Unassociated Document
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
13E-3
RULE
13e-3 TRANSACTION STATEMENT
(Pursuant to Section 13(e) of The
Securities Exchange Act of 1934 and Rule 13e-3 thereunder)
WESTERN SIZZLIN
CORPORATION
(Name of the
Issuer)
WESTERN
SIZZLIN CORPORATION,
THE
STEAK N SHAKE COMPANY,
GRILL ACQUISITION
CORPORATION,
SARDAR
BIGLARI
AND
PHILIP L.
COOLEY
(Names of Persons Filing
Statement)
Common Stock, par value
$0.01 per share
(Title of Class of
Securities)
959542101
(CUSIP Number of Class of
Securities)
Robyn
B. Mabe
Vice
President and Chief Financial Officer
Western
Sizzlin Corporation
401
Albemarle Ave SE
Roanoke,
Virginia 24013
(540)
345-3195
|
Duane
E. Geiger
Interim
Chief Financial Officer
The
Steak n Shake Company and Grill Acquisition Corporation
36
South Pennsylvania Street, Suite 500
Indianapolis,
Indiana 46204
(317)
633-4100
|
(Name, Address and Telephone Number
of Person Authorized to Receive Notices and Communications on Behalf of
Person(s) Filing Statement)
Copies to:
Steven
Wolosky
Olshan
Grundman Frome Rosenzweig & Wolosky LLP
Park
Avenue Tower, 65 East 55th Street
New
York, New York 10022
(212)
451-2300
|
Mark
B. Barnes
Ice
Miller LLP
One
American Square, Suite 2900
Indianapolis,
Indiana 46282-0002
(317)
236-2456
|
This
statement is filed in connection with (check the appropriate box):
þ
|
(a) The
filing of solicitation materials or an information statement subject to
Regulation 14A, Regulation 14C or Rule 13e- 3(c) under the
Securities Exchange Act of 1934.
|
þ (b) The
filing of a registration statement under the Securities Act of
1933.
¨ (c) A
tender offer.
¨ (d) None
of the above.
Check
the following box if the soliciting materials or information statement referred
to in checking box (a) are preliminary copies: þ
Check
the following box if the filing is a final amendment reporting the results of
the transaction: ¨
CALCULATION
OF FILING FEE
Transaction
Valuation*
|
|
Amount
of Filing Fee**
|
$24,746,297.40
|
|
$
1,380.84
|
Estimated
solely for the purpose of calculating the registration fee required by Rule
0-11(b) promulgated under the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”) and computed pursuant to Rule 0-11(a)(4) promulgated under the Exchange
Act. The Transaction Valuation is equal to the product of (a) $8.70, the average
of the high and low prices per share of Western Common Stock as reported on the
NASDAQ Capital Market on November 13, 2009, and (b) 2,844,402, the maximum
possible number of shares of Western Common Stock to be canceled pursuant to the
merger (which is the number of issued and outstanding shares of Western Common
Stock as of November 13, 2009).
** Determined
in accordance with Exchange Act Rule 0-11(b) by multiplying the transaction
value by .00005580.
þ Check
the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and
identify the filing with which the offsetting fee was previously
paid. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
Amount previously
paid: $ 1,380.84
Form
or Registration No.: 333-163192
Filing
Party: The Steak n Shake Company
Date
Filed: November 18, 2009
INTRODUCTION
This Rule
13e-3 transaction statement on Schedule 13E-3 (this “Transaction Statement”) is
being filed with the Securities and Exchange Commission (the “SEC”) pursuant to
Section 13(e) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), by the following persons, which are collectively referred to as the
“filing persons”:
|
·
|
Western
Sizzlin Corporation, a Delaware corporation (“Western
Sizzlin”);
|
|
·
|
The
Steak n Shake Company, an Indiana corporation (“Steak n
Shake”);
|
|
·
|
Grill
Acquisition Corporation, a Delaware corporation and a wholly-owned
subsidiary of Steak n Shake (“Merger
Sub”);
|
The
filing persons expressly disclaim any obligation to file this Transaction
Statement. The filing of this Transaction Statement shall not be
construed as an admission by any filing person, or by any affiliate of a filing
person, that Western Sizzlin is “controlled” by any filing person, or that any
filing person is an “affiliate” of Western Sizzlin within the meaning of Rule
13e-3 promulgated under Section 13(e) of the Exchange Act.
