entitled “Number of Shares or Units
of Stock that Have Not Vested.”
As discussed under
Employment Agreements - Current
Structure
, the preceding discussion related only to agreements in place
during fiscal 2009 and Mr. Geiger's agreement has been superseded by a new
severance agreement as of January 26, 2010.
Deductibility Cap on
Executive Compensation
Section 162(m) of the Internal Revenue
Code prohibits publicly-held companies from taking a tax deduction for certain
compensation paid in excess of $1 million to the Chief Executive Officer
and each of the three other most highly compensated executive officers (other
than the Chief Financial Officer). Performance-based compensation remains
deductible. To qualify as performance-based compensation, the program
under which it is provided must be approved by shareholders and meet other
requirements. In fiscal 2009 we did not pay compensation that was
not deductible under Section 162(m).
Summary Compensation
Information
The following table shows the
compensation paid to the Company’s Chief Executive Officer, the Interim Chief
Financial Officer, and its other executive officers. (Mr. Roberts is no
longer considered an executive officer of the parent company. Mr. Janjua
and Mr. Murrill were not employed by the Company or its subsidiaries at the
end of fiscal 2009.)
SUMMARY
COMPENSATION TABLE
Name and
Principal
Position
|
|
Fiscal
Year
|
|
Salary ($)
|
|
|
Bonus ($)
|
|
|
Stock
Awards
($)
a
|
|
|
Option
Awards
($)
b
|
|
|
All Other
Compensation
c
|
|
|
Total
|
|
Sardar Biglari
,
Chairman and
|
|
2009
|
|
$
|
467,231
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
48,214
|
|
|
$
|
515,445
|
|
Chief
Executive Officer
|
|
2008
|
|
$
|
30,105
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
14,535
|
|
|
$
|
44,640
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Duane Geiger,
|
|
2009
|
|
$
|
194,712
|
|
|
$
|
90,000
|
|
|
$
|
62,957
|
|
|
$
|
43,218
|
|
|
$
|
8,185
|
|
|
$
|
399,072
|
|
Interim
Chief
|
|
2008
|
|
$
|
187,500
|
|
|
$
|
-
|
|
|
$
|
64,762
|
|
|
$
|
65,528
|
|
|
$
|
15,992
|
|
|
$
|
333,782
|
|
Financial
Officer, Vice President, Controller
|
|
2007
|
|
$
|
185,596
|
|
|
$
|
-
|
|
|
$
|
74,426
|
|
|
$
|
48,910
|
|
|
$
|
15,455
|
|
|
$
|
324,387
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dennis
Roberts,
Senior Vice President, Operations Excellence – Steak n
Shake Operations, Inc.
|
|
2009
|
|
$
|
212,423
|
|
|
$
|
-
|
|
|
$
|
150,000
|
|
|
$
|
138,748
|
|
|
$
|
10,267
|
|
|
$
|
511,438
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Omar Janjua
,
Former
Executive Vice President, Chief Operating Officer
|
|
2009
|
|
$
|
305,769
|
|
|
$
|
-
|
|
|
$
|
(124,177
|
)
|
|
$
|
41,742
|
|
|
$
|
7,173
|
|
|
$
|
230,507
|
|
(resigned
August 2009)
|
|
2008
|
|
$
|
300,000
|
|
|
$
|
-
|
|
|
$
|
100,374
|
|
|
$
|
49,769
|
|
|
$
|
50,836
|
|
|
$
|
500,979
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tom Murrill,
Former
Senior Vice President, Human Resources
|
|
2009
|
|
$
|
18,000
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
269,006
|
|
|
$
|
287,006
|
|
(resigned
September 2008)
|
|
2008
|
|
$
|
260,000
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
92,379
|
|
|
$
|
7,086
|
|
|
$
|
359,465
|
|
|
a.
|
Represents
the dollar amount of equity compensation cost recognized for financial
reporting purposes with respect to stock awards in fiscal 2009, excluding
the impact of estimated forfeitures for service-based vesting conditions,
as follows:
|
Name
|
|
Date of Grant
|
|
No. of Shares
|
|
|
Fiscal 2009
Expense
|
|
|
|
|
|
|
|
|
|
|
Mr.
Geiger
|
|
2/8/06
|
|
|
220
|
|
|
$
|
9,855
|
|
|
|
2/6/07
|
|
|
230
|
|
|
|
27,171
|
|
|
|
4/12/08
|
|
|
520
|
|
|
|
25,931
|
|
Total
|
|
|
|
|
|
|
|
$
|
62,957
|
|
|
|
|
|
|
|
|
|
|
|
|
Mr.
Roberts
|
|
9/28/08
|
|
|
843
|
|
|
$
|
150,000
|
|
|
|
|
|
|
|
|
|
|
|
|
Mr.
Janjua
|
|
6/13/07
|
|
|
770
|
|
|
$
|
(101,162
|
)
|
|
|
4/12/08
|
|
|
1000
|
|
|
|
(23,015
|
)
|
Total
|
|
|
|
|
|
|
|
$
|
(124,177
|
)
|
Negative
numbers reflect the benefit the Company realized when these grants were
forfeited upon the officer's departure from the Company during fiscal
2009. See Note 15 of Notes to Consolidated Financial Statements included
in Part II, Item 8 of our Form 10-K for a
description of the assumptions made in the valuation. The actual value
realized by the Named Executive Officer with respect to stock awards will depend
on the market value of our stock on the date the restricted stock vests, as
well as the date on which the stock is subsequently sold.
|
b.
|
Represents
the dollar amount of equity compensation cost recognized for financial
reporting purposes with respect to stock option awards in fiscal 2009,
excluding the impact of estimated forfeitures for service-based vesting
conditions, as follows:
|
Name
|
|
Date of Grant
|
|
No. of Shares Underlying
Options
|
|
|
Fiscal 2009 Expense
|
|
|
|
|
|
|
|
|
|
|
Mr.
