As filed with the Securities and Exchange Commission on January 28, 2000
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under The Securities Act of 1933
APPLEBEE'S INTERNATIONAL, INC.
(Exact name of Registrant as specified in its character)
Delaware 43-1461763
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
4551 West 107th Street, Suite 100
Overland Park, Kansas 66207
(Address, including zip code, of Registrant's principal executive offices)
APPLEBEE'S INTERNATIONAL, INC. 1995 EQUITY INCENTIVE PLAN
APPLEBEE'S INTERNATIONAL, INC. 1999 EMPLOYEE INCENTIVE PLAN
Lloyd L. Hill copy to:
Chief Executive Officer Shari L. Wright, Esq.
Applebee's International, Inc. Blackwell Sanders Matheny Weary &
4551 West 107th Street, Suite 100 Lombardi LLP
Overland Park, Kansas 66207 2300 Main Street, Suite 1100
(913) 967-4000 Kansas City, Missouri 64108
(816) 983-8000
(Name, address, telephone number, of agent for service)
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<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================================
Proposed maximum Proposed maximum
Amount to be offering price aggregate offering Amount of
Title of securities to be registered registered per share price registration fee
================================================ ====================== ================== =================== =====================
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 1,933,000 shares $26.0625 (1) $50,378,813 (1) $13,300.01
================================================ ====================== ================== =================== =====================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h), based on the average of the high and low prices of
the Registrant's Common Stock as listed on the NASDAQ Stock Market on
January 26, 2000.
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EXPLANATORY NOTE
As permitted by the rules of the Securities and Exchange Commission (the
"Commission"), this Registration Statement omits the information specified in
Part I of Form S-8.
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Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3: Incorporation of Documents by Reference
The following documents filed with the Commission by Applebee's
International, Inc. (the "Company") are incorporated in this Registration
Statement on Form S-8 (the "Registration Statement") by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 27, 1998;
2. The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 28, 1999, June 27, 1999 and September 26, 1999;
3. The Company's Reports on Form 8-K filed on February 10, 1999,
February 23, 1999, February 25, 1999, April 27, 1999,
September 29, 1999 and December 29, 1999;
4. The Company's Definitive Proxy Statements on Form 14A filed
March 28, 1997 and April 6, 1999; and
5. The description of the Company's Common Stock set forth in the
Form 8-A Registration Statement effective September 27, 1989.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all of the securities offered then remaining unsold, shall be deemed
to be incorporated herein by reference and to be a part hereof from the date of
filing of such documents.
Any statement contained in a report or other document incorporated by
reference herein shall be deemed to be modified or superseded for all purposes
of this Registration Statement to the extent that a statement contained herein,
or in any other subsequently filed report or other document that also is
incorporated by reference herein, modifies or supersedes such statement. Any
such statements so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute part of this Registration Statement.
Certain statements contained herein and in the related prospectus or
incorporated by reference herein or in the related prospectus constitute
forward-looking statements as such term is defined in Section 27A of the
Securities Act of 1933, as amended (the "Securities Act") and Section 21E of the
Exchange Act. Certain factors discussed herein and in the related prospectus or
in the Company's Exchange Act filings with the Commission could cause actual
results to differ materially from those in the forward-looking statements.
Item 4: Description of Securities
Not applicable.
Item 5: Interests of Named Experts and Counsel
Not applicable.
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Item 6: Indemnification of Directors and Officers
The Company has entered into indemnification agreements with certain
officers and directors of the Company. Under these agreements, the
Company agrees to hold harmless and indemnify each indemnitee generally
to the full extent permitted by Section 145 of the Delaware General
Corporation Law (the "DGCL") and against any and all liabilities,
expenses, judgments, fines, penalties and costs in connection with any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative to which the indemnitee
is made a party by reason of the fact that the indemnitee has, is or at
the time becomes a director or officer of the Company or any other
entity at the request of the Company. The indemnity does not cover
liability arising out of fraudulent acts, deliberate dishonesty or
willful misconduct, violations of certain securities laws, or if a court
determines that such indemnification is not lawful.
Section IX of the Bylaws of the Company provides for the indemnification
of officers and directors of the Company generally to the extent
permitted by Section 145 of the DGCL, including liability arising under
the securities laws. Section 145 permits a corporation to indemnify
certain persons, including officers and directors, who are (or are
threatened to be made) parties to any threatened, pending or completed
legal action (whether civil, criminal, threatened or investigative) for
reason of their being officers or directors. The indemnity may include
expenses, attorneys' fees, judgments, fines and reasonably incurred
costs of settlement, provided the officer and director acted in good
faith and in a manner he reasonably believed to be in or not opposed to
the corporation's best interest and, in the case of criminal
proceedings, he had no reasonable cause to believe that his conduct was
illegal. The corporation may indemnify officers and directors in
derivative actions (in which suit is brought by a shareholder on behalf
of the corporation) under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is judged liable for negligence or misconduct in the
performance of his duty to the corporation. If the officer or director
is successful on the merits or otherwise in defense of any action
referred to above, the corporation must indemnify him against the
expenses and attorneys' fees he actually and reasonably incurred.
The Company has obtained liability insurance coverage for its officers
and directors with respect to actions arising out of the performance of
such officer's or director's duty in his or her capacity as such.
Item 7: Exemption from Registration Claimed
Not applicable.
