<PAGE> 1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
Amendment No. 5
(Final Amendment)
to
SCHEDULE 13E-3
Rule 13e-3 Transaction Statement
(Pursuant to Section 13(e) of the Securities Exchange Act of 1934)
SUMMIT FAMILY RESTAURANTS INC.
(Name of the Issuer)
----------------------------------
CKE RESTAURANTS, INC.
SUMMIT FAMILY RESTAURANTS INC.
(Name of Person(s) Filing Statement)
----------------------------------
COMMON STOCK, PAR VALUE $0.10 PER SHARE
(Title of Class of Securities)
866056 10 4
(CUSIP Number of Class of Securities)
<TABLE>
<S> <C>
ROBERT A. WILSON, ESQ. CHARLOTTE L. MILLER, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL SENIOR VICE PRESIDENT AND GENERAL
CKE RESTAURANTS, INC. COUNSEL
1200 NORTH HARBOR BOULEVARD SUMMIT FAMILY RESTAURANTS INC.
ANAHEIM, CALIFORNIA 92801 440 LAWNDALE DRIVE
SALT LAKE CITY, UTAH 84115-2917
</TABLE>
(Name, Address and Telephone Number of Persons Authorized to Receive
Notices and Communications on Behalf of Persons Filing Statement)
COPIES TO:
<TABLE>
<S> <C>
C. CRAIG CARLSON, ESQ. RICHARD G. BROWN, ESQ.
J. MICHAEL VAUGHN, ESQ. BRIAN G. LLOYD, ESQ.
STRADLING, YOCCA, CARLSON & RAUTH KIMBALL, PARR, WADDOUPS, BROWN & GEE
660 NEWPORT CENTER DRIVE, SUITE 1600 185 SOUTH STATE STREET, SUITE 1300
NEWPORT BEACH, CALIFORNIA 92660 SALT LAKE CITY, UTAH 84147
</TABLE>
----------------------------------
This Statement is filed in connection with:
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.
b. [X] 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: / /
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<PAGE> 2
INTRODUCTION
This Amendment No. 5 to joint Transaction Statement on Schedule 13E-3 (the
"Statement") is filed by Summit Family Restaurants Inc., a Delaware corporation
("Summit" or the "Company"), the issuer of the class of equity securities that
is the subject of a Rule 13E-3 transaction, and CKE Restaurants, Inc., a
Delaware corporation ("CKE"), and supplements and amends the joint Transaction
Statement on Schedule 13E-3, as amended and supplemented, of Summit and CKE and
constitutes the final amendment to such Schedule pursuant to Rule 13e-3(d)(3).
On July 15, 1996, pursuant to that certain Agreement and Plan of Merger, dated
as of November 30, 1995 (as amended, the "Merger Agreement"), among the Company,
CKE and Summit Merger, Inc., a Delaware corporation and wholly-owned subsidiary
of CKE ('Merger Sub"), Merger Sub was merged with and into Summit (the
"Merger"). As a result of the Merger, holders of shares of Common Stock of the
Company, par value $0.10 per share (the "Summit Common Stock") which were issued
and outstanding immediately prior to the Merger, other than CKE and stockholders
of the Company who perfect statutory dissenters' rights, are entitled to receive
$2.63 in cash and 0.1043 shares of Common Stock of CKE, par value $0.01 per
share (the "CKE Common Stock") for each share of Summit Common Stock, together
with cash in lieu of fractional shares. As a result of the Merger, the Company,
as the surviving corporation, became a privately held corporation and a
wholly-owned subsidiary of CKE.
2
<PAGE> 3
17. MATERIAL TO BE FILED AS EXHIBITS.
Item 17 is hereby amended to add the following exhibits:
<TABLE>
<S> <C> <C>
99.17 Press Release, in the form issued by CKE on July 16, 1996.
99.18 Press Release, in the form issued by the Company on July 15, 1996.
99.19 Letter to the Company's former stockholders from CKE dated July 15,
1996.