This
Transaction Statement relates to the Agreement and Plan of Merger (the “Merger
Agreement”), dated as of October 22, 2009, by and among Western Sizzlin, Steak n
Shake and Merger Sub. Pursuant to the Merger Agreement, subject to
Western Sizzlin stockholder approval and satisfaction or waiver of the other
conditions specified in the Merger Agreement, on the closing date of the
transaction Merger Sub will be merged with and into Western Sizzlin upon the
terms and subject to the conditions set forth in the Merger Agreement, and
Western Sizzlin will continue as the surviving company and will succeed to and
assume all the rights and obligations of Merger Sub (the
“Merger”). Further, pursuant to the Merger Agreement, each share of
Western Sizzlin’s common stock (other than shares held by Steak n Shake, Merger
Sub or Western Sizzlin, or by Western Sizzlin stockholders who perfect and do
not withdraw their appraisal rights under Delaware law) will be cancelled and
converted into the right to receive a pro rata portion of a new issue, not
exceeding $22,959,000 in aggregate principal amount, of 14% redeemable
subordinated debentures to be issued by Steak n Shake (the
“Debentures”).
Concurrently
with the filing of this Transaction Statement, Western Sizzlin and Steak n Shake
have filed with the SEC a registration statement on Form S-4, which includes a
preliminary proxy statement/prospectus (the “Proxy Statement/Prospectus”)
relating to the registration of the Debentures and the special meeting of the
Western Sizzlin stockholders. At the Western Sizzlin special meeting,
Western Sizzlin stockholders will be asked to consider and vote upon a proposal
to approve and adopt the Merger Agreement and approve the Merger.
The cross
references below are being supplied pursuant to General Instruction G to
Schedule 13E-3 and show the location in the Proxy Statement/Prospectus of the
information required to be included in response to the items of Schedule
13E-3.
The
information contained in the Proxy Statement/Prospectus, including all annexes
thereto, is incorporated in its entirety herein by this reference, and the
responses to each Item in this Transaction Statement are qualified in their
entirety by the information contained in the Proxy Statement/Prospectus and the
annexes thereto. As of the date hereof, the Proxy Statement/Prospectus is in
preliminary form and is subject to completion or amendment. All information
contained in this Transaction Statement concerning any of the filing persons has
been provided by such filing person and none of the filing persons takes
responsibility for the accuracy of any information not supplied by such filing
person.
More
information regarding Western Sizzlin and Steak n Shake is available from their
public filings with the SEC. This Transaction Statement and the
documents incorporated by reference in this Transaction Statement include
certain forward-looking statements. Forward-looking statements are
those statements that describe management's beliefs and expectations about the
future. We have identified forward-looking statements by using words
such as "anticipate," "believe," "could," "estimate," "may," "expect," and
"intend." Although we believe these expectations are reasonable, the
operations of Western Sizzlin and Steak n Shake involve a number of risks and
uncertainties, including those described in this Transaction Statement and other
documents filed by Western Sizzlin or by Steak n Shake with the
SEC. These types of forward looking statements may prove to be
incorrect. Forward-looking statements made in documents incorporated
into this disclosure by reference or otherwise made herein in relation to the
going private transaction discussed herein, however, are not protected under the
safe harbors provided by the Private Securities Litigation Reform Act of
1995.