Item 8: Exhibits
4.1 Shareholder Rights Plan contained in Rights Agreement dated as
of September 7, 1994, between Applebee's International, Inc.
and Chemical Bank, as Rights Agent (incorporated by reference
to Exhibit 4.1 of the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 25, 1994).
4.2 Certificate of the Voting Powers, Designations, Preferences
and Relative Participating, Optional and Other Special Rights
and Qualifications of Series A Participating Cumulative
Preferred Stock of Applebee's International, Inc.
(incorporated by reference to Exhibit 4.2 of the Registrant's
Annual Report on Form 10-K for the fiscal year ended December
25, 1994).
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4.3 Amendment to the 1995 Equity Incentive Plan increasing the
number of shares of Common Stock available for Awards by
300,000 shares to a total of 2,300,000 shares (incorporated by
reference to Exhibit 10.13 of the Registrant's Annual Report
on Form 10-K for the fiscal year ended December 28, 1997).
4.4 Amendment to the 1995 Equity Incentive Plan increasing the
number of shares of Common Stock available for Awards by
1,300,000 shares to a total of 3,600,000 shares (incorporated
by reference to Exhibit 99 of the Registrant's Proxy Statement
on Form 14A filed on April 6, 1999).
4.5 1999 Employee Incentive Plan establishing the number of shares
of Common Stock available for grant at 333,000 shares.
5 Opinion of Robert T. Steinkamp, counsel to the Company.
23.1 Consent of Robert T. Steinkamp (included in Exhibit 5).
23.2 Consent of Deloitte & Touche LLP.
24 Powers of Attorney (included in signature page to Registration
Statement).
Item 9: Undertakings
Rule 415 Offering.
The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
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Provided, however, that paragraphs (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Company pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
Incorporation of Subsequent Exchange Act Documents by Reference.
The undersigned Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Form S-8 Registration Statement.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Overland Park, State of Kansas, on January 28, 2000.
APPLEBEE'S INTERNATIONAL, INC.
(Registrant)
By: /s/ Lloyd L. Hill
Lloyd L. Hill
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned directors of
Applebee's International, Inc., hereby severally constitute Lloyd L. Hill and
Robert T. Steinkamp, and each of them singly, our true and lawful attorneys with
full power to them, and each of them singly, to sign for us and in our names in
the capacities indicated below, any and all amendments to this Registration
Statement on Form S-8, and generally to do all such things in our names and in
our capacities as directors to enable Applebee's International, Inc. to comply
with the provisions of the Securities Act of 1933, and all requirements of the
Securities and exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated:
Signature Title Date
/s/Lloyd L. Hill Director and Chief Executive Officer January 28, 2000
Lloyd L. Hill (principal executive officer)
/s/George D. Shadid Director, Executive Vice President and January 28, 2000
George D. Shadid Chief Financial Officer
(principal financial officer)
/s/Mark A. Peterson Vice President and Controller January 28, 2000
Mark A. Peterson (principal accounting officer)
/s/Abe J. Gustin, Jr. Director, Chairman of the Board January 28, 2000
Abe J. Gustin, Jr.
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/s/Erline Belton Director January 28, 2000
Erline Belton
/s/Douglas R. Conant Director January 28, 2000
Douglas R. Conant
/s/D. Patrick Curran Director January 28, 2000
D. Patrick Curran
/s/Eric L. Hansen Director January 28, 2000
Eric L. Hansen
/s/ Mark S. Hansen Director January 28, 2000
Mark S. Hansen
/s/Jack P. Helms Director January 28, 2000
Jack P. Helms
/s/Burton M. Sack Director January 28, 2000
Burton M. Sack
II-6
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EXHIBIT INDEX
Exhibit
No. Description
4.1 Shareholder Rights Plan contained in Rights Agreement
dated as of September 7, 1994, between Applebee's
International, Inc. and Chemical Bank, as Rights
Agent (incorporated by reference to Exhibit 4.1 of
the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 25, 1994).
4.2 Certificate of the Voting Powers, Designations,
Preferences and Relative Participating, Optional and
Other Special Rights and Qualifications of Series A
Participating Cumulative Preferred Stock of
Applebee's International, Inc. (incorporated by
reference to Exhibit 4.2 of the Registrant's Annual
Report on Form 10-K for the fiscal year ended
December 25, 1994).
4.3 Amendment to the 1995 Equity Incentive Plan
increasing the number of shares of Common Stock for
Awards by 300,000 shares to a total of 2,300,000
shares (incorporated by reference to Exhibit 10.13 of
the Registrant's Annual Report on Form10-K for the
fiscal year ended December 28, 1997).
4.4 Amendment to the 1995 Equity Incentive Plan
increasing the number of shares of Common Stock
available for Awards by 1,300,000 shares to a total
of 3,600,000 shares (incorporated by reference to
Exhibit 99 of the Registrant's Proxy Statement on
Form 14A on April 6, 1999).
4.5 1999 Employee Incentive Plan establishing the number
of shares of Common Stock available for grant at
333,000 shares.
5 Opinion of Robert T. Steinkamp, counsel to the
Company.
23.1 Consent of Robert T. Steinkamp (included in Exhibit
5).
23.2 Consent of Deloitte & Touche LLP.
24 Powers of Attorney (included in signature page of
Registration Statement).
EXHIBIT 4.5
APPLEBEE'S INTERNATIONAL, INC.
1999 EMPLOYEE INCENTIVE PLAN
SECTION 1
PURPOSE AND DURATION
1.1 Effective Date. This Plan shall become effective on May 13, 1999.
1.2 Purpose of this Plan. This Plan permits the grant of Nonqualified
Stock Options, SARs, Restricted Stock, Performance Units and Performance Shares.