99.20 Form of Letter of Transmittal.
</TABLE>
3
<PAGE> 4
SIGNATURE
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.
Dated: July 19, 1996 CKE RESTAURANTS, INC.
By: /s/ ROBERT A. WILSON
------------------------------------
Robert A. Wilson,
Vice President and General Counsel
4
<PAGE> 5
SIGNATURE
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.
Dated: July 19, 1996 SUMMIT FAMILY RESTAURANTS INC.
By: /s/ ROBERT A. WILSON
------------------------------------
Robert A. Wilson
Vice President
and General Counsel
5
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
EXHIBIT NO. DESCRIPTION PAGE
- ----------- ----------------------------------------------------------------------- ------------
<C> <S> <C>
*99.1 Opinion of Piper Jaffray Inc., dated November 30, 1995. --
*99.2 Report of Piper Jaffray Inc. delivered to the Special Committee on --
November 30, 1995.
*99.3 Opinion of Piper Jaffray Inc., dated January 24, 1996. --
*99.4 Report of Piper Jaffray Inc. delivered to the Special Committee on --
January 24, 1996.
*99.5 Opinion of Piper Jaffray Inc., dated March 26, 1996. --
*99.6 Report of Piper Jaffray delivered to the Special Committee on March 26, --
1996.
*99.7 Opinion of Piper Jaffray Inc., dated June 5, 1996.
*99.8 Agreement and Plan of Merger dated as of November 30, 1995, as amended, --
among the Company, CKE and Merger Sub (attached as Appendix A to the
Proxy Statement/Prospectus).
*99.9 Copies of Letter to Stockholders, Notice of Special Meeting and Proxy
Statement/Prospectus for Special Meeting of the Stockholders of the
Company to be held on July 12, 1996.
*99.10 Forms of Proxy.
*99.11 Text of Section 162 of the General Corporation Law of the State of --
Delaware (attached as Appendix C to the Proxy Statement/Prospectus).
*99.12 Letter, dated June 25, 1996, from the Company's Board of Directors to --
the Company's stockholders responding to the Proxy Statements
disseminated by the Opposition Group.
*99.13 Proxy Statement/Prospectus Supplement, dated July 2, 1996. --
*99.14 Opinion of Houlihan, Lokey, Howard & Zukin, Inc. ("Houlihan Lokey"), --
dated June 26, 1996.
*99.15 Report of Houlihan Lokey delivered to the Board of Directors of the --
Company on June 26, 1996.
*99.16 Press Release, in the form issued by the Company on June 28, 1996. --
99.17 Press Release, in the form issued by CKE on July 16, 1996.
99.18 Press Release, in the form issued by the Company on July 15, 1996.
99.19 Letter to the Company's former stockholders from CKE dated July 15,
1996.
99.20 Form of Letter of Transmittal.
</TABLE>
- ---------------
* Previously filed
6
<PAGE> 1
EXHIBIT 99.17
NEWS RELEASE
FOR: CKE Restaurants, Inc.
CONTACTS: Loren Pannier
714.778.7109
Bob Wheaton
714.490.3638
FOR IMMEDIATE RELEASE
CKE RESTAURANTS, INC. ANNOUNCES ACQUISITION OF
SUMMIT FAMILY RESTAURANTS INC.
ANAHEIM, Calif. -- July 16, 1996 -- CKE Restaurants, Inc. (NYSE:CKR) announced
today that it completed its acquisition of Summit Family Restaurants, Inc.
(NASDAQ-NMS:SMFR) on Monday, July 15, 1996. Stockholders of Summit approved the
merger on Friday, July 12, 1996 in Salt Lake City, Utah. Pursuant to the terms
of the merger agreement, Summit stockholders who have not validly asserted
dissenters rights will be entitled to receive $2.63 in cash and 0.1043 shares
of CKE common stock for each share of Summit common stock held on the effective
date of the merger.
