<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 12, 1998
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
KOO KOO ROO ENTERPRISES, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 33-0197361
(State or Other Jurisdiction of (IRS Employer Identification No.)
Incorporation or Organization)
18831 VON KARMAN AVENUE
IRVINE, CALIFORNIA 92612
(Address, Including Zip Code, of Principal Executive Offices)
KOO KOO ROO ENTERPRISES, INC. 1998 STOCK INCENTIVE PLAN
FAMILY RESTAURANTS, INC. 1994 INCENTIVE STOCK OPTION PLAN
1997 STOCK OPTION PLAN FOR RESTAURANT EMPLOYEES AND MANAGEMENT OF
KOO KOO ROO, INC.
KOO KOO ROO, INC. STOCK AWARDS PLAN, AS AMENDED
NONQUALIFIED STOCK OPTION AGREEMENT DATED MAY 19, 1997 FOR 75,000 SHARES
NONQUALIFIED STOCK OPTION AGREEMENT DATED MAY 19, 1997 FOR 100,000 SHARES
NONQUALIFIED STOCK OPTION AGREEMENT DATED MAY 19, 1997 FOR 100,000 SHARES
NONQUALIFIED STOCK OPTION AGREEMENT FOR JAMES SMITH FOR 100,000 SHARES
NONQUALIFIED STOCK OPTION AGREEMENT DATED MAY 19, 1997 FOR 40,000 SHARES
KOO KOO ROO ENTERPRISES, INC. NONQUALIFIED STOCK OPTION AGREEMENT FOR ANNE
EHRINGER
(Full Title of the Plans)
TODD E. DOYLE, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
FAMILY RESTAURANTS, INC.
18831 VON KARMAN AVENUE
IRVINE, CALIFORNIA 92612
(Name, Address, Including Zip Code, and Telephone Number of Agent for Service)
-----------------------
COPY TO:
MICHAEL A. WORONOFF, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM
300 SOUTH GRAND AVENUE
SUITE 3400
LOS ANGELES, CALIFORNIA 90071
-----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Amount to be Proposed Maximum Offering Proposed Maximum Aggre- Amount of Registration
Title of Securities to be Registered Registered Price Per Share gate Offering Price (1) Fee (1)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 27,177,921 (1) $30,470,469.70 $8,471
$0.01 per share.
====================================================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee pursuant
to (a) Rule 457(c) under the Securities Act of 1933, as amended (the
"Securities Act"), on the basis of the average of the high and low sale
prices of the common stock of Koo Koo Roo Enterprises, Inc., par value $.01
per share (the "Common Stock") on the Nasdaq National Market on November 9,
1998, which was $0.875 and (b) Rule 457(h) under the Securities Act, on the
basis of the exercise prices of the 19,298,473 options already granted.
<PAGE>
(2) Plus such additional number of shares of Common Stock as may be issuable
pursuant to the antidilution provisions of the Koo Koo Roo Enterprises, Inc.
1998 Stock Incentive Plan, the Family Restaurants, Inc. 1994 Incentive Stock
Option Plan, the 1997 Stock Option Plan for Restaurant Employees and
Management of Koo Koo Roo, Inc., the Koo Koo Roo, Inc. Stock Awards Plan, as
amended, the Nonqualified Stock Option Agreement Dated May 19, 1997 for
75,000 Shares, the Nonqualified Stock Option Agreement Dated May 19, 1997
for 100,000 Shares, the Nonqualified Stock Option Agreement Dated May 19,
1997 for 100,000 Shares, Nonqualified Stock Option Agreement for James Smith
for 100,000 Shares, Nonqualified Stock Option Agreement Dated May 19, 1997
for 40,000 Shares and the Koo Koo Roo Enterprises, Inc. Nonqualified Stock
Option Agreement for Anne Ehringer (together, the "Plans").