This Plan is intended to attract, motivate, and retain employees of the Company
and its Affiliates. This Plan also is designed to further the growth and
financial success of the Company and its Affiliates by aligning the interests of
the Participants, through the ownership of Shares and through other incentives,
with the interests of the Company's stockholders.
SECTION 2
DEFINITIONS
The following words and phrases shall have the following meanings
unless a different meaning is plainly required by the context:
"1934 Act" means the Securities Exchange Act of 1934, as amended.
Reference to a specific section of the 1934 Act or regulation thereunder shall
include such section or regulation, any valid regulation promulgated under such
section, and any comparable provision of any future legislation or regulation
amending, supplementing or superseding such section or regulation.
"Affiliate" means any corporation or any other entity (including, but
not limited to, partnerships and joint ventures) controlling, controlled by or
under common control with the Company.
"Affiliated SAR" means an SAR that is granted in connection with a
related Option, and that automatically will be deemed to be exercised at the
same time that the related Option is exercised.
"Award" means, individually or collectively, a grant under this Plan of
Nonqualified Stock Options, SARs, Restricted Stock, Performance Units or
Performance Shares.
"Award Agreement" means the written agreement setting forth the terms
and provisions applicable to each Award granted under this Plan.
"Board" or "Board of Directors" means the Board of Directors of the
Company.
"Change in Control" shall have the meaning assigned to such term in
Section 12.2.
"Code" means the Internal Revenue Code of 1986, as amended. Reference
to a specific section of the Code or regulation thereunder shall include such
section or regulation, any valid regulation promulgated under such section, and
any comparable provision of any future legislation or regulation amending,
supplementing or superseding such section or regulation.
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"Committee" means the committee appointed by the Board (pursuant to
Section 3.1) to administer this Plan.
"Company" means Applebee's International, Inc., a Delaware corporation,
and any successor thereto.
"Director" means any individual who is a member of the Board of
Directors of the Company.
"Disability" means a permanent and total disability, provided that the
Committee in its sole discretion may determine whether a permanent and total
disability exists in accordance with uniform and non-discriminatory standards
adopted by the Committee from time to time.
"Employee" means any employee of the Company or of an Affiliate,
whether such employee is so employed at the time this Plan is adopted or becomes
so employed subsequent to the adoption of this Plan, provided, however, that no
employee of the Company or of an Affiliate with the title of Vice-President or
higher shall be considered an employee for purposes of this Plan.
"Exercise Price" means the price at which a Share may be purchased by a
Participant pursuant to the exercise of an Option.
"Fair Market Value" means the last quoted per share selling price at
which Shares are traded on any given date, or if no Shares are traded on such
date, the most recent prior date on which Shares were traded, as reported in The
Wall Street Journal. Notwithstanding the preceding, for federal, state and local
income tax reporting purposes, fair market value shall be determined by the
Committee (or its delegate) in accordance with uniform and nondiscriminatory
standards adopted by it from time to time.
"Fiscal Year" means the fiscal year of the Company.
"Freestanding SAR" means a SAR that is granted independently of any
Option.
"Grant Date" means, with respect to an Award, the date that the Award
was granted.
"Nonqualified Stock Option" means an Option to purchase Shares which is
not an incentive stock option under Section 422 of the Code.
"Option" means a Nonqualified Stock Option.
"Participant" means an Employee who has an outstanding Award.
"Performance Period" shall have the meaning assigned to such term in
Section 8.3.
"Performance Share" means an Award granted to a Participant pursuant to
Section 8.
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"Performance Unit" means an Award granted to a Participant pursuant to
Section 8.
"Period of Restriction" means the period during which the transfer of
Shares of Restricted Stock are subject to restrictions and, therefore, the
Shares are subject to a substantial risk of forfeiture. As provided in Section
7, such restrictions may be based on the passage of time, the achievement of
target levels of performance or the occurrence of other events as determined by
the Committee in its sole discretion.
"Plan" means the Applebee's International, Inc. 1999 Employee Incentive
Plan, as set forth in this instrument and as hereafter amended from time to
time.
"Restricted Stock" means an Award granted to a Participant pursuant to
Section 7.
"Retirement" means a Termination of Service by reason of the Employee's
retirement if (a) the Employee has been a full time Employee of the Company or
of any Affiliate for at least five (5) consecutive years immediately prior to
the date of such retirement, and (b) the age of the Employee on the date of such
retirement when added to the total number of years for which the Employee was a
full time Employee of the Company or of any Affiliate equals 60. For these
purposes, employment by a company or business acquired by the Company or an
Affiliate prior to such acquisition shall be counted as full time employment by
the Company or an Affiliate.
"Shares" means the shares of common stock of the Company.
"Stock Appreciation Right" or "SAR" means an Award, granted alone or in
connection with a related Option, that is designated as a SAR pursuant to
Section 6.
"Tandem SAR" means an SAR that is granted in connection with a related
Option, the exercise of which shall require forfeiture of the right to purchase
an equal number of Shares under the related Option (and when a Share is
purchased under the Option, the SAR shall be canceled to the same extent).
"Termination of Service" means a cessation of the employee-employer
relationship between an employee and the Company or an Affiliate for any reason,
including, but not limited to, a cessation by resignation, discharge, death,
Disability, Retirement or the disaffiliation of an Affiliate, but excluding any
such cessation where there is a simultaneous reemployment by the Company or an
Affiliate.