Each former stockholder of Summit will be provided with the necessary
materials to facilitate the exchange of shares of Summit common stock for
the merger consideration. First Interstate Bank of California has been appointed
by CKE to act as the exchange agent to facilitate this process. Stockholders of
Summit should not send their stock certificates to either CKE or Summit but
rather should await receipt of the transmittal materials from the exchange
agent.
<PAGE> 2
2-2-2
CKE Restaurants, Inc. is the parent of Carl Karcher Enterprises, Inc.,
which along with its franchisees and licensees, operates approximately 660
Carl's Jr. quick service restaurants, primarily located in California, Nevada,
Oregon, Arizona, Mexico and the Pacific Rim. Summit Family Restaurants Inc. has
restaurant operations in nine western states including 77 Company-operated and
24 franchised JB's Restaurants, 6 Galaxy Diner restaurants and 16 HomeTown
Buffet restaurants.
###
<PAGE> 1
EXHIBIT 99.18
[LOGO] 400 LAWNDALE DRIVE
SALT LAKE CITY, UTAH 84113-2917
801-463-5500 NEWS RELEASE
FOR IMMEDIATE RELEASE: Monday, July 15, 1996
CONTACT: David E. Pertl
Senior Vice President, CFO
Summit Family Restaurants Inc.
(801) 463-5500
SUMMIT FAMILY RESTAURANTS INC. ANNOUNCES STOCKHOLDER
APPROVAL OF MERGER WITH CKE RESTAURANTS, INC.
SALT LAKE CITY, UTAH -- Summit Family Restaurants Inc. (NASDAQ-NMS: SMFR)
announced today that its stockholders have approved the merger of Summit with
CKE Restaurants, Inc. (NYSE: CKR). At the special meeting of stockholders of
Summit held on Friday, July 12, 1996 in Salt Lake City, Utah, holders of 65.1%
of the outstanding common stock voted to approve the merger. The outcome of the
election has been certified by The Corporation Trust Company, an independent
inspector of election appointed for that purpose.
Pursuant to the terms of the merger agreement, Summit stockholders who have not
validly asserted dissenters rights will be entitled to receive $2.63 in cash
and 0.1043 shares of CKE common stock for each share of Summit common stock
held on the effective date of the merger. The merger is expected to close and
be effective later today, Monday, July 15, 1996. Accordingly, July 15, 1996 is
expected to be the last day on which Summit common stock is traded on the Nasdaq
National Market.
It is expected that promptly after the effectiveness of the merger, each former
stockholder of Summit will be provided with the necessary materials to
facilitate the exchange of shares of Summit common stock for the merger
consideration. Summit understands that First Interstate Bank of California has
been appointed by CKE Restaurants, Inc. to act as the exchange agent to
facilitate this process. Stockholders of Summit should not send their stock
certificates to either Summit or CKE Restaurants, but rather should await
receipt of the transmittal materials from the exchange agent.
Summit Family Restaurants Inc. has restaurant operations in nine western states
including 77 Company-operated and 24 franchised JB's Restaurants, 6 Galaxy
Diner restaurants and 16 HomeTown Buffet restaurants.
###
<PAGE> 1
EXHIBIT 99.19
[LETTERHEAD]
July 15, 1996
To the Former Stockholders
of Summit Family Restaurants Inc.
We are pleased to inform you that the acquisition of Summit Family
Restaurants Inc. ("Summit") by CKE Restaurants, Inc. ("CKE") was completed on
Monday, July 15, 1996. The acquisition was effected by the merger of Summit
Merger, Inc., a wholly-owned subsidiary of CKE, with and into Summit, with
Summit surviving the merger as a wholly-owned subsidiary of CKE. As a result of
the merger, you are entitled to receive 0.1043 shares of Common Stock of CKE and
cash in the amount of $2.63 for each share of Summit Common Stock that you own.