ITEM
1.
|
SUMMARY TERM
SHEET
|
Item 1001
of Regulation M-A:
The
information set forth in the Proxy Statement/Prospectus under the following
caption is incorporated herein by reference:
“Summary”
“Questions
and Answers About the Special Meeting and the Merger”
ITEM
2.
|
SUBJECT COMPANY
INFORMATION
|
Item 1002
of Regulation M-A:
(a) Name
and Address. The information set forth in the Proxy
Statement/Prospectus under the captions “Summary—Information about the
Companies—Western Sizzlin” and “Information About the Companies—Western Sizzlin
Corporation” is incorporated herein by reference.
(b) Securities. The
information set forth in the Proxy Statement/Prospectus under the following
captions is incorporated herein by reference: “The Special Meeting—Western
Sizzlin Record Date.” The exact title of each class of the
subject equity securities is “common stock, par value $0.01 per
share.”
(c)-(d) Trading
Market and Price; Dividends. The information set forth in the Proxy
Statement/Prospectus under the following captions is incorporated herein by
reference:
“Summary—Information
about the Companies—Western Sizzlin”
“Information
about the Companies—Western Sizzlin”
"Recent
Developments—Western Sizzlin Special Dividend"
“Market
Price and Dividend Information”
“Special
Factors—Dividends and Distributions”
(e) Prior
Public Offerings. None.
(f) Prior
Stock Purchases. The information set forth in the Proxy Statement/Prospectus
under the caption “Other Important Information Regarding Western Sizzlin and
Steak n Shake—Transactions in Western Sizzlin Common Stock” is incorporated
herein by reference.
ITEM
3.
|
IDENTITY AND BACKGROUND OF
FILING PERSON
|
Item 1003
of Regulation M-A:
(a)-(c) Name and address; Business and
background of entities; Business and background of natural persons. The
information set forth in the Proxy Statement/Prospectus under the following
captions is incorporated herein by reference:
“Summary—Information
about the Companies—Steak n Shake”
“Summary—Information
about the Companies—Western Sizzlin”
“Summary—Information
about the Companies—Merger Sub”
“Information
about the Companies—Steak n Shake”
“Information
about the Companies—Western Sizzlin”
“Information
about the Companies—Merger Sub”
“Other
Important Information Regarding Western Sizzlin and Steak n Shake—Summary of
Western Sizzlin’s Business”
“Other
Important Information Regarding Western Sizzlin and Steak n Shake—Management’s
Discussion and Analysis of Financial Condition and Results of Operations of
Western Sizzlin”
“Other
Important Information Regarding Western Sizzlin and Steak n Shake—Steak n Shake
Management”
“Other
Important Information Regarding Western Sizzlin and Steak n Shake—Western
Sizzlin Management”
“Other
Important Information Regarding Western Sizzlin and Steak n Shake—Security
Ownership of Certain Beneficial Owners and Management”
“Summary—Interests
of Steak n Shake's and Western Sizzlin's Directors and Executive Officers in the
Merger”
“Special
Factors—Interests of Steak n Shake's and Western Sizzlin's Directors and
Executive Officers in the Merger”
Each
executive officer and director of Western Sizzlin, Steak n Shake and Merger Sub
is a United States citizen.
ITEM
4.
|
TERMS OF THE
TRANSACTION
|
Item 1004
of Regulation M-A:
(a) Material Terms. The
information set forth in the Proxy Statement/Prospectus under the following
captions is incorporated herein by reference:
“Summary”
“Questions
and Answers About the Special Meeting and the Merger”
“Special
Factors”
“The
Merger Agreement”
“The
Special Meeting”
“Description
of Debentures”
“The
Voting Agreements”
“Material
U.S. Federal Income Tax Consequences”
“Annex
A—Agreement and Plan of Merger by and among Western Sizzlin, Steak n Shake and
Merger Sub”
“Annex
E—Form of Voting Agreement”
“Annex
F—Form of Indenture, including form of Debenture”
(c) Different Terms.
None.