Page 2
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
have been or will be sent or given to employees as specified by Rule 428(b)(1)
under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") by the registrant, Koo Koo Roo Enterprises, Inc., a Delaware
corporation (the "Company"), formerly known as Family Restaurants, Inc.,
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act")
or the Securities Act, are incorporated herein by reference:
(a) Annual Report on Form 10-K for the year ended December 28, 1997;
(b) Quarterly Reports on Form 10-Q for the quarterly periods ended
March 29, 1998 and June 28, 1998;
(c) Current Reports on Form 8-K dated June 16, 1998 and November 2,
1998; and
(d) The description of Common Stock included in the Company's
Registration Statement on Amendment No. 3 to Form S-4 filed
September 14, 1998, pursuant to Section 5 of the Securities Act,
including any amendment or report filed for the purpose of
updating such information.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents. Any statement contained herein or in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this registration statement to the extent that a
statement contained herein or in any other subsequently filed document that is
or is deemed to be incorporated
Page 3
<PAGE>
by reference herein modifies or supersedes such previous statement. Any
statement so modified or superseded shall not be deemed to constitute a part of
this registration statement, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") permits a
Delaware corporation to indemnify officers, directors, employees and agents for
actions taken in good faith and in a manner they reasonably believed to be in,
or not opposed to, the best interests of the corporation, and with respect to
any criminal action, which they had no reasonable cause to believe was unlawful.
The DGCL provides that a corporation may pay expenses (including attorneys'
fees) incurred by an officer or director in defending any civil, criminal,
administrative or investigative action (upon receipt of a written undertaking to
reimburse the corporation if indemnification is not appropriate), and must
reimburse a successful defendant for expenses, including attorney's fees,
actually and reasonably incurred, and permits a corporation to purchase and
maintain liability insurance for its directors and officers. The DGCL provides
that indemnification may be made for any claim, issue or matter as to which a
person has been adjudged by a court of competent jurisdiction, after exhaustion
of all appeals therefrom, to be liable to the corporation, unless and only to
the extent a court determines that the person is entitled to indemnity for such
expenses as the court deems proper.
The Company's Fifth Restated Certificate of Incorporation (the "Certificate
of Incorporation") and its Amended and Restated Bylaws (the "Bylaws") provide,
among other things, that, to the fullest extent authorized by the DGCL, the
Company may indemnify each person who is or has served as a director or officer
of the Company or any predecessor of the Company, or any other enterprise at the
request of the Company or of any predecessor of the Company, against expenses
(including attorneys' fees), judgments, fines, settlements, and other amounts
actually and reasonably incurred in connection with any proceeding, arising by
reason of the fact that such person is or was an agent of the Company. The
Company may also indemnify each of its employees and agents against expenses
(including attorneys' fees), judgments, fines, settlements, and other amounts
actually and reasonably incurred in connection with any proceeding arising by
reason of the fact that such person is or was an agent of the Company.
Page 4
<PAGE>
The DGCL permits a Delaware corporation to include a provision in its
certificate of incorporation eliminating or limiting the personal liability of
any director to the corporation or its stockholders for monetary damages for a
breach of the director's fiduciary duty as a director, except for liability (i)
for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the DGCL, which concerns unlawful payments of dividends, stock purchases or
redemptions or (iv) for any transaction from which the director derived an
improper personal benefit. The Company's Certificate of Incorporation contains
provisions limiting the liability of its directors, to the fullest extent
currently permitted by the DGCL for monetary damages for breach of their
fiduciary duty as directors.
While these provisions provide directors with protection from awards for
monetary damages for breaches of their duty of care, they do not eliminate such
duty. Accordingly, these provisions will have no effect on the availability of
equitable remedies such as an injunction or rescission based on a director's
breach of his or her duty of care.
The Company has purchased insurance which purports to insure the Company
against certain costs of indemnification which may be incurred by it pursuant to
the Company's Certificate of Incorporation and Bylaws and to insure the officers
and directors of the Company and its subsidiary companies, against certain
liabilities incurred by them in the discharge of their functions as such
officers and directors except for liabilities resulting from their own
malfeasance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
4.1 Fifth Restated Certificate of Incorporation of the Company.
4.2 Certificate of Amendment to the Fifth Restated Certificate
of Incorporation of the Company.
4.3 Amended and Restated Bylaws of the Company.
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom regarding
the legality of the securities being registered.
23.1 Consent of KPMG Peat Marwick LLP
</TABLE>
Page 5
<PAGE>
<TABLE>
<S> <C>
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom (included in
their opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this
registration statement).