Enclosed is a Letter of Transmittal which must be completed by you and then
sent with your Summit stock certificates to First Interstate Bank of California
(the "Exchange Agent"), which will send you a stock certificate for the shares
of CKE Common Stock and a check for the amount of cash which you are entitled to
receive as a result of the merger. Accompanying the Letter of Transmittal are
instructions detailing the procedures to be followed in effecting the exchange
of your Summit shares for the CKE shares and cash. Please read the instructions
carefully and then complete and sign the Letter of Transmittal. If you have any
questions concerning the exchange of your stock certificates, please contact the
Exchange Agent at the telephone number set forth in the Letter of Transmittal.
On behalf of the management of CKE, let me take this opportunity to welcome
you as a stockholder of CKE.
Very truly yours,
/s/ WILLIAM P. FOLEY II
---------------------------------
William P. Foley II
Chairman of the Board
and Chief Executive Officer
<PAGE> 1
EXHIBIT 99.20
CKE RESTAURANTS, INC. AND SUMMIT FAMILY RESTAURANTS INC.
LETTER OF TRANSMITTAL
FOR SUMMIT COMMON STOCK
PLEASE READ THE ENCLOSED INSTRUCTIONS CAREFULLY BEFORE COMPLETING THIS FORM.
To be completed, signed and mailed or delivered with certificates formerly
representing shares of the Common Stock of Summit Family Restaurants Inc. which
are to be exchanged for certificates representing shares of the Common Stock of
CKE Restaurants, Inc. and cash.
EXCHANGE AGENT:
FIRST INTERSTATE BANK OF CALIFORNIA
TELEPHONE: (800) 522-6645
<TABLE>
<S> <C> <C>
By Mail: By Hand: Overnight Delivery:
First Interstate Bank of California First Interstate Bank of California First Interstate Bank of California
c/o CMSS c/o CMSS c/o CMSS-Reorg. Dept.
P.O. box 817 120 Broadway, 13th Floor 85 Challenger Road
Midtown Station New York, New York 10271 Ridgefield Park, New Jersey 07660
New York, New York 10018
</TABLE>
Ladies and Gentlemen:
In accordance with the Agreement and Plan of Merger and Reorganization,
dated as of November 30, 1995 and amended as of January 24, 1996, as of April 2,
1996 and as of June 5, 1996 (as amended, the "Agreement"), by and among Summit
Family Restaurants Inc. ("Summit"), CKE Restaurants, Inc. ("CKE") and Summit
Merger, Inc., a wholly-owned subsidiary of CKE ("Summit Merger"), the
undersigned, as the registered holder(s) of the certificate(s) representing
Common Stock of Summit described in Box A below (the "Summit Certificate(s)"),
or the assignee of such registered holder(s), hereby surrender(s) such Summit
Certificate(s) in exchange for certificates representing shares of Common Stock
of CKE (the "CKE Common Stock") and cash, on the basis of 0.1043 shares of CKE
Common Stock and cash in the amount of $2.63 (the "Merger Consideration") for
each share of Common Stock of Summit (the "Summit Common Stock") represented by
the Summit Certificate(s) so surrendered.
Please issue one certificate (unless otherwise directed by written
instructions attached hereto) for the shares of CKE Common Stock to which the
undersigned is entitled. Unless otherwise specified in Box B or C below, the
undersigned requests that his or her certificate(s) and check representing the
Merger Consideration to which the undersigned is entitled be issued in the
name(s) and mailed to the address(es) set forth in Box A.
<TABLE>
<S> <C> <C>
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
BOX A: DESCRIPTION OF SUMMIT COMMON STOCK SURRENDERED
- --------------------------------------------------------------------------------------------------------
CERTIFICATE(S) BEING SURRENDERED
NAME(S) AND ADDRESS(ES) OF HOLDER(S) OF RECORD (ATTACH SEPARATE SCHEDULE IF
AS SHOWN ON RECORDS OF SUMMIT* NECESSARY)
- --------------------------------------------------------------------------------------------------------
CERTIFICATE NUMBER OF
NUMBERS SHARES
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
TOTAL SHARES
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
</TABLE>
* IF SHARES ARE HELD JOINTLY, LIST FIRST AND CIRCLE THE NAME OF THE PERSON WHOSE
TAXPAYER IDENTIFICATION NUMBER YOU ENTER IN SUBSTITUTE FORM W-9 IN BOX E
BELOW.