(d) Appraisal Rights. The
information set forth in the Proxy Statement/Prospectus under the following
captions is incorporated herein by reference:
“Summary—The
Merger”
“Questions
and Answers About the Special Meeting and the Merger”
“Special
Factors—Appraisal Rights that may be Available in Connection with the
Merger”
“Appraisal
Rights”
"Annex
D—Section 262 of the Delaware General Corporation Law"
(e) Provisions For Unaffiliated Security
Holders. The information set forth in the Proxy Statement/Prospectus
under the following captions is incorporated herein by reference:
“Special
Factors—Provisions for Unaffiliated Stockholders”
“Where
You Can Find More Information”
“Appraisal
Rights”
"Annex
D—Section 262 of the Delaware General Corporation Law"
(f) Eligibility for Listing or
Trading. The information set forth in the Proxy Statement/Prospectus
under the following captions is incorporated herein by reference:
“Summary—Debentures”
“Risk
Factors—Risks Relating to the Debentures”
“Special
Factors—Listing of the Debentures”
“Description
of Debentures”
“Other
Important Information Regarding Western Sizzlin and Steak n Shake—Comparison of
Stockholder’s and Debenture Holder’s Rights.”
ITEM
5.
|
PAST CONTACTS, TRANSACTIONS,
NEGOTIATIONS AND AGREEMENTS
|
Item 1005
of Regulation M-A:
(a) Transactions. The information
set forth in the Proxy Statement/Prospectus under the following captions is
incorporated herein by reference:
“Summary”
“Risk
Factors—Risk Factors Relating to Western Sizzlin’s Ownership
Structure”
“Special
Factors—Background of the Merger”
“Other
Important Information Regarding Western Sizzlin and Steak n Shake—Certain
Transactions with Directors, Executive Officers and Affiliates”
“Where
You Can Find More Information”
(b)-(c) Significant Corporate Events;
Negotiations or Contacts. The information set forth in the Proxy
Statement/Prospectus under the following captions is incorporated herein by
reference:
“Summary—
Information about the Companies—Western Sizzlin”
“Special
Factors—Background of the Merger”
“The
Merger Agreement”
“Other
Important Information Regarding Western Sizzlin and Steak n Shake—Certain
Transactions with Directors, Executive Officers and Affiliates”
“The
Voting Agreements”
“Annex
A—Agreement and Plan of Merger”
“Annex E
—Form of Voting Agreement”
(e) Agreements Involving the Subject
Company’s Securities. The information set forth in the Proxy
Statement/Prospectus under the following captions is incorporated herein by
reference:
“The
Merger Agreement”
“Certain
Transactions with Directors, Executive Officers and Affiliates”
“The
Voting Agreements”
“Annex
A—Agreement and Plan of Merger”
“Annex E—
Form of Voting Agreement”
ITEM
6.
|
PURPOSES OF THE TRANSACTION AND
PLANS OR PROPOSALS
|
Item 1006
of Regulation M-A:
(b) Use of Securities Acquired.
The information set forth in the Proxy Statement/Prospectus under the following
captions is incorporated herein by reference:
“Special
Factors—Completion of the Merger”
“The
Merger Agreement—Special Dividend and Merger Consideration”
“The
Merger Agreement—Surrender and Conversion of Shares”
(c) Plans. The information set
forth in the Proxy Statement/Prospectus under the following captions is
incorporated herein by reference:
“Summary”
“Special
Factors—Background of the Merger”
“Special
Factors—Recommendation of the Western Sizzlin Special Committee; Reasons for,
and Effects and Fairness of, the Merger”
“Special
Factors—Recommendation of the Western Sizzlin Board of Directors; Reasons for,
and Effects and Fairness of, the Merger”
“Special
Factors—Recommendation of the Steak n Shake Special Committee; Reasons for, and
Effects and Fairness of, the Merger”
“Special
Factors—Approval of the Steak n Shake Board of Directors; Reasons for, and
Effects and Fairness of, the Merger”
“Special
Factors—Completion of the Merger”
“Special
Factors— Purposes of
the Merger for the Schedule 13e-3 Filing Persons”
“Special
Factors— Plans for
Western Sizzlin after the Merger”
“The
Merger Agreement—Surrender and Conversion of Shares”
“Annex
A—Agreement and Plan of Merger”
ITEM
7.