SECTION 3
ADMINISTRATION
3.1 The Committee. This Plan shall be administered by the Committee
that administers the Applebee's International, Inc., 1995 Equity Incentive Plan.
3.2 Authority of the Committee. It shall be the duty of the Committee
to administer this Plan in accordance with its provisions. The Committee shall
have all powers and discretion necessary or appropriate to administer this Plan
and to control its operation, including, but not limited to, the power to (a)
determine which Employees shall be granted Awards, (b) prescribe the terms and
conditions of the Awards, (c) interpret this Plan and the Awards, (d) adopt
rules for the administration, interpretation and application of this Plan as are
consistent therewith, and (e) interpret, amend or revoke any such rules.
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3.3 Delegation by the Committee. The Committee, in its sole discretion
and on such terms and conditions as it may provide, may delegate all or any part
of its authority and powers under this Plan to one or more directors or officers
of the Company.
3.4 Decisions Binding. All determinations and decisions made by the
Committee, the Board and any delegate of the Committee pursuant to Section 3.3
shall be final, conclusive, and binding on all persons, and shall be given the
maximum deference permitted by law.
SECTION 4
SHARES SUBJECT TO THIS PLAN
4.1 Number of Shares. Subject to adjustment as provided in Section 4.3,
the total number of Shares available for grant under this Plan shall not exceed
333,000. Shares granted under this Plan may be either authorized but unissued
Shares or treasury Shares, or any combination thereof.
4.2 Lapsed Awards. If an Award is settled in cash, or is canceled,
terminates, expires or lapses for any reason (with the exception of the
termination of a Tandem SAR upon exercise of the related Option, or the
termination of a related Option upon exercise of the corresponding Tandem SAR),
any Shares subject to such Award thereafter shall be available to be the subject
of an Award.
4.3 Adjustments in Awards and Authorized Shares. In the event of any
merger, reorganization, consolidation, recapitalization, separation,
liquidation, stock dividend, stock split, Share combination, or other change in
the corporate structure of the Company affecting the Shares, the Committee shall
adjust the number and class of Shares which may be delivered under this Plan,
the number, class and price of Shares subject to outstanding Awards, and the
numerical limits of Sections 4.1, 5.1, 6.1, 7.1 and 8.1, in such manner as the
Committee (in its sole discretion) shall determine to be advisable or
appropriate to prevent the dilution or diminution of such Awards.
4.4 Adjustments upon Merger or Asset Sale. In the event of a merger of
the Company with or into another corporation, or the sale of substantially all
of the assets of the Company, the Board of Directors, in its discretion, may
require the successor corporation to either (i) assume each outstanding Award or
(ii) substitute an equivalent award by the successor corporation or a Parent or
Subsidiary of the successor corporation. If an Award is not assumed or
substituted in the event of a merger or sale of assets, the Award shall become
immediately exercisable and the Committee shall notify the Participant that the
Award shall be fully exercisable for a period of fifteen (15) days from the date
of such notice, and the Award shall terminate upon the expiration of such period
unless exercised. For the purposes of this paragraph, the Award shall be
considered assumed if, following the merger or sale of assets, the Award confers
the right to purchase or receive, for each Share subject to the Award
immediately prior to the merger or sale of assets, equal consideration (whether
stock, cash, or other securities or property) as received in the merger or sale
of assets by holders of each Share of common stock held on the effective date of
the transaction (and if holders of Shares were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of
the outstanding Shares); provided, however, that if such consideration received
in the merger or sale of assets was not solely common stock of the successor
corporation or its Parent, the Committee may, with the consent of the successor
corporation, provide for the consideration to be received upon the exercise of
the Award, for each Share subject to the award, to be solely common stock of the
successor corporation or its Parent equal in fair market value to the per share
consideration received by holders of common stock in the merger or sale of
assets.
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SECTION 5
STOCK OPTIONS
5.1 Grant of Options. Subject to the terms and provisions of this Plan,
Options may be granted to Employees at any time and from time to time as
determined by the Committee in its sole discretion. The Committee, in its sole
discretion, shall determine the number of Shares subject to each Option;
provided, however, that during any Fiscal Year, no Participant shall be granted
Options covering more than 50,000 Shares.
5.2 Award Agreement. Each Option shall be evidenced by an Award
Agreement that shall specify the Exercise Price, the expiration date of the
Option, the number of Shares to which the Option pertains, any conditions to
exercise of the Option and such other terms and conditions as the Committee, in
its sole discretion, shall determine.
5.3 Exercise Price. Subject to the provisions of this Section 5.3, the
Exercise Price for each Option shall be determined by the Committee in its sole
discretion.
5.3.1 Nonqualified Stock Options. The Exercise Price shall be
not less than one hundred percent (100%) of the Fair Market Value of a
Share on the Grant Date.
5.3.2 Substitute Options. Notwithstanding the provisions of
Sections 5.3.1, in the event that the Company or an Affiliate
consummates a transaction in which persons may become Employees on
account of such transaction, such persons may be granted Options in
substitution for options granted by such former employer or recipient
of services. If such substitute Options are granted, the Committee, in
its sole discretion, may determine that such substitute Options shall
have an exercise price less than one hundred (100%) of the Fair Market
Value of the Shares on the Grant Date.