<PAGE> 2
BOX B:
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTION 5)
To be completed ONLY if the certificate(s) representing CKE Common Stock and
check are to be issued in the name(s) of someone other than the person(s) in
whose name(s) the Summit Certificate(s) being surrendered pursuant to this
Letter of Transmittal is (are) registered or to correct the name(s) set forth in
Box A. (Unless otherwise indicated in Box C, the certificate(s) representing the
CKE Common Stock and check will be mailed to the address indicated in Box A.)
Issue the certificate(s) representing CKE Common Stock and check representing
the aggregate Merger Consideration to which the undersigned is entitled in the
name(s) of:
(PLEASE PRINT)
(ATTACH SEPARATE SCHEDULE IF NECESSARY)
NAME:
--------------------------------------------------------------------------
ADDRESS:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
(INCLUDE ZIP CODE)
Taxpayer Identification or
Social Security Number(s) of
Person(s) Named in this Box
-------------------------------------------------
BOX D:
SIGNATURE GUARANTEE
(SEE INSTRUCTION 6)
To be completed in all cases specified in Instructions 5 and 6 herein.
The undersigned hereby guarantees the signature(s) which appear(s) above this
Box D on this Letter of Transmittal.
- --------------------------------------------------------------------------------
(NAME OF GUARANTEEING FIRM)
BY:
-----------------------------------------------------------------------------
(SIGNATURE OF OFFICER)
- --------------------------------------------------------------------------------
(TITLE OF OFFICER SIGNING THIS GUARANTEE)
- --------------------------------------------------------------------------------
(ADDRESS OF GUARANTEEING FIRM AND TELEPHONE NUMBER)
BOX C:
SPECIAL MAILING INSTRUCTIONS
(SEE INSTRUCTION 8)
To be completed ONLY if the certificate(s) representing CKE Common Stock and
check are to be mailed to an address other than indicated in Box A above.
Mail the certificate(s) representing CKE Common Stock and check representing
the aggregate Merger Consideration to which the undersigned is entitled to:
(PLEASE PRINT)
ADDRESS:
------------------------------------------------------------------------
-------------------------------------------------------------------------------
(INCLUDE ZIP CODE)
ATTENTION:
----------------------------------------------------------------------
NOTE: ALL STOCKHOLDERS MUST SIGN IN THE SPACE PROVIDED BELOW
SIGNATURE(S)
Dated: , 199
---------------- ---
SIGN HERE
--------------------------------------------------------------
--------------------------------------------------------------
(SIGNATURE(S) OF HOLDER(S))
Telephone Number
--------------------------------------------------------------
(INCLUDE AREA CODE)
Must be signed above by registered holder(s) exactly as the name(s) appear(s)
on the Summit Certificate(s) as indicated in Box A, or by person(s) authorized
to receive the Merger Consideration to which such holder(s) is (are) entitled.
Signature(s) must be guaranteed in Box D in all cases specified in Instructions
5 and 6. SEE INSTRUCTIONS 2, 5 AND 6.
<PAGE> 3
PLEASE COMPLETE THE SUBSTITUTE FORM W-9 BELOW AND RETURN IT TO FIRST
INTERSTATE BANK OF CALIFORNIA WITH YOUR CERTIFICATES REPRESENTING
SHARES OF SUMMIT COMMON STOCK. SEE INSTRUCTION 3.