|
PURPOSES, ALTERNATIVES, REASONS
AND EFFECTS
|
Item 1013
of Regulation M-A:
(a)-(c) Purposes; Alternatives;
Reasons. The information set forth in the Proxy Statement/Prospectus
under the following captions is incorporated herein by reference:
“Summary—Recommendations
of the Special Committees and the Boards of Directors”
“Summary—Reasons
for the Merger”
“Special
Factors—Background of the Merger”
“Special
Factors—Recommendation of the Western Sizzlin Special Committee; Reasons for,
and Effects and Fairness of, the Merger”
“Special
Factors—Recommendation of the Western Sizzlin Board of Directors; Reasons for,
and Effects and Fairness of, the Merger”
“Special
Factors—Recommendation of the Steak n Shake Special Committee; Reasons for, and
Effects and Fairness of, the Merger”
“Special
Factors—Approval of the Steak n Shake Board of Directors; Reasons for, and
Effects and Fairness of, the Merger”
“Special
Factors—Position of Schedule 13e-3 Filing Persons as to the Fairness of the
Merger”
“Special
Factors— Purposes of
the Merger for the Schedule 13e-3 Filing Persons”
“Special
Factors— Plans for
Western Sizzlin after the Merger”
“Special
Factors—Alternatives to the Merger Considered by the Steak n Shake Special
Committee and the Western Sizzlin Special Committee”
(d) Effects. The information set
forth in the Proxy Statement/Prospectus under the following captions is
incorporated herein by reference:
“Summary—The
Merger”
“Questions
and Answers About the Special Meeting and the Merger”
“Special
Factors—Completion of the Merger”
“Special
Factors—Opinion of the Financial Advisor of the Western Sizzlin Special
Committee”
“Special
Factors—Opinion of the Financial Advisor of the Steak n Shale Special
Committee”
“Special
Factors—Material U.S. Federal Income Tax Consequences”
“Description
of the Merger Agreement”
“Description
of the Debentures”
"Comparison
of Stockholder's and Debenture Holder's Rights"
“Material
U.S. Federal Income Tax Consequences”
“Annex
A—Agreement and Plan of Merger”
ITEM
8.
|
FAIRNESS OF THE
TRANSACTION
|
Item 1014
of Regulation M-A:
(a)-(b) Fairness; Factors Considered in
Determining Fairness. The information set forth in the Proxy
Statement/Prospectus under the following captions is incorporated herein by
reference:
“Summary—The
Merger”
“Special
Factors—Background of the Merger”
“Special
Factors—Recommendation of the Western Sizzlin Special Committee; Reasons for,
and Effects and Fairness of, the Merger”
“Special
Factors—Recommendation of the Western Sizzlin Board of Directors; Reasons for,
and Effects and Fairness of, the Merger”
“Special
Factors—Recommendation of the Steak n Shake Special Committee; Reasons for, and
Effects and Fairness of, the Merger”
“Special
Factors—Approval of the Steak n Shake Board of Directors; Reasons for, and
Effects and Fairness of, the Merger”
“Special
Factors—Interests of Steak n Shake’s and Western Sizzlin’s Directors and
Executive Officers in the Merger”
“Special
Factors—Position of Schedule 13e-3 Filing Persons as to the Fairness of the
Merger”
“Special
Factors—Alternatives to the Merger Considered by the Steak n Shake Special
Committee and the Western Sizzlin Special Committee”
“Special
Factors—Opinion of the Financial Advisor of the Western Sizzlin Special
Committee”
“Special
Factors—Opinion of the Financial Advisor of the Steak n Shake Special
Committee”
“Annex
B—Opinion of B. Riley & Co., LLC”
“Annex
C—Opinion of Duff & Phelps, LLC.”