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant 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;
(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 in
crease 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 and 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 percent 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
- -------- -------
registration statement is on Form S-3, Form S-8 or Form F-3, and 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
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
Page 6
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act 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 Commission such indemnification is
against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
Page 7
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Kevin S. Relyea, Robert T. Trebing, Jr. and Todd E. Doyle and each of them, his
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this registration statement filed with respect to the Koo Koo Roo
Enterprises, Inc. 1998 Stock Incentive Plan, the Family Restaurants, Inc. 1994
Incentive Stock Option Plan, the 1997 Stock Option Plan for Restaurant Employees
and Management of Koo Koo Roo, Inc., the Koo Koo Roo, Inc. Stock Awards Plan, as
amended, Nonqualified Stock Option Agreement Dated May 19, 1997 for 75,000
Shares, Nonqualified Stock Option Agreement Dated May 19, 1997 for 100,000
Shares, Nonqualified Stock Option Agreement Dated May 19, 1997 for 100,000
Shares, Nonqualified Stock Option Agreement for James Smith for 100,000 Shares,
Nonqualified Stock Option Agreement Dated May 19, 1997 for 40,000 Shares and
the Koo Koo Roo Enterprises, Inc. Nonqualified Stock Option Agreement for Anne
Ehringer and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Commission, and to take such actions in, and file
with the appropriate authorities in, whatever states said attorneys-in-fact and
agents, and each of them, shall determine, such applications, statements,
consents and other documents as may be necessary to register securities of the
Company for sale, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof and the
registrant hereby confers like authority on its behalf.
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
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 Irvine, State of California, on this 12th day of
November, 1998.
KOO KOO ROO ENTERPRISES, INC.
By: /s/ Todd E. Doyle
-----------------------------
Todd E. Doyle
Vice President, Secretary and
and General Counsel
Page 8
<PAGE>
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below by the following persons in the capacities
indicated, on November 12, 1998.
<TABLE>
<CAPTION>
<S> <C>
(i) Principal Executive Officer
/s/ Kevin S. Relyea
----------------------------- President and Chief Executive
Kevin S. Relyea Officer
(Attorney-in-Fact)
(ii) Principal Financial and Accounting
Officer
/s/ Robert T. Trebing, Jr.
----------------------------- Executive Vice President and
Robert T. Trebing, Jr. Chief Financial Officer
(Attorney-in-Fact)
(iii) A Majority of the Board of Directors
/s/ Lee A. Iacocca
----------------------------- Director
Lee A. Iacocca
/s/ A. William Allen, III
----------------------------- Director
A. William Allen, III
/s/ Peter P. Copses
----------------------------- Director
Peter P. Copses
/s/ David B. Kaplan
----------------------------- Director
David B. Kaplan
/s/ Antony P. Ressler
----------------------------- Director
Antony P. Ressler
/s/ Kevin S. Relyea
----------------------------- Director
Kevin S. Relyea
</TABLE>
Page 9
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 Fifth Restated Certificate of Incorporation of the Company.
4.2 Certificate of Amendment to the Fifth Restated Certificate of
Incorporation of the Company.
4.3 Amended and Restated Bylaws of the Company.
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom regarding the
legality of the securities being registered.
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom (included in their
opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this
registration statement).
</TABLE>
Page 10
<PAGE>
EXHIBIT 4.1
FIFTH RESTATED
CERTIFICATE OF INCORPORATION
OF
FAMILY RESTAURANTS, INC.
The undersigned, Todd E. Doyle certifies that he is the Vice President
and General Counsel of Family Restaurants, Inc., a corporation organized and
existing under the laws of the State of Delaware (the "Corporation"), and does
hereby further certify as follows:
(1) The name of the Corporation is Family Restaurants, Inc.
(2) The name under which the Corporation was originally incorporated
was The Restaurant Enterprises Group, Inc. and the original Certificate of
Incorporation of the Corporation was filed with the Secretary of State of
the State of Delaware on September 15, 1986.
(3) This Fifth Restated Certificate of Incorporation was duly adopted
by in accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware.
(4) The text of the Restated Certificate of Incorporation of the
Corporation as amended hereby is restated to read in its entirety, as
follows:
FIRST: The name of the Corporation is Family Restaurants, Inc.,
-----
(hereinafter, the "Corporation").
SECOND: The address of the registered office of the Corporation in
------
the State of Delaware is 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at that address is The
Corporation Trust Company.
<PAGE>
THIRD: The purpose of the Corporation is to engage in any lawful act
-----
or activity for which a corporation may be organized under the General
Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware
Code (the "GCL").
FOURTH: The total number of shares of stock which the Corporation
------
shall have authority to issue is 300,000,000 shares of Common Stock, each having
a par value of one cent ($.01), and 50,000,000 shares of Preferred Stock, each
having a par value of one cent ($.01).