*IMPORTANT TAX INFORMATION*
Please be advised that, irrespective of whether you have previously furnished a
taxpayer identification number (social security number for individuals, or
employer identification number for corporations) or the certification on Form
W-9 with respect to dividend payments from Summit, you must again furnish this
number, certified to be correct under penalties of perjury, to assure that
back-up withholding of 31% will not be implemented. Certification should be made
to the Exchange Agent on Substitute Form W-9 in Box E below.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
BOX E:
SUBSTITUTE
FORM W-9
(SEE INSTRUCTION 3)
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
- --------------------------------------------------------------------------------
Part 1 -- PLEASE PROVIDE YOUR
TAXPAYER IDENTIFICATION NUM- ------------------------------
BER (TIN) IN THE BOX AT THE Social Security Number or
RIGHT AND CERTIFY BY SIGNING Employer Identification Number
AND DATING BELOW.
- --------------------------------------------------------------------------------
Part 2 -- Check the following box if you are
waiting for a TIN to be issued to you (see
Certificate of Awaiting Taxpayer Identification
Number below): / /
- --------------------------------------------------------------------------------
CERTIFICATION -- I CERTIFY UNDER PENALTIES OF PERJURY THAT (1) THE
INFORMATION PROVIDED ON THIS FORM IS TRUE, CORRECT AND COMPLETE, AND (2) I
AM NOT SUBJECT TO BACKUP WITHHOLDING BECAUSE I HAVE NOT BEEN NOTIFIED BY THE
INTERNAL REVENUE SERVICE ("IRS") THAT I AM SUBJECT TO BACKUP WITHHOLDING AS
A RESULT OF A FAILURE TO REPORT ALL INTEREST OR DIVIDENDS, OR THE IRS HAS
NOTIFIED ME THAT I AM NO LONGER SUBJECT TO BACKUP WITHHOLDING.
CERTIFICATION INSTRUCTIONS -- You must cross out item (2) above if you have
been notified by the IRS that you are subject to backup withholding because
of under-reporting interest or dividends on your tax return. However, if
after being notified by the IRS that you were subject to backup withholding
you received another notification from the IRS that you are no longer
subject to backup withholding do not cross out item (2).
SIGNATURE Date:
--------------------------------------------- ----------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX
IN PART 2 OF SUBSTITUTE FORM W-9
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Officer,
or (b) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification number within
sixty (60) days, 31% of all reportable payments made to me thereafter will
be withheld until I provide a taxpayer identification number.
- ----------------------------- -------------------------
Signature Date
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 4
INSTRUCTIONS TO LETTER OF TRANSMITTAL
FOR SURRENDERING CERTIFICATES WHICH HERETOFORE REPRESENTED
SHARES OF COMMON STOCK OF SUMMIT FAMILY RESTAURANTS INC.
1. GENERAL. In accordance with the Agreement and Plan of Merger and
Reorganization, dated as of November 30, 1995 and amended as of January 24,
1996, as of April 2, 1996 and as of June 5, 1996 (as amended, the "Agreement"),
by and among Summit Family Restaurants Inc. ("Summit"), CKE Restaurants, Inc.
("CKE") and Summit Merger, Inc., a wholly-owned subsidiary of CKE ("Summit
Merger"), each holder of Common Stock of Summit ("Summit Common Stock") has
become entitled to receive a certificate or certificates representing 0.1043
shares of Common Stock of CKE ("CKE Common Stock") and cash in the amount of
$2.63 for each former share of Summit Common Stock represented by Summit Common
Stock certificate(s) ("Summit Certificate(s)"), as described in the Proxy
Statement/Prospectus of Summit and CKE dated June 10, 1996. The Letter of
Transmittal, or a copy thereof, properly completed and signed, must be used in
connection with all exchanges of Summit Certificate(s) for CKE Common Stock
certificates and cash under the terms of the Agreement. THE METHOD OF DELIVERY
OF SUMMIT CERTIFICATES AND ANY OTHER DOCUMENTS (SEE BELOW) IS AT THE ELECTION
AND RISK OF SURRENDERING SUMMIT STOCKHOLDERS, BUT IF SENT BY MAIL, IT IS
RECOMMENDED THAT REGISTERED MAIL, PROPERLY INSURED, BE USED.Transmit your Summit
Certificate(s) and other required documents to any of the addresses set forth on
the Letter of Transmittal. Delivery will be deemed effective only when actually
received at the office of the Exchange Agent. Delivery of the Letter of
Transmittal to an address other than those set forth on the Letter of
Transmittal will not constitute a valid delivery.
