INDIANA
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37-0684070
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification No.)
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175
EAST HOUSTON STREET, SUITE 1300
SAN
ANTONIO, TEXAS
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78205
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(Address
of principal executive offices)
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(Zip
code)
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(317)
633-4100
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(Registrant's telephone number,
including area code)
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Duane
E. Geiger
Interim
Chief Financial Officer
Biglari
Holdings Inc.
36
S. Pennsylvania Street,
Suite
500
Indianapolis, Indiana
46204
(Name and address of
agent for service)
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(317)
633-4100
(Telephone
number, including area
code,
of agent for service)
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Copies
to:
Craig
C. Burke
Ice
Miller LLP
One
American Square, Box 82001
Indianapolis,
Indiana 46282
(317)
236-2100
Steve
Wolosky
Olshan
Grundman Frome Rosenzweig & Wolosky LLP
Park
Avenue Tower
65
East 55th Street
New
York, New York 10022
(212)
451-2300
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CALCULATION
OF REGISTRATION FEE
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Title
of Securities to be
Registered
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Amount
to be
Registered
(1)
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Proposed
Maximum
Offering
Price
Per
Share (2)
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Proposed
Maximum
Aggregate
Offering
Price
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Amount
of
Registration
Fee
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||||||||||||
Common
Stock, stated
value
$0.50 per share
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10,000 | $ | 409.63 | $ | 4,096,300 | $ | 292.07 |
Item
3.
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Incorporation
of Documents by Reference.
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a.
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The
Registrant's Annual Report on Form 10-K for the year ended September 30,
2009, filed with the Securities and Exchange Commission (the “Commission”)
on December 14, 2009, as amended by Amendment No. 1 on Form 10-K/A, filed
with the Commission on January 28,
2010;
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b.
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The
Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended
December 23, 2009, filed with the Commission on January 29,
2010;
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c.
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The
Registrant's Current Reports on Form 8-K, filed with the Commission on
October 23, 2009, December 18, 2009, December 22, 2009, January 28, 2010,
January 29, 2010, February 2, 2010, March 11, 2010, March 30, 2010 and
April 9, 2010, other than portions of such reports furnished under Item
2.02 or 7.01 on Form 8-K;
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d.
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The
Registrant’s Prospectus filed with the Commission pursuant to Rule 424(b)
under the Securities Act of 1933, as amended, on March 5, 2010;
and
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e.
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The
description of the Registrant's Common Stock which is contained in the
Registrant's Registration Statement on Form 8-A, filed with the Commission
on October 28, 1996, as updated by Form 8-K filed on December 14, 2009 and
by Form 8-K filed on February 2, 2010, including any amendment or report
filed for the purpose of updating such
description.
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Item
4.
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Description
of Securities.
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Item
5.
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Interests
of Named Experts and Counsel.
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Item
6.
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Indemnification
of Officers and Directors.
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Item
7.
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Exemption
from Registration Claimed.
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Item
8.
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Exhibits.
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Number
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Description
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4.1*
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Amended
and Restated Articles of Incorporation of the Registrant, filed March 27,
2002, as amended by Articles of Amendment dated December 17, 2009, January
27, 2010 and April 8, 2010.
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4.2
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Restated
Bylaws of Registrant, as amended through June 17, 2009 (incorporated by
reference to Exhibit 3.01 to the Registrant’s Quarterly Report on Form
10-Q for the quarter ended July 1, 2009, filed on August 10,
2009).
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5.1
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The
Registrant will submit in a timely manner The Steak n Shake 401(k) Savings
Plan to the Internal Revenue Service and will make all changes in order to
qualify the Plan.
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23.1*
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Consent
of Deloitte & Touche LLP.
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24.1
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Power
of Attorney (set forth on Signature
Page).
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Item
9.
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Undertakings.
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(a)
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The
undersigned Registrant hereby
undertakes:
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(1)
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To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933;
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(ii)
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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 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the effective
registration statement.
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(iii)
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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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(2)
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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.
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(3)
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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.
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(b)
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The
undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the
Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plan’s annual report pursuant to 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.
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(c)
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Insofar
as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant 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 Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant 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
Registrant 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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BIGLARI
HOLDINGS INC.
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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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Signatures
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Title
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Date
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||
/s/
Sardar Biglari
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Chairman,
Chief Executive Officer and Director (principal executive
officer)
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April
15, 2010
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Sardar
Biglari
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/s/
Duane Geiger
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Interim
Chief Financial Officer, Vice President, and Controller (principal
financial and accounting officer)
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April
15, 2010
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Duane
Geiger
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/s/
Philip Cooley
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Director
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April
15, 2010
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Philip
Cooley
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/s/
Ruth J. Person
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Director
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April
15, 2010
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Ruth
J. Person
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||||
/s/
William J. Regan, Jr.
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Director
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April
15, 2010
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William
J. Regan, Jr.
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||||
/s/
John W. Ryan
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Director
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April
15, 2010
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John
W. Ryan
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THE
STEAK N SHAKE 401(k) SAVINGS PLAN
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By:
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/s/ Sardar Biglari
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Sardar
Biglari, on behalf of Steak n Shake Operations, Inc., the Plan
Sponsor
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Number
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Description
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4.1*
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Amended
and Restated Articles of Incorporation of the Registrant, filed March 27,
2002, as amended by Articles of Amendment dated December 17, 2009, January
27, 2010 and April 8, 2010.
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4.2
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Restated
Bylaws of Registrant, as amended through June 17, 2009 (incorporated by
reference to Exhibit 3.01 to the Registrant’s Quarterly Report on Form
10-Q for the quarter ended July 1, 2009, filed on August 10,
2009).
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5.1
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The
Registrant will submit in a timely manner The Steak n Shake 401(k) Savings
Plan to the Internal Revenue Service and will make all changes in order to
qualify the Plan.
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23.1*
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Consent
of Deloitte & Touche LLP.
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24.1
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Power
of Attorney (set forth on Signature
Page).
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