The Board of Directors is expressly authorized to provide for the
issuance of all or any shares of the Preferred Stock in one or more classes or
series, and to fix for each such class or series such voting powers, full or
limited, or no voting powers, and such distinctive designations, preferences and
relative, participating, optional or other special rights and such
qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions adopted by the Board of Directors
providing for the issuance of such class or series and as may be permitted by
the GCL, including, without limitation, the authority to provide that any such
class or series may be (i) subject to redemption at such time or times and at
such price or prices; (ii) entitled to receive dividends (which may be
cumulative or non-cumulative) at such rates, on such conditions, and at such
times, and payable in preference to, or in such relation to, the dividends
payable on any other class or classes or any other series; (iii) entitled to
such rights upon the dissolution of, or upon any distribution of the assets of,
the Corporation; or (iv) convertible into, or exchangeable for, shares of any
other class or classes of stock, or of any other series of the same or any other
class or classes of stock, of the Corporation at such price or prices or at such
rates of exchange and with such adjustments; all as may be stated in such
resolution or resolutions.
FIFTH: The following provisions are inserted for the management of
-----
the business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(1) The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors.
(2) The directors shall have concurrent power with the stockholders
to make, alter, amend, change, add to or repeal the By-Laws of the
Corporation.
2
<PAGE>
(3) The number of directors of the Corporation shall be as from time
to time fixed by, or in the manner provided in, the By-Laws of the
Corporation. Election of directors need not be by written ballot unless
the By-Laws so provide.
(4) No director shall be personally liable to the Corporation or any
of its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) pursuant to Section 174 of the GCL or (iv) for any
transaction from which the director derived an improper personal benefit.
Any repeal or modification of this Article Fifth by the stockholders of the
Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or
modification with respect to acts or omissions occurring prior to such
repeal or modification.
(5) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered
to exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, subject, nevertheless, to the
provisions of the GCL, this Certificate of Incorporation, and any By-Laws
adopted by the stockholders; provided, however, that no By-Laws hereafter
adopted by the stockholders shall invalidate any prior act of the directors
which would have been valid if such By-Laws had not been adopted.
(6) The Corporation shall indemnify its directors and officers to the
fullest extent authorized or permitted by law, as now or hereafter in
effect, and such right to indemnification shall continue as to a person who
has ceased to be a director or officer of the Corporation and shall inure
to the benefit of his or her heirs, executors and personal and legal
representatives; provided, however, that, except for proceedings to enforce
-------- -------
rights to indemnification, the Corporation shall not be obligated to
indemnify any director or officer (or his or her heirs, executors or
personal or legal representatives) in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof)
was authorized or consented to by the Board of Directors. The
3
<PAGE>
right to indemnification conferred by this Article Fifth shall include the
right to be paid by the Corporation the expenses incurred in defending or
otherwise participating in any proceeding in advance of its final
disposition.
The Corporation may, to the extent authorized from time to time
by the Board of Directors, provide rights to indemnification and to the
advancement of expenses to employees and agents of the Corporation similar
to those conferred in this Article Fifth to directors and officers of the
Corporation.
The rights to indemnification and to the advance of expenses
conferred in this Article Fifth shall not be exclusive of any other right
which any person may have or hereafter acquire under this Fifth Restated
Certificate of Incorporation, the By-Laws of the Corporation, any statute,
agreement, vote of stockholders or disinterested directors or otherwise.
Any repeal or modification of this Article Fifth by the
stockholders of the Corporation shall not adversely affect any rights to
indemnification and to the advancement of expenses of a director or officer
of the Corporation existing at the time of such repeal or modification with
respect to any acts or omissions occurring prior to such repeal or
modification.
SIXTH: Meetings of stockholders may be held within or without the
-----
State of Delaware, as the By-Laws may provide. The books of the Corporation may
be kept (subject to any provision contained in the GCL) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the Corporation.
SEVENTH: The Corporation reserves the right to amend, alter, change
-------
or repeal any provision contained in this Fifth Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
EIGHTH: In furtherance and not in limitation of the powers conferred
------
upon it by the laws of the State of Delaware, the Board of Directors shall have
the power to adopt, amend, alter or repeal the Corporation's By-Laws.
4
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Fifth Restated
Certificate of Incorporation to be executed in its corporate name this 29th
day of October, 1998.
FAMILY RESTAURANTS, INC.
/s/ Todd E. Doyle
----------------------------------
Todd E. Doyle
Vice President and General Counsel
<PAGE>
EXHIBIT 4.2
CERTIFICATE OF AMENDMENT
TO THE FIFTH RESTATED
CERTIFICATE OF INCORPORATION
OF
FAMILY RESTAURANTS, INC.