2. SIGNATURES. The signature (or signatures, in the case of any Summit
Certificate(s) owned by two or more joint holders) on the Letter of Transmittal
should correspond exactly with the name(s) of the registered owner(s) as written
on the face of the Summit Certificate(s) unless such Summit Certificate(s) has
(have) been transferred by the registered owner(s), in which event the Letter of
Transmittal should be signed in exactly the same form as the name of the last
transferee indicated on the transfers attached to or endorsed on the Summit
Certificate(s).
When signing as agent, attorney, administrator, executor, guardian,
trustee, or in any other fiduciary or representative capacity, or as an officer
of a corporation on behalf of the corporation, give full title as such. If the
Summit Certificate(s) has (have) been transferred or assigned and (a) new
certificate(s) has (have) not yet been received in the name of the transferee or
assignee, the Letter of Transmittal must be signed by the transferee or
assignor.
The Summit Certificate(s), if registered in the name(s) of the person(s)
signing the Letter of Transmittal, need not be endorsed or accompanied by any
instrument of assignment or transfer other than the Letter of Transmittal.
3. 31% BACK-UP WITHHOLDING. Under current federal income tax law, a
holder who surrenders shares for exchange is required to provide the Exchange
Agent with his or her correct taxpayer identification number ("TIN") (i.e.,
social security number for individuals or employer identification number for
corporations) on Form W-9. If the Exchange Agent is not provided with the
correct TIN, the holder may be subject to a $50 penalty imposed by the Internal
Revenue Service. In addition, delivery to such holder of the check for the
payment of the cash portion of the Merger Consideration and dividends on CKE
Common Stock will be subject to 31% back-up withholding unless the Form W-9 is
received by the Exchange Agent. See the enclosed Substitute Form W-9 (Box E) for
additional instructions.
Certain holders, including, among others, corporations and certain foreign
individuals, are not subject to these back-up withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, that holder must submit a statement, signed under penalty of perjury,
to the Exchange Agent (which form the Exchange Agent will provide upon request)
attesting to the individual's exempt status.
If back-up withholding applies, the Exchange Agent is required to withhold
31% of the payment made to the holder representing the cash portion of the
Merger Consideration and dividends on CKE Common Stock, if any. Back-up
withholding is not an additional tax. Rather, the tax liability of persons
subject to back-up withholding will be reduced by the amount of tax withheld. If
withholding results in an overpayment of taxes, a refund may be obtained from
the Internal Revenue Service.
CKE reserves the right in its sole discretion to direct the Exchange Agent
to take whatever steps are necessary to comply with CKE's obligations regarding
back-up withholding.
<PAGE> 5
4. MUTILATED, LOST, STOLEN OR DESTROYED CERTIFICATES. If any Summit
Certificate(s) has (have) been mutilated, lost, stolen or destroyed, you should
contact the Exchange Agent at 1-800-522-6645 for further instructions. This
Letter of Transmittal cannot be processed and you will not receive certificates
representing CKE Common Stock and the check representing the aggregate Merger
Consideration to which you may be entitled unless you submit either (i) the
certificate(s) representing Summit Common Stock or (ii) a surety bond in form
satisfactory to the Exchange Agent and CKE, indemnifying the Exchange Agent and
CKE against any liabilities that may arise from delivering the Merger
Consideration without the actual surrender of certificate(s) representing Summit
Common Stock. The Exchange Agent will send you further instructions as to
obtaining any surety bond which may be required to be posted.