Geiger
|
|
9/14/05
|
|
|
200
|
|
|
$
|
1,186
|
|
|
|
2/8/06
|
|
|
375
|
|
|
|
12,255
|
|
|
|
9/29/06
|
|
|
201
|
|
|
|
—
|
|
|
|
2/6/07
|
|
|
365
|
|
|
|
12,639
|
|
|
|
5/11/07
|
|
|
349
|
|
|
|
—
|
|
|
|
4/12/08
|
|
|
820
|
|
|
|
17,138
|
|
Total
|
|
|
|
|
|
|
|
$
|
43,218
|
|
|
|
|
|
|
|
|
|
|
|
|
Mr.
Roberts
|
|
9/28/08
|
|
|
2,500
|
|
|
$
|
138,748
|
|
|
|
|
|
|
|
|
|
|
|
|
Mr.
Janjua
|
|
6/13/07
|
|
|
1200
|
|
|
$
|
24,074
|
|
|
|
4/12/08
|
|
|
1585
|
|
|
|
17,668
|
|
Total
|
|
|
|
|
|
|
|
$
|
41,742
|
|
Negative
numbers reflect the benefit the Company realized when these grants were
forfeited upon the officer's departure from the Company during fiscal
2009. See Note 15 of Notes to Consolidated Financial Statements included
in Part II, Item 8 of our Form 10-K for a
description of the assumptions made in the valuation. The actual value
realized by the Named Executive Officer with respect to option awards will
depend on the difference between the market value of our stock on the date the
option is exercised and the exercise price. The information provided in the
table reflects the 1-for-20 reverse stock split effective as of the end of
business December 18, 2009.
|
c.
|
The
type and amount of the components of the figures in the “All Other
Compensation” column above for fiscal year 2009 are as
follows:
|
|
|
Mr.
Biglari
|
|
|
Mr. Geiger
|
|
|
Mr.
Roberts
|
|
|
Mr.
Janjua
|
|
|
Mr. Murrill
|
|
401(k)
matching contributions
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
Nonqualified
Deferred Compensation Plan matching contributions
|
|
$
|
—
|
|
|
$
|
361
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
Excess
life insurance
|
|
$
|
232
|
|
|
$
|
258
|
|
|
$
|
1,267
|
|
|
$
|
664
|
|
|
$
|
42
|
|
Automobile
expenses – personal use *
|
|
$
|
—
|
|
|
$
|
6,967
|
|
|
$
|
9,000
|
|
|
$
|
5,910
|
|
|
$
|
3,256
|
|
Executive
Medical Reimbursement Plan
|
|
$
|
—
|
|
|
$
|
599
|
|
|
$
|
—
|
|
|
$
|
599
|
|
|
$
|
—
|
|
Severance
Payments
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
265,708
|
|
Travel
expenses *
|
|
$
|
47,982
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
*
Pursuant to the SEC's requirements we are required to disclose our method for
determining the aggregate incremental cost of these items. These
amounts reflect our actual costs.
Plan-Based Award
Grants
The
following table sets forth specific information regarding the awards made under
our equity and non-equity incentive plans in fiscal 2009. All
information provided in the table is adjusted for the 1-for-20 reverse stock
split effective December 18, 2009.
GRANTS
OF PLAN-BASED AWARDS
Name
|
|
Grant
Date
|
|
All Other Stock
Awards: Number
of Shares of Stock
or Units
a
|
|
|
All Other Option
Awards: Number of
Securities Underlying
Options (#)
b
|
|
|
Exercise or Base
Price of Option
Awards ($/share)
|
|
|
Grant Date Fair
Value of Stock and
Option Awards ($)
c
|
|
Dennis Roberts
|
|
9/28/08
|
|
|
843
|
|
|
|
2,500
|
|
|
$
|
200.00
|
|
|
$
|
288,749
|
|
|
a.
|
Represents
restricted stock that vested six months after the date of
grant.
|
|
b.
|
These options
vest and become exercisable over five years, at a rate of 20% per year,
beginning on the first anniversary of the date of
grant.
|
|
c.
|
Amounts represent
the grant date fair value of stock options and restricted stock granted to
Mr. Roberts in fiscal 2009. For a discussion of the assumptions
made in the valuation, see Note 15 of the Notes to Consolidated Financial
Statements included in Part II, Item 8 of our Form 10-K for fiscal 2009
filed on December 14, 2009.
|
Outstanding Equity
Awards
The following table sets forth certain
information about outstanding option and stock awards held by the Named
Executive Officers as of the end of fiscal 2009. The information provided
in this table reflects the 1-for-20 reverse stock split effective as of the end
of business December 18, 2009.
OUTSTANDING
EQUITY AWARDS AT FISCAL YEAR END
|
|
Option Awards
|
|
Stock Awards
|
|
|
|
Unexercised Options
|
|
Equity Incentive Plan Awards
|
|
Name
|
|
Number of
Securities
Underlying
Unexercised
Options
Exercisable (#)
|
|
|
Number of
Securities
Underlying
Unexercised
Options
Unexercisable
(#)
|
|
|
Option
Exercise Price
($)
|
|
Option
Expiration
Date
|
|
Number of
Shares or
Units of Stock
that Have Not
Vested (#)
a
|
|
|
Market Value
of Shares or
Units of Stock
that Have Not
Vested ($)
b
|
|
Mr.
Biglari
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mr.
Geiger
|
|
|
200
|
d
|
|
|
|
|
|
345.00
|
|
9/14/10
|
|
|
|
|
|
|
|
|
|
201
|
e
|
|
|
|
|
|
343.40
|
|
9/29/11
|
|
|
|
|
|
|
|
|
|
349
|
e
|
|
|
|
|
|
324.40
|
|
5/11/12
|
|
|
|
|
|
|
|
|
|
281
|
c
|
|
|
94
|
|
|
|
349.40
|
|
2/8/16
|
|
|
|
|
|
|
|
|
|
183
|
c
|
|
|
182
|
|
|
|
354.40
|
|
2/6/17
|
|
|
|
|
|
|
|
|
|
205
|
|
|
|
615
|
c
|
|
|
149.60
|
|
4/12/18
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
230
|
|
|
$
|
54,142
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
520
|
|
|
$
|
122,408
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mr. Roberts
|
|
|
500
|
|
|
|
2,000
|
|
|
|
200.00
|
|
9/28/18
|
|
|
|
|
|
|
|
|
|
a.
|
All
restricted stock grants have a three year cliff-vesting period.