_________________________________________
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
_________________________________________
Family Restaurants, Inc., a Delaware corporation (hereinafter called
the "Corporation"), does hereby certify as follows:
FIRST: Article FIRST of the Corporation's Fifth Restated Certificate
-----
of Incorporation is hereby amended to read in its entirety as set forth below:
FIRST: The name of the corporation is Koo Koo Roo Enterprises, Inc.
-----
(hereinafter the "Corporation").
SECOND: The foregoing amendment was duly adopted in accordance with
------
Section 242 of the General Corporation Law of the State of Delaware.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
duly executed in its corporate name this 30th day of October, 1998.
FAMILY RESTAURANTS, INC.
/s/ Todd E. Doyle
-------------------------------------
Todd E. Doyle
Vice President and General Counsel
<PAGE>
EXHIBIT 4.3
AMENDED AND RESTATED
BY-LAWS
of
FAMILY RESTAURANTS, INC.
A Delaware Corporation
Effective October 30, 1998
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<S> <C>
ARTICLE I - OFFICES................................................................... 2
Section 1.1 Registered Office.............................................. 2
Section 1.2 Other Offices.................................................. 2
ARTICLE II - MEETINGS OF STOCKHOLDERS................................................. 2
Section 2.1 Place of Meetings.............................................. 2
Section 2.2 Annual Meetings................................................ 2
Section 2.3 Nomination of Directors........................................ 4
Section 2.4 Special Meetings............................................... 5
Section 2.5 Conduct of Meetings............................................ 6
Section 2.6 Notice......................................................... 6
Section 2.7 Adjournments................................................... 6
Section 2.8 Quorum......................................................... 7
Section 2.9 Proxies........................................................ 7
Section 2.10 Voting......................................................... 8
Section 2.11 Consent of Stockholders in Lieu of Meeting..................... 8
Section 2.12 List of Stockholders Entitled to Vote.......................... 9
Section 2.13 Stock Ledger................................................... 9
Section 2.14 Inspectors of Election......................................... 9
Section 2.15 Record Date.................................................... 10
ARTICLE III - DIRECTORS............................................................... 11
Section 3.1 Number and Election of Directors............................... 11
Section 3.2 Vacancies...................................................... 11
Section 3.3 Duties and Powers.............................................. 11
Section 3.4 Organization................................................... 11
Section 3.5 Meetings....................................................... 12
Section 3.6 Quorum......................................................... 12
Section 3.7 Actions of Board............................................... 12
Section 3.8 Meetings by Means of Conference Telephone...................... 12
Section 3.9 Committees..................................................... 13
Section 3.10 Compensation................................................... 13
Section 3.11 Interested Directors........................................... 13
ARTICLE IV - OFFICERS................................................................. 14
Section 4.1 General........................................................ 14
Section 4.2 Election....................................................... 14
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
Page
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<S> <C>
Section 4.3 Voting Securities Owned by the Corporation..................... 14
Section 4.4 Chairman of the Board of Directors............................. 15
Section 4.5 President...................................................... 15
Section 4.6 Vice Presidents................................................ 16
Section 4.7 Secretary...................................................... 16
Section 4.8 Treasurer...................................................... 16
Section 4.9 Assistant Secretaries.......................................... 17
Section 4.10 Assistant Treasurers........................................... 17
Section 4.11 Other Officers................................................. 17
ARTICLE V - STOCK..................................................................... 18
Section 5.1 Form of Certificates........................................... 18
Section 5.2 Signatures..................................................... 18
Section 5.3 Lost, Destroyed, Stolen or Mutilated Certificates.............. 18
Section 5.4 Transfers...................................................... 18
Section 5.5 Transfer and Registry Agents................................... 19
Section 5.6 Beneficial Owners.............................................. 19
ARTICLE VI - NOTICES.................................................................. 19
Section 6.1 Notices........................................................ 19
Section 6.2 Waivers of Notice.............................................. 19
ARTICLE VII - GENERAL PROVISIONS...................................................... 20
Section 7.1 Dividends...................................................... 20
Section 7.2 Disbursements.................................................. 20
Section 7.3 Fiscal Year.................................................... 20
Section 7.4 Corporate Seal................................................. 20
ARTICLE VIII - INDEMNIFICATION........................................................ 21
Section 8.1 Power to Indemnify in Actions, Suits or Proceedings
Other than Those by or in the Right of the Corporation......... 21
Section 8.2 Power to Indemnify in Actions, Suits or Proceedings
by or in the Right of the Corporation.......................... 21
Section 8.3 Authorization of Indemnification............................... 22
Section 8.4 Good Faith Defined............................................. 22
Section 8.5 Indemnification by a Court..................................... 23
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
Page
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<S> <C>
Section 8.6 Expenses Payable in Advance.................................... 23
Section 8.7 Nonexclusivity of Indemnification and
Advancement of Expenses........................................ 23
Section 8.8 Insurance...................................................... 24
Section 8.9 Certain Definitions............................................ 24
Section 8.10 Survival of Indemnification and Advancement of Expenses........ 24
Section 8.11 Limitation on Indemnification.................................. 24
Section 8.12 Indemnification of Employees and Agents........................ 25
ARTICLE IX - AMENDMENTS............................................................... 25
Section 9.1 Amendments..................................................... 25
Section 9.2 Entire Board of Directors...................................... 25
</TABLE>
iii
<PAGE>
AMENDED AND RESTATED
BY-LAWS
OF
FAMILY RESTAURANTS, INC.