(c) Approval of Security Holders.
The information set forth in the Proxy Statement/Prospectus under the following
captions is incorporated herein by reference:
“Summary—Western
Sizzlin Special Meeting”
“Questions
and Answers About the Merger”
“Special
Factors—Recommendation of the Western Sizzlin Special Committee; Reasons for,
and Effects and Fairness of, the Merger”
“Special
Factors—Recommendation of the Western Sizzlin Board of Directors; Reasons for,
and Effects and Fairness of, the Merger”
“The
Special Meeting—Required Votes”
(d)-(e) Unaffiliated Representative;
Approval of Directors. The information set forth in the Proxy
Statement/Prospectus under the following captions is incorporated herein by
reference:
“Summary—The
Merger”
“Special
Factors—Background of the Merger”
“Special
Factors—Recommendation of the Western Sizzlin Special Committee; Reasons for,
and Effects and Fairness of, the Merger”
“Special
Factors—Recommendation of the Western Sizzlin Board of Directors; Reasons for,
and Effects and Fairness of, the Merger”
“Special
Factors—Recommendation of the Steak n Shake Special Committee; Reasons for, and
Effects and Fairness of, the Merger”
“Special
Factors—Approval of the Steak n Shake Board of Directors; Reasons for, and
Effects and Fairness of, the Merger”
“Special
Factors—Position of 13e-3 Filing Persons as to the Fairness of the
Merger”
“Annex
B—Opinion of B. Riley & Co., LLC”
“Annex
C—Opinion of Duff & Phelps, LLC.”
(f) Other Offers.
None.
ITEM
9.
|
REPORTS, OPINIONS, APPRAISALS
AND NEGOTIATIONS
|
Item 1015
of Regulation M-A:
(a)-(b) Report, Opinion or Appraisal;
Preparer and Summary of the Report, Opinion or Appraisal. The information
set forth in the Proxy Statement/Prospectus under the following captions is
incorporated herein by reference:
“Summary—Recommendations
of the Special Committees and the Boards of Directors”
“Special
Factors—Background of the Merger”
“Special
Factors—Recommendation of the Western Sizzlin Special Committee; Reasons for,
and Effects and Fairness of, the Merger”
“Special
Factors—Recommendation of the Western Sizzlin Board of Directors; Reasons for,
and Effects and Fairness of, the Merger”
“Special
Factors—Recommendation of the Steak n Shake Special Committee; Reasons for, and
Effects and Fairness of, the Merger”
“Special
Factors—Approval of the Steak n Shake Board of Directors; Reasons for, and
Effects and Fairness of, the Merger”
“Special
Factors—Position of 13e-3 Filing Persons as to the Fairness of the
Merger”
“Special
Factors—Opinion of the Financial Advisor of the Western Sizzlin Special
Committee”
“Special
Factors—Opinion of the Financial Advisor of the Steak n Shake Special
Committee”
“Annex
B—Opinion of B. Riley & Co., LLC”
“Annex
C—Opinion of Duff & Phelps, LLC.”
(c) Availability of Documents.
The reports, opinions or appraisals referenced in this Item 9 will be made
available for inspection and copying at the principal executive offices of Steak
n Shake or Western Sizzlin, as applicable, during normal business hours by any
interested holder of Steak n Shake common stock or Western Sizzlin common stock
or its representative who has been so designated in writing, as
applicable.
ITEM
10.
|
SOURCE AND AMOUNT OF FUNDS OR
OTHER CONSIDERATION
|
Item 1007
of Regulation M-A:
(a)-(d) Source of Funds; Conditions;
Expenses; Borrowed Funds. The information set forth in the Proxy
Statement/Prospectus under the following caption is incorporated herein by
reference: “Special Factors—Sources of Funds; Fees and
Expenses.”