5.4 Expiration of Options.
5.4.1 Expiration Dates. Each Option shall terminate upon the
earlier of the first to occur of the following events: (a) The date for
termination of the Option set forth in the Award Agreement; or
(b) The expiration of ten (10) years from the
Grant Date; or
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(c) The expiration of one (1) year from the date
of the Optionee's Termination of Service for
a reason other than the Optionee's death,
Disability or Retirement; or
(d) The expiration of three (3) years from the
date of the Optionee's Termination of
Service by reason of Disability or death; or
(e) The expiration of three (3) years from the
date of the Optionee's Retirement.
5.4.2 Committee Discretion. Subject to the limits of Section
5.4.1, the Committee, in its sole discretion, (a) shall provide in each
Award Agreement when each Option expires and becomes unexercisable, and
(b) may, after an Option is granted, extend the maximum term of the
Option.
5.5 Exercisability of Options. Options granted under this Plan shall be
exercisable at such times and be subject to such restrictions and conditions as
the Committee shall determine in its sole discretion. After an Option is
granted, the Committee, in its sole discretion, may accelerate the
exercisability of the Option.
5.6 Payment. Options shall be exercised by the Participant's delivery
of a written notice of exercise to the Secretary of the Company (or its
designee), setting forth the number of Shares with respect to which the Option
is to be exercised, accompanied by full payment for the Shares.
Upon the exercise of any Option, the Exercise Price shall be payable to
the Company in full in cash or its equivalent. The Committee, in its sole
discretion, also may permit exercise (a) by tendering previously acquired Shares
having an aggregate Fair Market Value at the time of exercise equal to the total
Exercise Price, or (b) by any other means which the Committee, in its sole
discretion, determines (i) to provide legal consideration for the Shares, and
(ii) to be consistent with the purposes of this Plan.
As soon as practicable after receipt of a written notification of
exercise and full payment for the Shares purchased, the Company shall deliver to
the Participant (or the Participant's designated broker), Share certificates
(which may be in book entry form) representing such Shares.
5.7 Restrictions on Share Transferability. The Committee may impose
such restrictions on any Shares acquired pursuant to the exercise of an Option
as it may deem advisable or appropriate in its sole discretion, including, but
not limited to, restrictions related to applicable Federal securities laws, the
requirements of any national securities exchange or system upon which Shares are
then listed or traded, and any blue sky or state securities laws.
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SECTION 6
STOCK APPRECIATION RIGHTS
6.1 Grant of SARs. Subject to the terms and conditions of this Plan, an
SAR may be granted to Employees at any time and from time to time as shall be
determined by the Committee, in its sole discretion. The Committee may grant
Affiliated SARs, Freestanding SARs, Tandem SARs, or any combination thereof.
6.1.1 Number of Shares. The Committee shall have complete
discretion to determine the number of SARs granted to any Participant,
provided that during any Fiscal Year, no Participant shall be granted
SARs covering more than 50,000 Shares.
6.1.2 Exercise Price and Other Terms. The Committee, subject
to the provisions of this Plan, shall have complete discretion to
determine the terms and conditions of SARs granted under this Plan;
provided, however, that the exercise price of a Freestanding SAR shall
be not less than one hundred percent (100%) of the Fair Market Value of
a Share on the Grant Date. The exercise price of Tandem or Affiliated
SARs shall equal the Exercise Price of the related Option.
6.2 Exercise of Tandem SARs. Tandem SARs may be exercised for all or
part of the Shares subject to the related Option upon the surrender of the right
to exercise the equivalent portion of the related Option. A Tandem SAR may be
exercised only with respect to the Shares for which its related Option is then
exercisable.
6.3 Exercise of Affiliated SARs. An Affiliated SAR shall be deemed to
be exercised upon the exercise of the related Option. The deemed exercise of an
Affiliated SAR shall not necessitate a reduction in the number of Shares subject
to the related Option.
6.4 Exercise of Freestanding SARs. Freestanding SARs shall be
exercisable on such terms and conditions as the Committee, in its sole
discretion, shall determine.
6.5 SAR Agreement. Each SAR grant shall be evidenced by an Award
Agreement that shall specify the exercise price, the term of the SAR, the
conditions of exercise, and such other terms and conditions as the Committee, in
its sole discretion, shall determine.
6.6 Expiration of SARs. An SAR granted under this Plan shall expire
upon the date determined by the Committee, in its sole discretion, as set forth
in the Award Agreement. Notwithstanding the foregoing, the terms and provisions
of Section 5.4 also shall apply to SARs.
6.7 Payment of SAR Amount. Upon exercise of an SAR, a Participant shall
be entitled to receive payment from the Company in an amount determined by
multiplying:
(a) The positive difference between the Fair Market Value of a
Share on the date of exercise over the exercise price; by
(b) The number of Shares with respect to which the SAR is
exercised.
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At the sole discretion of the Committee, the payment upon an SAR exercise may be
in cash, in Shares of equivalent value, or in any combination thereof.
SECTION 7
RESTRICTED STOCK
7.1 Grant of Restricted Stock. Subject to the terms and provisions of
this Plan, the Committee, at any time and from time to time, may grant Shares of
Restricted Stock to Employees in such amounts as the Committee, in its sole
discretion, shall determine. The Committee, in its sole discretion, shall
determine the number of Shares to be granted to each Participant; provided,
however, that during any Fiscal Year, no Participant shall receive more than
50,000 Shares of Restricted Stock.