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
-------
Section 1.1 Registered Office. The registered office of the
-----------------
Corporation shall be in the City of Wilmington, County of New Castle, State of
Delaware.
Section 1.2 Other Offices. The Corporation may also have offices at
-------------
such other places, both within and without the State of Delaware, as the Board
of Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
------------------------
Section 2.1 Place of Meetings. Meetings of the stockholders for the
-----------------
election of directors or for any other purpose shall be held at such time and
place, either within or without the State of Delaware, as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2.2 Annual Meetings. The Annual Meetings of Stockholders for
---------------
the election of directors shall be held on such date and at such time as shall
be designated from time to time by the Board of Directors.
No business may be transacted at an Annual Meeting of Stockholders,
other than business that is either (a) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of Directors
(or any duly authorized committee thereof), (b) otherwise properly brought
before the annual meeting by or at the direction of the Board of Directors (or
any duly authorized committee
2
<PAGE>
thereof) or (c) otherwise properly brought before the annual meeting by any
stockholder of the Company (i) who is a stockholder of record on the date of the
giving of the notice provided for in this Section 2.2 and on the record date for
the determination of stockholders entitled to vote at such annual meeting and
(ii) who complies with the notice procedures set forth in this Section 2.2.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary of
the Company.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Company not less than sixty (60) days nor more than ninety (90) days prior to
the anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual meeting is
called for a date that is not within thirty (30) days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth (10th) day following
the day on which such notice of the date of the annual meeting was mailed or
such public disclosure of the date of the annual meeting was made, whichever
first occurs.
To be in proper written form, a stockholder's notice to the Secretary
must set forth as to each matter such stockholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (ii) the name and record address of such stockholder, (iii) the
class or series and number of shares of capital stock of the Company which are
owned beneficially or of record by such stockholder, (iv) a description of all
arrangements or understandings between such stockholder and any other person or
persons (including their names) in connection with the proposal of such business
by such stockholder and any material interest of such stockholder in such
business and (v) a representation that such stockholder intends to appear in
person or by proxy at the annual meeting to bring such business before the
meeting.
No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 2.2; provided, however, that, once business
has been properly brought before the annual meeting in accordance with such
procedures, nothing in this Section 2.2 shall be deemed to preclude discussion
by any stockholder of any such business. If the Chairman of an annual meeting
determines that business was not
3
<PAGE>
properly brought before the annual meeting in accordance with the foregoing
procedures, the Chairman shall declare to the meeting that the business was not
properly brought before the meeting and such business shall not be transacted.
Section 2.3 Nomination of Directors. Only persons who are nominated
-----------------------
in accordance with the following procedures shall be eligible for election as
directors of the Company, except as may be otherwise provided in the Certificate
of Incorporation with respect to the right of holders of preferred stock of the
Corporation to nominate and elect a specified number of directors in certain
circumstances. Nominations of persons for election to the Board of Directors may
be made at any annual meeting of stockholders, or at any special meeting of
stockholders called for the purpose of electing directors, (a) by or at the
direction of the Board of Directors (or any duly authorized committee thereof)
or (b) by any stockholder of the Company (i) who is a stockholder of record on
the date of the giving of the notice provided for in this Section 2.3 and on the
record date for the determination of stockholders entitled to vote at such
meeting and (ii) who complies with the notice procedures set forth in this
Section 2.3.