ITEM
11.
|
INTEREST IN SECURITIES OF THE
SUBJECT COMPANY
|
Item 1008
of Regulation M-A:
(a) Securities Ownership. The
information set forth in the Proxy Statement/Prospectus under the following
captions is incorporated herein by reference:
“Summary—Information
about the Companies—Western Sizzlin”
“Summary—The
Merger”
“Special
Factors—Interests of Steak n Shake's and Western Sizzlin's Directors and
Executive Officers in the Merger"
“Other
Important Information Regarding Western Sizzlin and Steak n Shake—Security
Ownership of Certain Beneficial Owners and Management”
(b) Securities
Transactions. The information set forth in the Proxy
Statement/Prospectus under the following captions is incorporated herein by
reference:
“Other
Important Information Regarding Western Sizzlin and Steak n Shake—Transactions
in Western Sizzlin Common Stock”
ITEM
12.
|
THE SOLICITATION OR
RECOMMENDATION
|
Item 1012
of Regulation M-A:
(d) Intent to Tender or Vote in a
Going-Private Transaction. The information set forth in the Proxy
Statement/Prospectus under the following captions is incorporated herein by
reference:
“The
Special Meeting”
“Questions
and Answers About the Special Meeting and the Merger”
“Special
Factors—Background of the Merger”
“Special
Factors—Interests of Steak n Shake's and Western Sizzlin's Directors and
Executive Officers in the Merger”
“Special
Factors—Recommendation of the Western Sizzlin Special Committee; Reasons for,
and Effects and Fairness of, the Merger”
“Special
Factors—Recommendation of the Western Sizzlin Board of Directors; Reasons for,
and Effects and Fairness of, the Merger”
“The
Special Meeting—Directors and Executive Officers; Voting
Agreements”
“The
Voting Agreements”
“Annex
A—Agreement and Plan of Merger”
“Annex
E—Form of Voting Agreement”
(e) Recommendation of Others. The
information set forth in the Proxy Statement/Prospectus under the following
captions is incorporated herein by reference:
“Summary—The
Merger”
“Questions
and Answers About the Special Meeting and the Merger”
“Summary—Interests
of Steak n Shake's and Western Sizzlin's Directors and Executive Officers in the
Merger”
“Special
Factors—Background of the Merger”
“Special
Factors—Recommendation of the Western Sizzlin Special Committee; Reasons for,
and Effects and Fairness of, the Merger”
“Special
Factors—Recommendation of the Western Sizzlin Board of Directors; Reasons for,
and Effects and Fairness of, the Merger”
“Special
Factors—Recommendation of the Steak n Shake Special Committee; Reasons for, and
Effects and Fairness of, the Merger”
“Special
Factors—Approval of the Steak n Shake Board of Directors; Reasons for, and
Effects and Fairness of, the Merger”
“Special
Factors—Position of 13e-3 Filing Persons as to the Fairness of the
Merger”
“Special
Factors—Interests of Steak n Shake's and Western Sizzlin's Directors and
Executive Officers in the Merger”
ITEM
13.
|
FINANCIAL
STATEMENTS
|
Item 1010
of Regulation M-A:
(a) Financial Information. The
information set forth in the Proxy Statement/Prospectus under the following
captions is incorporated herein by reference:
"Selected
Consolidated Financial Data of Steak n Shake"
“Selected
Historical Consolidated Financial Data of Western Sizzlin”
“Other
Important Information Regarding Western Sizzlin and Steak n Shake—Steak n
Shake’s Ratio of Earnings to Fixed Charges”
“Other
Important Information Regarding Western Sizzlin and Steak n Shake—Western
Sizzlin’s Ratio of Earnings to Fixed Charges”
“Other
Important Information Regarding Western Sizzlin and Steak n Shake—Western
Sizzlin’s Book Value Per Share”
“Where
You Can Find More Information”
“Index to
Western Sizzlin’s Financial Statements”
(b) Pro Forma
Information. Not Applicable.
ITEM
14.