Those granted prior to April 2008 were granted with an equal amount of
book units. See "Compensation Discussion and Analysis — Components
of Total Compensation — Long-Term Incentives — Restricted Stock" for
additional information regarding these
shares.
|
|
b.
|
Market
value is computed based on a price of $235.40, which was the closing price
of our common stock on the last day of fiscal 2009 adjusted for the
1-for-20 reverse split effective end of business December 18,
2009.
|
|
c.
|
These
options vest at a rate of 25% per year beginning on the first anniversary
of the date of grant and expire ten years from the date of grant; they do
not contain a reload feature.
|
|
d.
|
These
options vest at a rate of 20% per year beginning on the date of grant and
expire five years from the date of grant; they also contain a reload
feature.
|
|
e.
|
These
are "reload" options which were granted pursuant to the 1997 Employee
Stock Option Plan. Reload options are granted in an amount equal to
the number of shares used to pay the exercise price on the underlying
stock options. They are vested immediately and expire five years
from date of grant. Beginning in February 2006 we ceased issuing
options with a reload feature.
|
Award Exercise and
Vesting
The following table sets forth the
number of options exercised in fiscal 2009, along with the value received as a
result of the exercise. It also shows the number of shares of restricted
stock that vested during the year, with concurrent vesting of book units, and
the resulting value realized by the Named Executive Officer. The
information provided in this table reflects the 1-for-20 reverse stock split
effective as of the end of business December 18, 2009.
OPTION EXERCISES AND STOCK VESTED
|
|
|
|
|
|
Stock Awards
|
|
Name
|
|
Number of Shares Acquired on Vesting
|
|
|
Value Realized on Vesting
a
|
|
Mr.
Geiger
|
|
|
220
|
|
|
$
|
31,240
|
|
Mr.
Roberts
|
|
|
843
|
|
|
$
|
127,560
|
|
|
a.
|
Mr.
Geiger had stock vest on February 8, 2009. Mr. Roberts had stock vest
March 29,2009. The amount in this column includes the value of the
restricted stock on the date of vesting, based on the closing price of our
common stock on the date of vesting, or immediately prior thereto if the
vesting date was not a trading day ($135.40 for the February 8, 2009
vesting as adjusted for the 1-for-20 reverse split), and the value of book
units which vested in conjunction with the shares of restricted
stock. The book units associated with the February 8, 2009 vesting
were $0.33. The March 29, 2009 vesting price was $151.20 as
adjusted for the 1-for-20 reverse stock split and did not have book units
associated with it. Mr. Roberts’ grant contained what would be
fractional shares had the 1-for-20 reverse split occurred prior to its
vesting.
|
Retirement
Benefits
We maintain two plans that provide
retirement income to all eligible employees, including the Named Executive
Officers:
401(k)
Plan
The Steak
n Shake Company 401(k) Savings Plan (the “Plan”) is a defined contribution plan
covering substantially all employees, including the Named Executive Officers,
after they have attained age 21 and completed six months of service and allows
employees to defer up to 20% of their salaries. The Company made
non-discretionary matching contributions through October 14, 2008. The
matching contributions during fiscal years 2008 and 2007 were equal to 50% of
participants’ pretax contributions and subject to a maximum of 6% of
participants’ eligible compensation contributed to the Plan. During
October 2008, the Plan was amended to eliminate the non-discretionary
contributions and allow for discretionary matching contributions. No
discretionary matching contributions were made in fiscal year 2009. However,
subsequent to year end, discretionary matching contributions have been resumed
in fiscal year 2010. Going forward, discretionary contributions will be based on
the profitability of the Company and subject to quarterly
revision. The Named Executive Officers and other “highly compensated
employees” (as that term is defined by IRS regulations) are limited to
contributing 1% of their cash compensation to the 401(k) Plan.
Nonqualified Deferred Compensation
Plan
The
Nonqualified Deferred Compensation Plan (“Deferred Compensation Plan”) is
available to all highly compensated employees, including the Named Executive
Officers. Investment options offered under the Deferred Compensation
Plan are identical to those offered in the 401(k) Plan. Before a
participant may make contributions under the Deferred Compensation Plan, the
participant must first contribute 1% of their earnings to the 401(k)
Plan. Until November 2008 we matched participant contributions in the
amount of 50% of the aggregate deferrals into both plans, up to 6% of the
participant’s cash compensation. Matching contributions were
suspended in November 2008 until such time as the Company becomes profitable
again. Total deferrals under both the Deferred Compensation Plan and
401(k) Plan are limited to 20% of the aggregate of a participant’s salary and
annual incentive bonus, which means that as a result of the 1% of compensation
deferred to the 401(k) Plan, the most a participant may defer to the Deferred
Compensation Plan is 19% of their total cash compensation. Matching
contributions under the Deferred Compensation Plan vest over the first six years
of employment, at a rate of 20% per year beginning on the second anniversary of
employment. A participant’s account balance will be distributed at a time
directed by the participant. Participants may elect that
distributions be made in a lump sum or in equal annual installments over a
period of up to ten (10) years. Withdrawals from the Deferred
Compensation Plan are limited to the withdrawal of participant contributions in
cases of financial hardship.
The following table describes the
contributions, earnings, and balance at the end of fiscal 2009 for each of the
Named Executive Officers who participated in the Deferred Compensation
Plan.
NONQUALIFIED
DEFERRED COMPENSATION
Name
|
|
Executive
Contributions in
Last Fiscal Year
a
|
|
|
Company
Contributions
in Last Fiscal
Year
b
|
|
|
Aggregate
Earnings in
Last Fiscal
Year
|
|
|
Distributions in
Last Fiscal Year
|
|
|
Aggregate
Balance at Last
Fiscal Year-end
|
|
Mr.