In addition to any other applicable requirements, for a nomination to
be made by a stockholder, such stockholder must have given timely notice thereof
in proper written form to the Secretary of the Company.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Company (a) in the case of an annual meeting, not less than sixty (60) days nor
more than ninety (90) days prior to the anniversary date of the immediately
preceding annual meeting of stockholders; provided, however, that in the event
that the annual meeting is called for a date that is not within thirty (30) days
before or after such anniversary date, notice by the stockholder in order to be
timely must be so received not later than the close of business on the tenth
(10th) day following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure of the date of the annual meeting
was made, whichever first occurs; and (b) in the case of a special meeting of
stockholders called for the purpose of electing directors, not later than the
close of business on the tenth (10th) day following the day on which notice of
the date of the special meeting was mailed or public disclosure of the date of
the special meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary
must set forth (a) as to each person whom the stockholder proposes to nominate
for election as a director (i) the name, age, business address and residence
address of the person, (ii)
4
<PAGE>
the principal occupation or employment of the person, (iii) the class or series
and number of shares of capital stock of the Company which are owned
beneficially or of record by the person and (iv) any other information relating
to the person that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations of proxies
for election of directors pursuant to Section 14 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder; and (b) as to the stockholder giving the notice (i) the
name and record address of such stockholder, (ii) the class or series and number
of shares of capital stock of the Company which are owned beneficially or of
record by such stockholder, (iii) a description of all arrangements or
understandings between such stockholder and each proposed nominee and any other
person or persons (including their names) pursuant to which the nomination(s)
are to be made by such stockholder, (iv) a representation that such stockholder
intends to appear in person or by proxy at the meeting to nominate the persons
named in its notice and (v) any other information relating to such stockholder
that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. Such notice must be accompanied by a written
consent of each proposed nominee to being named as a nominee and to serve as a
director if elected.
No person shall be eligible for election as a director of the Company
unless nominated in accordance with the procedures set forth in this Section
2.3. If the Chairman of the meeting determines that a nomination was not made in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the nomination was defective and such defective nomination shall be
disregarded.
Section 2.4 Special Meetings. Unless otherwise required by law or by
----------------
the certificate of incorporation of the Corporation, as amended and restated
from time to time (the "Certificate of Incorporation"), Special Meetings of
Stockholders, for any purpose or purposes, may be called by either (i) the
Chairman of the Board of Directors, (ii) the President, (iii) any Vice
President, (iv) the Secretary or (v) any Assistant Secretary, and shall be
called by any such officer at the request in writing of (i) the Board of
Directors, (ii) a committee of the Board of Directors that has been duly
designated by the Board of Directors and whose powers and authority include the
power to call such meetings or (iii) stockholders owning a majority of the
capital stock of the Corporation issued and outstanding and entitled to vote.
Such request shall state the purpose or purposes of the proposed meeting. At a
Special Meeting of the Stockholders,
5
<PAGE>
only such business shall be conducted as shall be specified in the notice of
meeting (or any supplement thereto).
Section 2.5 Conduct of Meetings. The Board of Directors of the
-------------------
Corporation may adopt by resolution such rules and regulations for the conduct
of the meeting of the stockholders as it shall deem appropriate. Except to the
extent inconsistent with such rules and regulations as adopted by the Board of
Directors, the chairman of any meeting of the stockholders shall have the right
and authority to prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of such chairman, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures, whether adopted
by the Board of Directors or prescribed by the chairman of the meeting, may
include, without limitation, the following: (i) the establishment of an agenda
or order of business for the meeting; (ii) the determination of when the polls
shall open and close for any given matter to be voted on at the meeting; (iii)
rules and procedures for maintaining order at the meeting and the safety of
those present; (iv) limitations on attendance at or participation in the meeting
to stockholders of record of the corporation, their duly authorized and
constituted proxies or such other persons as the chairman of the meeting shall
determine; (v) restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (vi) limitations on the time allotted to questions or
comments by participants.
Section 2.6 Notice. Whenever stockholders are required or permitted
------
to take any action at a meeting, a written notice of the meeting shall be given
which shall state the place, date and hour of the meeting and, in the case of a
special meeting, the purpose or purposes for which the meeting is called.
Unless otherwise required by law, the written notice of any meeting shall be
given not less than ten nor more than sixty days before the date of the meeting
to each stockholder entitled to vote at such meeting.
Section 2.7 Adjournments. Any meeting of the stockholders may be
------------
adjourned from time to time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting, the Corporation may transact any business which might have
been transacted at the original meeting. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
6
<PAGE>
Section 2.8 Quorum. Except as otherwise required by law or by the
------
Certificate of Incorporation, the holders of a majority of the capital stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. A quorum, once established, shall
not be broken by the withdrawal of enough votes to leave less than a quorum.