7.2 Restricted Stock Agreement. Each Award of Restricted Stock shall be
evidenced by an Award Agreement that shall specify the Period of Restriction,
the number of Shares granted, and such other terms and conditions as the
Committee, in its sole discretion, shall determine. Unless the Committee, in its
sole discretion, determines otherwise, Shares of Restricted Stock shall be held
by the Company as escrow agent until the end of the applicable Period of
Restriction.
7.3 Transferability. Except as provided in this Section 7, Shares of
Restricted Stock may not be sold, transferred, gifted, bequeathed, pledged,
assigned, or otherwise alienated or hypothecated, voluntarily or involuntarily,
until the end of the applicable Period of Restriction.
7.4 Other Restrictions. The Committee, in its sole discretion, may
impose such other restrictions on Shares of Restricted Stock as it may deem
advisable or appropriate in accordance with this Section 7.4.
7.4.1 General Restrictions. The Committee may set restrictions
based upon (a) the achievement of specific performance objectives
(Company-wide, divisional or individual), (b) applicable Federal or
state securities laws, or (c) any other basis determined by the
Committee in its sole discretion.
7.4.2 Legend on Certificates. The Committee, in its sole
discretion, may legend the certificates representing Restricted Stock
to give appropriate notice of such restrictions. For example, the
Committee may determine that some or all certificates representing
Shares of Restricted Stock shall bear the following legend:
"THE SALE OR OTHER TRANSFER OF THE SHARES OF STOCK REPRESENTED
BY THIS CERTIFICATE, WHETHER VOLUNTARY, INVOLUNTARY, OR BY
OPERATION OF LAW, IS SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFER AS SET FORTH IN THE APPLEBEE'S INTERNATIONAL, INC.
1999 EMPLOYEE INCENTIVE PLAN, AND IN A RESTRICTED STOCK
AGREEMENT. A COPY OF THIS PLAN AND SUCH RESTRICTED STOCK
AGREEMENT MAY BE OBTAINED FROM THE SECRETARY OF APPLEBEE'S
INTERNATIONAL, INC."
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7.5 Removal of Restrictions. Except as otherwise provided in this
Section 7, Shares of Restricted Stock covered by each Restricted Stock grant
made under this Plan shall be released from escrow as soon as practicable after
the end of the applicable Period of Restriction. The Committee, in its sole
discretion, may accelerate the time at which any restrictions shall lapse and
remove any restrictions. After the end of the applicable Period of Restriction,
the Participant shall be entitled to have any legend or legends under Section
7.4.2 removed from his or her Share certificate, and the Shares shall be freely
transferable by the Participant.
7.6 Voting Rights. During the Period of Restriction, Participants
holding Shares of Restricted Stock granted hereunder may exercise full voting
rights with respect to those Shares, unless the applicable Award Agreement
provides otherwise.
7.7 Dividends and Other Distributions. During the Period of
Restriction, Participants holding Shares of Restricted Stock shall be entitled
to receive all dividends and other distributions paid with respect to such
Shares unless otherwise provided in the applicable Award Agreement. If any such
dividends or distributions are paid in Shares, the Shares shall be subject to
the same restrictions on transferability and forfeitability as the Shares of
Restricted Stock with respect to which they were paid.
7.8 Return of Restricted Stock to Company. On the date set forth in the
applicable Award Agreement, the Restricted Stock for which restrictions have not
lapsed shall revert to the Company and thereafter shall be available for grant
under this Plan.
SECTION 8
PERFORMANCE UNITS AND PERFORMANCE SHARES
8.1 Grant of Performance Units/Shares. Performance Units and
Performance Shares may be granted to Employees at any time and from time to
time, as shall be determined by the Committee, in its sole discretion. The
Committee shall have complete discretion in determining the number of
Performance Units and Performance Shares granted to each Participant; provided,
however, that during any Fiscal Year, (a) no Participant shall receive
Performance Units having an initial value greater than $250,000, and (b) no
Participant shall receive more than 50,000 Performance Shares.
8.2 Value of Performance Units/Shares. Each Performance Unit shall have
an initial value that is established by the Committee on or before the Grant
Date. Each Performance Share shall have an initial value equal to the Fair
Market Value of a Share on the Grant Date.
8.3 Performance Objectives and Other Terms. The Committee shall set
performance objectives in its sole discretion which, depending on the extent to
which they are met, will determine the number or value of Performance Units or
Performance Shares, or both, that will be paid out to the Participants. The time
period during which the performance objectives must be met shall be called the
"Performance Period." Each Award of Performance Units or Performance Shares
shall be evidenced by an Award Agreement that shall specify the Performance
Period, and such other terms and conditions as the Committee, in its sole
discretion, shall determine. The Committee may set performance objectives based
upon (a) the achievement of Company-wide, divisional or individual goals, (b)
applicable Federal or state securities laws, or (c) any other basis determined
by the Committee in its discretion.
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8.4 Earning of Performance Units/Shares. After the applicable
Performance Period has ended, the holder of Performance Units or Performance
Shares shall be entitled to receive a payout of the number of Performance Units
or Performance Shares, as the case may be, earned by the Participant over the
Performance Period, to be determined as a function of the extent to which the
corresponding performance objectives have been achieved. After the grant of a
Performance Unit or Performance Share, the Committee, in its sole discretion,
may reduce or waive any performance objectives for such Performance Unit or
Performance Share.