Geiger
|
|
$
|
2,524
|
|
|
$
|
361
|
|
|
$
|
(10,513
|
)
|
|
$
|
41,266
|
|
|
$
|
—
|
|
|
a.
|
The
amounts in this column are also included in the Summary Compensation Table
in the “Salary” column.
|
|
b.
|
The
amounts in this column are also included in the Summary Compensation Table
in the “All Other Compensation”
column.
|
Potential Payments Upon
Termination of Employment
As discussed above in “Compensation
Discussion and Analysis – Employment Agreements, Severance and Change-in-Control
Arrangements
–
Effect of
a Change in Control, Death, Disability or Retirement on Equity Grants,” some of
our equity awards accelerate upon a change in control or upon the retirement,
death or disability of the holder. Also, two of the Named Executive
Officers, Mr. Geiger and Mr. Roberts, had an agreement in fiscal 2009 that
would have provided him with benefits upon the occurrence of one or more of
these events. The following table sets forth for Mr. Geiger and Mr.
Roberts, the aggregate value that he would receive as a result of any of the
foregoing events if they had occurred on September 30, 2009. No
amounts would be payable to Mr. Biglari upon his termination.
|
|
Resignation
|
|
|
Death,
Disability or
Retirement
|
|
|
Termination
a
|
|
|
Change in
Control
b
|
|
|
Qualifying
Termination Within
One Year of a Change
in Control
c
|
|
Mr.
Geiger
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restricted
Stock
e
|
|
|
—
|
|
|
$
|
176,550
|
|
|
|
—
|
|
|
$
|
176,550
|
|
|
|
—
|
|
Stock
Options
d
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
70,356
|
|
|
|
—
|
|
Stay
Payment
f
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
58,414
|
|
|
|
—
|
|
Severance
Payment
g
|
|
|
—
|
|
|
|
—
|
|
|
$
|
194,712
|
|
|
|
—
|
|
|
$
|
194,712
|
|
Health
Care Coverage
h
|
|
|
—
|
|
|
|
—
|
|
|
$
|
8,500
|
|
|
|
—
|
|
|
$
|
8,500
|
|
Company
Car
i
|
|
|
—
|
|
|
|
—
|
|
|
$
|
1,100
|
|
|
|
—
|
|
|
$
|
1,100
|
|
Outplacement
Services
j
|
|
|
—
|
|
|
|
—
|
|
|
$
|
15,000
|
|
|
|
—
|
|
|
$
|
15,000
|
|
Mr.
Roberts
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Severance
Payment
g
|
|
|
|
|
|
|
|
|
|
$
|
84,000
|
|
|
|
|
|
|
|
|
|
|
a.
|
Amounts
in this column include payments made upon termination by us without cause
or by the employee with good reason, but exclude payments made upon or
following a change in control.
|
|
b.
|
Amounts
in this column reflect payments or acceleration of benefits that would
occur upon a change in control without termination of
employment.
|
|
c.
|
Amounts
in this column are payable only if the employment of the Named Executive
Officer is terminated by us without cause or if the Named Executive
Officer leaves for good reason within one year following a change in
control.
|
|
d.
|
Reflects
the excess of the closing price of $235.40 for our stock on the last day
of fiscal 2009 (as adjusted for the 1-for-20 reverse stock split), over
the exercise price of outstanding options currently vested and any
unvested stock options, the vesting of which would accelerate as a result
of the Named Executive Officer's termination of employment on September
24, 2008 as a result of the specified termination event, multiplied by the
number of shares of our stock underlying the stock
options.
|
|
e.
|
Reflects
the closing price of $235.40 for our stock on the last day of fiscal 2009
(as adjusted for the 1-for-20 reverse stock split), multiplied by the
number of shares of restricted stock that would vest as a result of the
Named Executive Officer's termination of employment on September 30, 2009
as a result of the specified termination event, plus the value of accrued
book units through September 30,
2009.
|
|
f.
|
Reflects
the payment of 30% of the Named Executive Officer's salary immediately
upon a change in control.
|
|
g.
|
Amounts
represent one year of salary payable to Mr. Geiger and six months payable
to Mr. Roberts.
|
|
h.
|
Amounts
represent one year of coverage under our group medical plans at the level
currently elected by the
individual.
|
|
i.
|
Amounts
represent the use of the Named Executive Officer's company car for up to
60 days after termination of
employment.
|
|
j.
|
Reflects
the maximum amount of outplacement services for which the Named Executive
Officer may be reimbursed by
us.
|
For a
description of the terms of the employment agreements for Mr. Geiger, see
“Compensation Discussion and Analysis – Employment Agreements, Severance and
Change-in-Control Arrangements – Employment Agreements.”
Governance,
Compensation, and Nominating Committee Report
The Governance, Compensation, and
Nominating Committee of the Board of Directors is composed of the persons
identified below. We have reviewed and discussed with management the
Compensation Discussion and Analysis contained in this report. Based
on our review and discussions with management, we recommended to the Board of
Directors that the Compensation Discussion and Analysis be included in the
Company’s Annual Report on Form 10-K/A for the fiscal year ended September 3,
2009, and this proxy statement. Submitted by the members of the
Governance, Compensation, and Nominating Committee of the Board of
Directors:
John W.
Ryan, William J. Regan, Jr., Ruth J. Person, and Philip
L.Cooley.
Section
16(a) Beneficial Ownership Reporting Compliance
Section
16(a) of the Securities Exchange Act of 1934 requires the Corporation’s officers
and directors, and persons who own more than ten percent of a registered class
of the Corporation’s equity securities, to file reports of ownership and changes
in ownership with the Securities and Exchange Commission and the New York Stock
Exchange. Officers, directors and greater than ten-percent
shareholders are required by SEC regulation to furnish the Corporation with
copies of all Section 16(a) forms they file.
Based
solely on its review of the copies of such forms received by it, and written
representations from certain reporting persons that no Section 16(a) forms were
required for those persons, the Corporation believes that during 2008 all filing
requirements applicable to its officers, directors, and greater than ten-percent
shareholders were complied with.