THE INSTRUCTIONS IN ITEMS 5 AND 6 BELOW NEED ONLY BE FOLLOWED IF THE
REGISTERED OWNER DESIRES TO MAKE A CHANGE OF OWNERSHIP OR A CORRECTION OF OR
CHANGE IN THE NAME.
5. TRANSFER INSTRUCTIONS.
(a) Change of Ownership. If the certificates representing CKE Common
Stock and the check representing the Merger Consideration are to be issued in
the name of someone other than the registered owner(s) of the Summit
Certificate(s) being surrendered, please complete the Special Issuance
Instructions in Box B on the Letter of Transmittal and be guided by the
following:
(i) Endorsement. The Summit Certificate(s) being surrendered must
be properly endorsed (or accompanied by appropriate stock powers properly
executed) by the registered owner(s) of such Summit Certificate(s) to the person
who is to receive the certificates representing CKE Common Stock and check. The
signature of the registered owner(s) on the endorsement or stock powers must
correspond exactly with the name as written upon the face of the Summit
Certificate(s) being surrendered and must be guaranteed as described in
Instruction 6.
(ii) Transfer Taxes. In the event that any transfer or other taxes
may become payable by reason of the issuance of any certificate(s) representing
CKE Common Stock in any name other than that of the registered owner(s) of the
Summit Certificate(s) being surrendered, the transferee or assignee must pay
such tax to the Exchange Agent or must establish to the satisfaction of the
Exchange Agent that such tax has been paid or is not payable.
(b) Correction of or Change in Name. For a correction of name or for a
change in name which does not involve a change of ownership, please complete the
Special Issuance Instructions in Box B on the Letter of Transmittal and proceed
as follows: for a change in name by marriage, etc., the Summit Certificate(s)
being surrendered should be endorsed, e.g., "Mary Doe, now by marriage Mary
Jones," with the endorsement signature guaranteed as described in Instruction 6.
For a correction in name, the Summit Certificate(s) being surrendered should be
endorsed, e.g., "Samuel J. Snow, incorrectly inscribed as S.J. Snow," with the
endorsement signature guaranteed as described in Instruction 6.
6. SIGNATURE GUARANTEE. If the certificate(s) representing CKE Common
Stock and the check representing the Merger Consideration are to be issued in a
name different from that appearing on the face of the surrendered Summit
Certificate(s), the Summit Certificate(s) must be properly endorsed by the
registered owner(s) thereof or accompanied by appropriate stock powers properly
executed, and the signature(s) to the endorsement or on the stock power must be
guaranteed by an eligible institution such as a bank, credit union or broker
which is a member of or a participant in a signature medallion program.
7. SUPPORTING EVIDENCE. If the Letter of Transmittal, an endorsement of
the surrendered Summit Certificate(s) or a stock power is executed by a person
(other than the registered owner) as an agent, attorney, administrator,
executor, guardian, trustee, or in any other fiduciary or representative
capacity, or by an officer of a corporation on behalf of the corporation, there
must be submitted with the Letter of Transmittal the Summit Certificate(s) being
surrendered and any stock powers and documentary evidence of appointment and
authority to act in such capacity (including court orders where necessary), as
well as evidence of the authority of the person making such execution to assign,
sell or transfer shares. Such documentary evidence of authority must be in form
satisfactory to the Exchange Agent.
<PAGE> 6
8. SPECIAL MAILING INSTRUCTIONS. Unless instructions to the contrary are
given in the Special Mailing Instructions in Box C on the Letter of Transmittal,
any certificate(s) representing CKE Common Stock and the check representing the
Merger Consideration to be issued upon surrender of Summit Certificate(s) in
accordance with the Letter of Transmittal will be mailed to the address shown in
Box A.
9. ADDITIONAL COPIES. Additional copies of the Letter of Transmittal may
be obtained from the Exchange Agent.
10. INQUIRIES. All inquiries with respect to the surrender of Summit
Certificate(s) should be made directly to the Exchange Agent at the addresses or
telephone numbers on the first page.