8.5 Form and Timing of Payment of Performance Units/Shares. Payment of
earned Performance Units or Performance Shares shall be made as soon as
practicable after the end of the applicable Performance Period. The Committee,
in its sole discretion, may pay earned Performance Units or Performance Shares
in the form of cash, in Shares (which have an aggregate Fair Market Value equal
to the value of the earned Performance Units or Performance Shares, as the case
may be, at the end of the applicable Performance Period), or in any combination
thereof.
8.6 Cancellation of Performance Units/Shares. On the earlier of date
set forth in the Award Agreement or the Participant's Termination of Service
(other than by death, Disability or Retirement), all unearned or unvested
Performance Units or Performance Shares shall be forfeited to the Company, and
thereafter shall be available for grant under this Plan. In the event of a
Participant's death, Disability or Retirement, prior to the end of a Performance
Period, the Committee shall reduce his or her Performance Units or Performance
Shares proportionately based on the date of such Termination of Service.
SECTION 9
MISCELLANEOUS
9.1 Deferrals. The Committee, in its sole discretion, may permit a
Participant to defer receipt of the payment of cash or the delivery of Shares
that would otherwise be due to such Participant under an Award. Any such
deferral election shall be subject to such rules and procedures as shall be
determined by the Committee in its sole discretion.
9.2 No Effect on Employment or Service. Nothing in this Plan shall
interfere with or limit in any way the right of the Company to terminate any
Participant's employment or service at any time, with or without cause. For
purposes of this Plan, transfer of employment of a Participant between the
Company and any of its Affiliates (or between Affiliates) shall not be deemed a
Termination of Service. Employment with the Company and its Affiliates is on an
at-will basis only, unless otherwise provided by an applicable employment
agreement between the Participant and the Company or its Affiliate, as the case
may be.
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9.3 Participation. No Employee shall have the right to be selected to
receive an Award under this Plan, or, having been so selected, to be selected to
receive a future Award.
9.4 Indemnification. Each person who is or shall have been a member of
the Committee, or of the Board, shall be indemnified and held harmless by the
Company against and from (a) any loss, cost, liability or expense (including
attorneys' fees) that may be imposed upon or reasonably incurred by him or her
in connection with or resulting from any claim, action, suit or proceeding to
which he or she may be a party or in which he or she may be involved by reason
of any action taken or failure to act under this Plan or any Award Agreement,
and (b) from any and all amounts paid by him or her in settlement thereof, with
the Company's prior written approval, or paid by him or her in satisfaction of
any judgment in any such claim, action, suit or proceeding against him or her;
provided, however, that he or she shall give the Company an opportunity, at its
own expense, to handle and defend the same before he or she undertakes to handle
and defend it on his or her own behalf. The foregoing right of indemnification
shall not be exclusive of any other rights of indemnification to which such
persons may be entitled under the Company's Certificate of Incorporation or
Bylaws, by contract, as a matter of law or otherwise, or under any power that
the Company may have to indemnify them or hold them harmless.
9.5 Successors. All obligations of the Company under this Plan, with
respect to Awards granted hereunder, shall be binding on any successor to the
Company, whether the existence of such successor is the result of a direct or
indirect purchase, merger, consolidation or otherwise, of all or substantially
all of the business or assets of the Company.
9.6 Beneficiary Designations. If permitted by the Committee, a
Participant under this Plan may name a beneficiary or beneficiaries to whom any
vested but unpaid Award shall be paid in the event of the Participant's death.
Each such designation shall revoke all prior designations by the Participant and
shall be effective only if given in a form and manner acceptable to the
Committee. In the absence of any such designation, any vested benefits remaining
unpaid at the Participant's death shall be paid to the Participant's estate and,
subject to the terms of this Plan and of the applicable Award Agreement, any
unexercised vested Award may be exercised by the administrator or executor of
the Participant's estate.
9.7 Nontransferability of Awards. No Award granted under this Plan may
be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated,
other than by will, by the laws of descent and distribution, or to the limited
extent provided in Section 9.6. All rights with respect to an Award granted to a
Participant shall be available during his or her lifetime only to the
Participant.
9.8 No Rights as Stockholder. Except to the limited extent provided in
Sections 7.6 and 7.7, no Participant (nor any beneficiary thereof) shall have
any of the rights or privileges of a stockholder of the Company with respect to
any Shares issuable pursuant to an Award (or the exercise thereof), unless and
until certificates representing such Shares shall have been issued, recorded on
the records of the Company or its transfer agents or registrars, and delivered
to the Participant (or his or her beneficiary).
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SECTION 10
AMENDMENT, TERMINATION, AND DURATION
10.1 Amendment, Suspension, or Termination. The Board, in its sole
discretion, may amend or terminate this Plan, or any part thereof, at any time
and for any reason. The amendment, suspension or termination of this Plan shall
not, without the consent of the Participant, alter or impair any rights or
obligations under any Award theretofore granted to such Participant. No Award
may be granted during any period of suspension or after termination of this
Plan.
10.2 Duration of this Plan. This Plan shall become effective on the
date specified herein and, subject to Section 10.1 (regarding the Board's right
to amend or terminate this Plan), shall remain in effect thereafter.
SECTION 11
TAX WITHHOLDING
11.1 Withholding Requirements. Prior to the delivery of any Shares or
cash pursuant to an Award (or the exercise thereof), the Company shall have the
power and the right to deduct or withhold, or require a Participant to remit to
the Company, an amount sufficient to satisfy Federal, state and local taxes
(including the Participant's FICA obligation) required to be withheld with
respect to such Award (or the exercise thereof).