Security
Ownership of Certain Beneficial Owners and Management
The
following table shows as of March 1, 2010, the number and percentage of
outstanding shares of our common stock beneficially owned by each person or
entity known to be the beneficial owner of more than 5% of our common
stock:
Name & Address of Beneficial Owner
|
|
Amount and Nature of
Beneficial
Ownership
|
|
|
Percent of Class
|
|
The
Lion Fund, L.P.
9311
San Pedro Ave. Suite 1440
San
Antonio, TX 78216
|
|
|
98,067
|
(1)
|
|
|
6.8
|
%
|
Blackrock,
Inc.
40
East 52nd Street
New
York, NY 10022
|
|
|
97,842
|
(2)
|
|
|
6.8
|
%
|
|
(1)
|
The
Lion Fund, L.P., Biglari Capital Corp., Western Acquisitions, L.P.,
Western Investments, Inc., Sardar Biglari, Western Sizzlin Corp., Mustang
Capital Partners I, L.P., Mustang Capital Partners II, L.P., Mustang
Capital Advisors, L.P., Mustang Capital Management, L.L.C., Western
Mustang Holdings, L.L.C., and Philip Cooley share voting power over
the shares. Various individuals have dispositive power over certain
amounts of the securities. Sardar Biglari is deemed to have
beneficial ownership of the Securities owned beneficially by each of the
listed persons.
|
|
(2)
|
This
information was obtained from a Schedule 13G filed with the SEC on January
29, 2010.
|
The
following table shows the total number of shares of our common stock
beneficially owned as of March 1, 2010 and the percentage of outstanding
shares for (i) each director, (ii) each executive officer named in the
Summary Compensation Table, and (iii) all directors and executive officers, as a
group:
Name of Beneficial Owner
|
|
Amount and Nature of
Beneficial Ownership
(1)
|
|
|
Percent of Class
|
|
Sardar
Biglari
|
|
|
98,067
|
(1)
|
|
|
6.8
|
%
|
Philip
L. Cooley
|
|
|
4,081
|
(2)
|
|
|
*
|
|
Duane
E. Geiger
|
|
|
3,168
|
(3)
|
|
|
*
|
|
Dennis
Roberts
|
|
|
251
|
(4)
|
|
|
*
|
|
Omar
Janjua
|
|
|
1,906
|
(5)
|
|
|
*
|
|
Thomas
Murrill
|
|
|
—
|
(6)
|
|
|
—
|
|
Ruth
J. Person
|
|
|
793
|
(7)
|
|
|
*
|
|
William
J. Regan, Jr.
|
|
|
573
|
(8)
|
|
|
*
|
|
J.
Fred Risk
|
|
|
3,213
|
(9)
|
|
|
*
|
|
John
W. Ryan
|
|
|
1,252
|
(10
)
|
|
|
*
|
|
Steven
M. Schmidt
|
|
|
903
|
(11)
|
|
|
*
|
|
Edward
Wilhelm
|
|
|
691
|
(12)
|
|
|
*
|
|
All
directors and executive officers as a group (12 persons)
|
|
|
110,817
|
(13)
|
|
|
7.7
|
%
|
*Less
than 1%.
All
information provided in the table reflects the 1-for-20 reverse stock split
effective as of the end of business December 18, 2009.
|
(1)
|
Although
Mr. Biglari exercises beneficial ownership over these shares, they are
controlled/owned through related entities including Dr.
Cooley.
|
|
(2)
|
Includes
550 shares by Dr. Cooley's spouse.
|
|
(3)
|
Includes 1,604
shares that may be acquired pursuant to stock options exercisable within
60 days.
|
|
(4)
|
This
information was taken from the last Form 4 filed with the SEC by Mr.
Roberts
|
|
(5)
|
This
information was taken from the last Form 4 Mr. Janjua filed with the
SEC.
|
|
(6)
|
This
information was taken from the last Form 4 Mr. Murrill filed with the
SEC.
|
|
(7)
|
Includes
437 shares that may be acquired pursuant to stock options exercisable
within 60 days.
|
|
(8)
|
This
information was taken from the last Form 4 Mr. Regan, Jr. filed with the
SEC.
|
|
(9)
|
Includes
437 shares that may be acquired pursuant to stock options exercisable
within 60 days. Also includes 723 shares held by Mr. Risk’s spouse,
regarding which he disclaims beneficial
ownership.
|
|
(10)
|
Includes 437
shares that may be acquired pursuant to stock options exercisable within
60 days.
|
|
(11)
|
Includes 687
shares that may be acquired pursuant to stock options exercisable within
60 days.
|
|
(12)
|
Includes 375
shares that may be acquired pursuant to stock options exercisable within
60 days.
|
|
(13)
|
Includes 2,373
shares that may be acquired pursuant to stock options exercisable within
60 days.
|
Independent
Public Accountants
Deloitte & Touche, LLP has
advised us that they have billed or will bill us the following amounts for
services for each of the last two fiscal years.
Type of Fee
|
|
Fiscal 2009
|
|
|
Fiscal 2008
|
|
Audit
Fees
(1)
|
|
$
|
366,000
|
|
|
$
|
409,000
|
|
Audit-Related
Fees
(2)
|
|
$
|
105,085
|
|
|
$
|
—
|
|
Tax
Fees
(3)
|
|
$
|
—
|
|
|
$
|
24,589
|
|
Total
Fees for the Applicable Fiscal Year
|
|
$
|
471,085
|
|
|
$
|
433,589
|
|
|
(1)
|
Audit
fees include fees for services performed for the audit of our annual
financial statements including services related to Section 404 of the
Sarbanes-Oxley Act and review of financial statements included in our Form
10-Q filings, Form 10-K filing and Form S-8 Registration statements,
comment letters and services that are normally provided in connection with
statutory or regulatory filings or
engagements.
|
|
(2)
|
Audit-Related
Fees include fees for assurance and related services performed that are
reasonably related to the performance of the audit or review of our
financial statements. This includes services provided related to the
Western Sizzlin transaction.
|
|
(3)
|
Tax
Fees are fees for services performed with respect to tax compliance, tax
advice and other tax review.
|
The Audit Committee's policy is to
pre-approve all audit and permissible non-audit services provided by the
independent registered public accounting firm. These services may
include audit services, audit-related services, tax services and other
services. Pre-approval is generally provided for up to one year and
any pre-approval is detailed as to the particular service or category of
services and is generally subject to a specific budget. The
independent auditor and management are required to report periodically to the
Audit Committee regarding the extent of services provided by the independent
auditor in accordance with this pre-approval, and the fees for the services
performed to date. The Audit Committee may also pre-approve
particular services on a case-by-case basis. In fiscal 2009, the
Audit Committee pre-approved the services reported above as audit-related
services and tax fees and Deloitte & Touche LLP did not provide any
non-audit services during such year.