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PERSONS/ASSETS RETAINED,
EMPLOYED, COMPENSATED OR
USED
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Item 1009
of Regulation M-A:
(a)-(b) Solicitations or Recommendations;
Employees and Corporate Assets. The information set forth in the Proxy
Statement/Prospectus under the following captions is incorporated herein by
reference:
“Summary—Western
Sizzlin Special Meeting”
“The
Special Meeting—Solicitation of Proxies”
ITEM
15.
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ADDITIONAL
INFORMATION
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Item
1011(b) of Regulation M-A:
(b) Other Material Information.
The entirety of the Proxy Statement/Prospectus, including all annexes thereto,
is incorporated herein by reference.
Item 1016
of Regulation M-A:
(a)
(1) Proxy Statement/Prospectus of Steak n Shake and Western Sizzlin,
incorporated herein by reference to the registration statement on Form S-4 filed
by Steak n Shake on November 17, 2009.
(a)
(2) Form of Western Sizzlin Proxy Card filed as Exhibit 99.3 to
the Proxy Statement/Prospectus, incorporated herein by reference.
(a)
(3) Investor Presentation by Western Sizzlin (previously filed
as Rule 14(a)(12) proxy solicitation materials on Form DEFA14A, dated August 13,
2009, and incorporated herein by reference).
(c)
(1) Opinion of B. Riley & Co. LLC to the Western Sizzlin
special committee, dated October 22, 2009 (attached as Annex B to the Proxy
Statement/Prospectus, and incorporated herein by reference).
(c)
(2) Opinion of Duff & Phelps, LLC ("Duff & Phelps") to
the special committee of Steak n Shake, dated October 21,
2009 (attached as Annex C to the Proxy Statement/Prospectus, and
incorporated herein by reference).
(c)
(3) Presentation of Duff & Phelps to the Steak n
Shake special committee, dated October 21, 2009.
(d)
(1) Agreement and Plan of Merger, dated October 22, 2009, by
and among Grill Acquisition Corporation, Western Sizzlin Corporation and The
Steak n Shake Company (attached as Annex A to the Proxy Statement/Prospectus and
incorporated herein by reference).
(d)
(2) Voting Agreement, dated October 22, 2009 between The Steak
n Shake Company and Dash Acquisitions LLC (filed as Exhibit 99.1 to the Proxy
Statement/Prospectus, incorporated herein by reference).
(d)
(3) Voting Agreement, dated October 22, 2009 between The Steak
n Shake Company and The Lion Fund, L.P. (filed as Exhibit 99.2 to the Proxy
Statement/Prospectus, incorporated herein by reference)
(f)
(1) Dissenters’ rights of appraisal are described under the
following captions in the Proxy Statement/Prospectus, which are incorporated
herein by reference:
“Summary—The
Merger”
“Questions
and Answers About the Special Meeting and the Merger”
“Special
Factors—Appraisal Rights that may be Available in Connection with the
Merger”
“Appraisal
Rights”
"Annex D
– Section 262 of the Delaware General Corporation Law"
(g) None.
SIGNATURES
After due
inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and
correct.
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|
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By:
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/s/
Sardar Biglari
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Sardar
Biglari
|
Chairman
and Chief Executive Officer
|
|
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Date: November
17, 2009
|
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WESTERN
SIZZLIN CORPORATION
|
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By:
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/s/
Sardar Biglari
|
Sardar
Biglari
|
Chairman
and Chief Executive Officer
|
|
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Date:
November 17, 2009
|
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GRILL
ACQUISITION CORPORATION
|
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By:
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/s/
William J. Regan, Jr.
|
William
J. Regan, Jr.
President
|
Date:
November 17, 2009
|
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/s/
Sardar Biglari
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SARDAR
BIGLARI
|
|
Date:
November 17, 2009
|
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/s/
Philip L. Cooley
|
PHILIP
L. COOLEY
|
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Date:
November 17,
2009
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