11.2 Withholding Arrangements. The Committee, in its sole discretion
and pursuant to such procedures as it may specify from time to time, may permit
a Participant to satisfy such tax withholding obligation, in whole or in part,
by (a) electing to have the Company withhold otherwise deliverable Shares, or
(b) delivering to the Company Shares then owned by the Participant having a Fair
Market Value equal to the amount required to be withheld. The amount of the
withholding requirement shall be deemed to include any amount that the Committee
agrees may be withheld at the time any such election is made, not to exceed the
amount determined by using the maximum federal, state or local marginal income
tax rates applicable to the Participant with respect to the Award on the date
that the amount of tax to be withheld is to be determined. The Fair Market Value
of the Shares to be withheld or delivered shall be determined as of the date
that the taxes are required to be withheld.
SECTION 12
CHANGE IN CONTROL
12.1 Change in Control. In the event of a Change in Control of the
Company, all Awards granted under this Plan that then are outstanding and not
then exercisable or are subject to restrictions, shall, unless otherwise
provided for in the Agreements applicable thereto, become immediately
exercisable, and all restrictions shall be removed, as of the first date that
the Change in Control has been deemed to have occurred, and shall remain as such
for the remaining life of the Award as provided herein and within the provisions
of the related Agreements.
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12.2 Definition. For purposes of Section 12.1 above, a Change in
Control of the Company shall be deemed to have occurred if the conditions set
forth in any one or more of the following shall have been satisfied, unless such
condition shall have received prior approval of a majority vote of the
Continuing Directors, as defined below, indicating that Section 12.1 shall not
apply thereto:
12.2.1 any "person", as such term is used in Sections 13(d)
and 14(d) of the Exchange Act (other than the Company, any trustee or
other fiduciary holding securities under an employee benefit plan of
the Company or any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as
their ownership of stock of the Company), is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing thirty percent
(30%) or more of the combined voting power of the Company's then
outstanding securities;
12.2.2 during any period of two consecutive years (not
including any period prior to the Effective Date of this Plan),
individuals ("Existing Directors") who at the beginning of such period
constitute the Board of Directors, and any new director (an "Approved
Director") (other than a director designated by a person who has
entered into an agreement with the Company to effect a transaction
described in Section 12.2.1, 12.2.2 or 12.2.3) whose election by the
Board of Directors or nomination for election by the Company's
shareholders was approved by a vote of a least two-thirds (2/3) of the
directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election
previously was so approved (Existing Directors together with Approved
Directors constituting "Continuing Directors"), cease for any reason to
constitute at least a majority of the Board of Directors; or
12.2.3 the stockholders of the Company approve a merger or
consolidation of the Company with any other person, other than (i) a
merger or consolidation which would result in the voting securities of
the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities for the surviving entity) more than fifty percent
(50%) of the combined voting power of the voting securities of the
Company or such surviving entity outstanding immediately after such
merger or consolidation, or (ii) a merger in which no "person" (as
defined in Section 12.2.1) acquires more than thirty percent (30%) of
the combined voting power of the Company's then outstanding securities;
or
(d) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets (or
any transaction having a similar effect).
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SECTION 13
LEGAL CONSTRUCTION
13.1 Gender and Number. Except where otherwise indicated by the
context, any masculine term used herein also shall include the feminine, the
plural shall include the singular, and the singular shall include the plural.
13.2 Severability. In the event any provision of this Plan shall be
held illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of this Plan, and this Plan shall be construed and
enforced as if the illegal or invalid provision had not been included.
13.3 Requirements of Law. The grant of Awards and the issuance of
Shares under this Plan shall be subject to all applicable laws, rules and
regulations, and to such approvals by any governmental agencies or national
securities exchanges as may be required from time to time.
13.4 Governing Law. This Plan and all Award Agreements shall be
construed in accordance with and governed by the laws of the State of Kansas
(excluding its conflict of laws provisions).
13.5 Captions. Captions are provided herein for convenience of
reference only, and shall not serve as a basis for interpretation or
construction of this Plan.
14
EXHIBIT 5
January 28, 2000
Applebee's International, Inc.
4551 West 107th Street
Overland Park, Kansas 66207
Gentlemen:
I refer to the Registration Statement of Applebee's International, Inc. (the
"Company") on Form S-8 to be filed with the Securities and Exchange Commission
for the purpose of registering under the Securities Act of 1933, as amended,
1,933,000 shares of the Company's Common Stock, $.01 par value (the "Common
Stock"), to be issued upon the exercise of options currently outstanding and to
be granted in the future under the Applebee's International, Inc. 1995 Equity
Incentive Plan and the 1999 Employee Incentive Plan (the "Plans").
I am familiar with the proceedings to date with respect to such proposed
issuance and have examined such records, documents and matters of law and
satisfied myself as to such matters of fact as I have considered relevant for
the purposes of this opinion.
Based upon the foregoing, it is my opinion that the 1,933,000 shares of Common
Stock to be issued under the Plans have been duly authorized, and, when
purchased in accordance with the Plans, will be legally issued, fully paid and
non-assessable.
I hereby consent to the filing of this opinion as Exhibit 5 to the Registration
Statement.
Very truly yours,
Robert T. Steinkamp
Vice President/General Counsel
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Applebee's International, Inc. on Form S-8 of our report dated
February 26, 1999, appearing in the Annual Report on Form 10-K of Applebee's
International, Inc. for the year ended December 27, 1998.
DELOITTE & TOUCHE LLP
Kansas City, Missouri
January 28, 2000