Representatives of Deloitte &
Touche LLP will be present at the annual meeting, will have an opportunity to
make a statement, and will be available to respond to appropriate
questions.
Report
of the Audit Committee
We have reviewed and discussed the
consolidated financial statements of the Corporation and its subsidiaries set
forth in Item 8 of the Corporation’s Annual Report on Form 10-K for the fiscal
year ended September 30, 2009 with management of the Corporation and Deloitte
& Touche LLP, independent public accountants for the
Corporation.
We have discussed with Deloitte &
Touche LLP the matters required to be discussed by Statement on Auditing
Standards No. 114, “The Auditor’s Communication With Those Charged With
Governance,” Statement on Auditing Standards No. 99, “Consideration of Fraud in
a Financial Statement Audit” and Securities and Exchange Commission rules
regarding auditor independence discussed in Final SEC Releases Nos. 33-8183 and
33-8183a.
We have received the written
disclosures and the letter from Deloitte & Touche LLP required by the
applicable PCAOB requirements for independent accountant communications with
audit committees with respect to auditor independence and have discussed with
Deloitte & Touche LLP its independence from the Corporation.
Based on the review and discussions
with management of the Corporation and Deloitte & Touche LLP referred to
above, we recommended to the Board of Directors that the Corporation include the
consolidated financial statements of the Corporation and subsidiaries for the
fiscal year ended September 30, 2009 in the Corporation’s Annual Report on Form
10-K for the year ended September 30, 2009.
It is not the duty of the Audit
Committee to plan or conduct audits or to determine that the Corporation’s
financial statements are complete and accurate and in accordance with generally
accepted accounting principles; that is the responsibility of
management and the Corporation’s independent public accountants. In
giving its recommendation to the Board of Directors, the Audit Committee has
relied on (i) management’s representation that such financial statements have
been prepared with integrity and objectivity and in conformity with generally
accepted accounting principles and (ii) the reports of the Corporation’s
independent public accountants with respect to such financial
statements.
Submitted by the members of the Audit
Committee of the Board of Directors.
Philip L. Cooley, Chairman
Ruth J. Person
John W. Ryan
William J. Regan, Jr.
2.
|
RATIFICATION
OF SELECTION OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM.
|
The Audit Committee has selected
Deloitte & Touche LLP (“”Deloitte”) as our independent registered public
accounting firm for fiscal 2010. Deloitte has served in that capacity
since fiscal 2004.
If the shareholders do not ratify the
selection of Deloitte, the Audit Committee will reconsider its choice, taking
into consideration the views of the shareholders, and may (but will not be
required to) appoint a different firm to serve in that capacity for fiscal
2010.
3. TO
AMEND THE RESTATED ARTICLES OF INCORPORATION TO DELETE AN UNNECESSARY POST
OFFICE ADDRESS, REMOVE NONESSENTIAL DETAILED LANGUAGE ABOUT THE BUSINESS’S
PURPOSE, AND TO CHANGE THE NAME OF THE HOLDING COMPANY.
Reasons
for the Proposed Amendment
Removing
the “post office address” reference in Article IV, Section 2, is a
“housekeeping” matter that is of no legal significance. Indiana law
stipulates that a corporation’s principal office within or outside the state is
set forth in its annual report filed with the Secretary of State, or as adjusted
by a “change of address” filing with the Secretary of State. This
information is not required to be expressly set forth in the Articles of
Incorporation. Accordingly, to avoid misleading anyone who reads our
Restated Articles of Incorporation into interpreting the “mailing address” set
forth in Article IV, Section 2, as accurate, we believe it advisable and in the
best interests of the shareholders to expunge this reference by adopting the
proposed Amendment.
The
corporate purpose clause currently set forth in the Company’s
Articles provides that we may engage in any lawful act or activity
for which corporations may be organized under Indiana law. The
purpose clause also includes additional detailed language. Our Board
of Directors believes it would be advisable to remove this unnecessary language
while retaining the language authorizing us to engage in any lawful
business. The adoption of the proposal would have no effect on the
operation of our business. In light of these facts, the “specific purposes” of
the Company set forth in Article II, Section I — to “engage in the restaurant
business” and to undertake several enumerated activities incidental but
necessary to the operation of a restaurant business — are no longer consistent
with our diversified holding company format. In fact, the specific purpose
statement is symbolic given that the general purpose statement in Article II,
Section 2 of our Articles of Incorporation allows the Company to engage in “any
lawful activity or business whatsoever.” Nevertheless, in order that
our Restated Articles of Incorporation remain a congruent statement of the
Company’s business purpose and direction, the Board of Directors recommends
adoption of this Amendment.
The
Company's plan is to change its corporate name from The Steak n Shake Company to
Biglari Holdings Inc. This adjustment is to delineate more clearly the parent
company's new direction as a diversified holding company as well as to eliminate
confusion between the activities of the holding company and those of our
wholly-owned subsidiary, Steak n Shake Operations Inc. In addition, the
Company’s pending merger with Western Sizzlin Corporation, expected to be
complete in the coming weeks, will diversify our business holdings
further. Currently, the parent company shares the name with a
subsidiary, thereby engendering confusion among the media and various
stakeholders, such as consumers, because any time the Company engages in
corporate activity (e.g., announcing an acquisition) it is very difficult to
distinguish between the restaurant chain subsidiary and that of the parent
holding company. The name recognition and associated goodwill with the
restaurant chain will be better protected since these will be focused at the
subsidiary level rather than be misinterpreted by activities of the parent.
Consequently, the name change more accurately reflects the nature of the
Company’s overall functions. The Board believes a change in the Company’s name
is necessary and thus in the best interests of the shareholders.
The NYSE
has approved and reserved the trading symbol BH, under which the Company will
commence trading a day after the majority of shareholders approve the change in
name. The corporate name change will become effective upon the filing with the
Secretary of State of Indiana the proposed Amendment, in accordance with Indiana
law, which the Company expects to occur promptly after the Annual
Meeting.
If this
proposed Amendment to our Restated Articles of Incorporation is
approved by our shareholders, we resolve promptly to file the Amendment to
our charter with the Indiana Secretary of State.
The above
description is only a summary of the proposed Amendment to our Restated Articles
of Incorporation. Shareholders are encouraged to read the full text
of the amendment as set forth in Exhibit A.
Vote
Required
If a
quorum of shareholders is present, approval of Proposal No. 3 to amend the
Company’s Restated Articles of Incorporation as described above will require
that the votes of Common Stock cast in favor of the proposal exceed the votes of
Common Stock cast against the proposal.
Our
Board of Directors unanimously recommends that shareholders vote FOR approval of
Proposal No. 3.
As of the date of this statement your
management knows of no business to be presented to the meeting that is not
referred to in the accompanying notice other than the approval of the minutes of
the last Annual Meeting of Shareholders, which action will not be construed as
approval or disapproval of any of the matters referred to in such
minutes. As to other business that may properly come before the
meeting, it is intended that proxies properly executed and returned will be
voted in respect thereof at the discretion of the person voting the proxies in
accordance with his or her best judgment, including upon any shareholder
proposal about which the Corporation did not receive timely notice.
Annual
Report
The Corporation’s Annual Report on Form
10-K for the fiscal year ended September 30, 2009 accompanies this proxy
statement, but is not deemed a part of the proxy soliciting
material.
A copy of the 2009 Form 10-K report, as
amended, as required to be filed with the Securities and Exchange Commission,
excluding exhibits, will be mailed to shareholders without charge upon written
request to the Secretary of the Corporation at 175 East Houston Street, Suite
1300, San Antonio, Texas 78205. Such request must set
forth a good-faith representation that the requesting party was either a holder
of record or a beneficial owner of the Common Stock of the Corporation on March
1, 2010. Exhibits to the Form 10-K will be mailed upon similar
request and payment of specified fees. The 2009 Form 10-K, as
amended, is also available through the Securities and Exchange Commission’s
World Wide Web site (www.sec.gov).
Proposals
of Shareholders
Any shareholder proposal intended to be
considered for inclusion in the proxy statement for presentation at the 2011
Annual Meeting must be received by the Corporation by November 8,
2010. The proposal must be in accordance with the provisions of Rule
14a-8 promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934. It is suggested the proposal be submitted by
certified mail – return receipt requested. The Corporation reserves
the right to reject, rule out of order, or take other appropriate action with
respect to any proposal that does not comply with these and other applicable
requirements.
|
By
order of the Board of Directors
|
|
|
San
Antonio, Texas
|
SARDAR
BIGLARI,
Chairman and
Chief Executive Officer
|
March
8, 2010
|
|
EXHIBIT
A
ARTICLES
OF AMENDMENT
OF
THE
AMENDED
AND RESTATED
ARTICLES
OF INCORPORATION
OF
THE STEAK N SHAKE
COMPANY
The undersigned officer of
The Steak n Shake Company
(hereinafter referred to as the “Corporation”) existing pursuant to the
provisions of the Indiana Business Corporation Law, as amended, (hereinafter
referred to as the “Law”), desiring to give notice of corporate action
effectuating amendment of certain provisions of its Articles of Incorporation,
certifies the following facts:
SECTION
1:
The date of incorporation of
the Corporation is December 15, 1976.
SECTION
2:
The name of the Corporation
following this amendment to the Articles of Incorporation is “
BIGLARI HOLDINGS
INC.
”
ARTICLE
I
Amendments
SECTION
1
: The exact text of Article I
of the Articles of Incorporation is now as follows:
NAME
The name
of the Corporation is
BIGLARI
HOLDINGS INC.
SECTION
2:
The exact text of Article II
of the Articles of Incorporation is now as follows:
PURPOSES
The purpose for which the Corporation
is formed is to transact any and all lawful business for which corporations may
be incorporated under the Indiana Business Corporation Law (the
“Act”).
SECTION
3:
The exact text of Article IV
of the Articles of Incorporation is now as follows:
REGISTERED
AGENT
The name of the Resident Agent of the
Corporation is Corporation Service Company. The street address of the
Corporation’s registered office is 251 E. Ohio Street, Suite 500, Indianapolis,
Indiana 46204.
ARTICLE
III
Manner of Adoption and
Vote
The
amendments set forth in these Articles of Amendment to the Amended and Restated
Articles of Incorporation were approved by unanimous vote of the Board of
Directors of the Corporation at a meeting on January 25, 2010, and adopted by
the shareholders of the Corporation at a meeting of the Shareholders on April 8,
2010.
The manner of adoption of these
Articles of Amendment and the vote by which they were adopted constitute full
legal compliance with the provisions of the Act, the Restated Articles
Incorporation, as amended, and the Code of By-Laws of the
Corporation.
I hereby verify subject to the
penalties of perjury that the statements included herein are true.
|
The
Steak n Shake Company
|
|
|
Date:________________
|
By:
|
|
|
Its:
|
|
THE
STEAK N SHAKE COMPANY
175
EAST HOUSTON STREET
SUITE
1300
SAN
ANTONIO, TX 78205
|
|
|
VOTE
BY INTERNET - www.proxyvote.com
Use
the Internet to transmit your voting instructions and for electronic
delivery of information up until 11:59 P.M. Eastern Time the day before
the cut-off date or meeting date. Have your proxy card in hand when you
access the web site and follow the instructions to obtain your records and
to create an electronic voting instruction form.
Electronic
Delivery of Future PROXY MATERIALS
If
you would like to reduce the costs incurred by our company in mailing
proxy materials, you can consent to receiving all future proxy statements,
proxy cards and annual reports electronically via e-mail or the Internet.
To sign up for
|
|
Investor
Address Line 1
Investor
Address Line 2
Investor
Address Line 3
Investor
Address Line 4
Investor
Address Line 5
John
Sample
1234
ANYWHERE STREET
ANY
CITY, ON A1A 1A1
|
1
OF
2
1
1
|
|
electronic
delivery, please follow the instructions above to vote using the Internet
and, when prompted, indicate that you agree to receive or access proxy
materials electronically in future years.
VOTE
BY PHONE - 1-800-690-6903
Use
any touch-tone telephone to transmit your voting instructions up until
11:59
P.M.
Eastern Time the day before the cut-off date or meeting date. Have your
proxy card in hand when you call and then follow the
instructions.
VOTE
BY MAIL
Mark,
sign and date your proxy card and return it in the postage-paid envelope
we have provided or return it to Vote Processing, c/o Broadridge, 51
Mercedes Way, Edgewood, NY 11717.
|
|
|
|
|
|
|
CONTROL # →
|
000000000000
|
|
|
|
|
|
NAME
|
|
|
|
|
|
|
|
THE
COMPANY NAME INC. - COMMON
|
SHARES
|
123,456,789,012.12345
|
THE
COMPANY NAME INC. - CLASS A
|
|
123,456,789,012.12345
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THE
COMPANY NAME INC. - CLASS B
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123,456,789,012.12345
|
THE
COMPANY NAME INC. - CLASS C
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123,456,789,012.12345
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THE
COMPANY NAME INC. - CLASS D
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123,456,789,012.12345
|
THE
COMPANY NAME INC. - CLASS E
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123,456,789,012.12345
|
THE
COMPANY NAME INC. - CLASS F
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123,456,789,012.12345
|
THE
COMPANY NAME INC. - 401 K
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123,456,789,012.12345
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PAGE
1
OF
2
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TO VOTE,
MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS:
x
KEEP
THIS PORTION FOR YOUR RECORDS
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DETACH
AND RETURN THIS PORTION
ONLY
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THIS
PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
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For
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Withhold
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For
All
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To
withhold authority to vote for any
individual
nominee(s), mark “For All Except” and write the number(s)
of the
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nominee(s)
on the line below.
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The
Board of Directors recommends that you vote FOR the
following:
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o
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o
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o
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1.
Election of Directors
Nominees
01 Sardar
Biglari 02 Philip
L.
Cooley 03 Ruth
J.
Person 04 William
J. Regan,
Jr. 05 John
W. Ryan
The
Board of Directors recommends you vote FOR the following
proposal(s):
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For
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Against
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Abstain
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2
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To
ratify the selection by the Audit Committee of the Board of Directors of
Deloitte & Touche LLP as the Corporation’s independent registered
public accounting firm for the 2010 fiscal year.
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o
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o
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o
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3
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To
amend the Restated Articles of Incorporation to delete an unnecessary post
office address, remove nonessential detailed language about the business's
purpose, and to change the name of the holding company.
|
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o
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o
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o
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NOTE:
Such other business as may properly come before the meeting or any
adjournment thereof.
Please
sign exactly as your name(s) appear(s) hereon. When signing as attorney,
executor, administrator, or other fiduciary, please give full title as
such. Joint owners should each sign personally. All holders must sign. If
a corporation or partnership, please sign in full corporate or partnership
name, by authorized officer.
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Investor
Address Line 1
Investor
Address Line 2
Investor
Address Line 3
Investor
Address Line 4
Investor
Address Line 5
John Sample
1234
ANYWHERE STREET
ANY
CITY, ON A1A 1A1
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JOB #
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SHARES
CUSIP
#
SEQUENCE #
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Signature
[PLEASE SIGN WITHIN BOX]
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Date
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Signature (Joint Owners)
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Date
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0000042609_1
R2.09.05.010
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02 0000000000
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THE
STEAK N SHAKE COMPANY
You
should present this admission ticket in order to gain admittance to the 2010
Annual Meeting of Shareholders. This ticket admits only the shareholder(s)
listed on the reverse side and is not transferable. If shares are held in the
name of a broker, trust, bank, or other nominee, you should bring with you a
statement, legal proxy or letter from the broker, trustee, bank or nominee
confirming the beneficial ownership of the shares. Cameras, recording devices
and other electronic devices will not be permitted at the meeting.
Important Notice Regarding the
Availability of Proxy Materials for the Annual Meeting:
The Notice
& Proxy Statement is/are available at
www.proxyvote.com
.
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ANNUAL
MEETING OF SHAREHOLDERS
THIS
PROXY IS SOLICITED ON BEHALF OF
THE
BOARD OF DIRECTORS OF THE COMPANY.
The
undersigned appoints Sardar Biglari and Philip L. Cooley and each of them,
the proxies of the undersigned with full power of substitution, to vote
all shares of common stock of The Steak n Shake Company,
which the undersigned is entitled to vote at the Annual Meeting of
Shareholders to be held on April 8, 2010, or at any adjournment thereof,
as indicated on the reverse side on Proposals 1, 2 and 3 and as said
proxies may determine in the exercise of their best judgement on any other
matters which may properly come before the meeting.
THIS
PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED HEREIN
BY THE UNDERSIGNED SHAREHOLDER(S). IF NO DIRECTION IS MADE, THIS PROXY
WILL BE VOTED FOR PROPOSALS 1, 2, AND 3.
Your
vote is important. If you do not expect to attend the Annual Meeting or if
you plan to attend but wish to vote by proxy, please sign, date and mail
this proxy. A return envelope is provided for this
purpose.
Continued
and to be signed on reverse side
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0000042609_2
R2.09.05.010
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