If, however, such quorum shall not be present or represented at any meeting of
the stockholders, the stockholders entitled to vote thereat, present in person
or represented by proxy, shall have power to adjourn the meeting from time to
time, in the manner provided by Section 2.7, until a quorum shall be present or
represented.
Section 2.9 Proxies. Any stockholder entitled to vote may do so in
-------
person or by his or her proxy appointed by an instrument in writing subscribed
by such stockholder or by his or her attorney thereunto authorized, delivered to
the Secretary of the meeting; provided, however, that no proxy shall be voted or
-------- -------
acted upon after three years from its date, unless said proxy provides for a
longer period. Without limiting the manner in which a stockholder may authorize
another person or persons to act for him or her as proxy, either of the
following shall constitute a valid means by which a stockholder may grant such
authority:
(1) A stockholder may execute a writing authorizing another
person or persons to act for him or her as proxy. Execution may be
accomplished by the stockholder or his or her authorized officer, director,
employee or agent signing such writing or causing his or her signature to
be affixed to such writing by any reasonable means, including, but not
limited to, by facsimile signature.
(2) A stockholder may authorize another person or persons to act
for him or her as proxy by transmitting or authorizing the transmission of
a telegram or other means of electronic transmission to the person who will
be the holder of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the person who will
be the holder of the proxy to receive such transmission, provided that any
such telegram or other means of electronic transmission must either set
forth or be submitted with information from which it can be determined that
the telegram or other electronic transmission was authorized by the
stockholder.
7
<PAGE>
Any copy, facsimile telecommunication or other reliable reproduction of the
writing or transmission authorizing another person or persons to act as proxy
for a stockholder may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used; provided that such copy, facsimile telecommunication
--------
or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
Section 2.10 Voting. At all meetings of the stockholders at which a
------
quorum is present, except as otherwise required by law, the Certificate of
Incorporation or these By-Laws, any question brought before any meeting of
stockholders shall be decided by the affirmative vote of the holders of a
majority of the total number of votes of the capital stock present in person or
represented by proxy and entitled to vote on such question, voting as a single
class. Unless otherwise provided in the Certificate of Incorporation, and
subject to Section 2.12, each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for each share of the capital
stock entitled to vote on such question held by such stockholder. The Board of
Directors, in its discretion, or the officer of the Corporation presiding at a
meeting of stockholders, in his or her discretion, may require that any votes
cast at such meeting shall be cast by written ballot.
Section 2.11 Consent of Stockholders in Lieu of Meeting. Unless
------------------------------------------
otherwise provided in the Certificate of Incorporation, any action required or
permitted to be taken at any Annual or Special Meeting of Stockholders of the
Corporation, may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and voted
and shall be delivered to the Corporation by delivery to its registered office
in the State of Delaware, its principal place of business, or an officer or
agent of the corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to the Corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested. Every written consent shall bear the date of signature of
each stockholder who signs the consent and no written consent shall be effective
to take the corporate action referred to therein unless, within sixty days of
the earliest dated consent delivered in the manner required by this Section 2.11
to the Corporation, written consents signed by a sufficient number of holders to
take action are delivered to the Corporation by delivery to its registered
office in the state of Delaware, its principal place of business, or an officer
or agent of the Corporation having custody of the book in which
8
<PAGE>
proceedings of meetings of stockholders are recorded. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing
and who, if the action had been taken at a meeting, would have been entitled to
notice of the meeting if the record date for such meeting had been the date that
written consents signed by a sufficient number of holders to take the action
were delivered to the Corporation as provided above in this section.
Section 2.12 List of Stockholders Entitled to Vote. The officer of
-------------------------------------
the Corporation who has charge of the stock ledger of the Corporation shall
prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder of the Corporation who is
present.
Section 2.13 Stock Ledger. The stock ledger of the Corporation shall
------------
be the only evidence as to who are the stockholders entitled to examine the
stock ledger, the list required by Section 2.13 or the books of the Corporation,
or to vote in person or by proxy at any meeting of stockholders.
Section 2.14 Inspectors of Election. In advance of any meeting of
----------------------
stockholders, the Board by resolution or the Chairman or President shall appoint
one or more inspectors of election to act at the meeting and make a written
report thereof. One or more other persons may be designated as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate is present, ready and willing to act at a meeting of stockholders, the
Chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Unless otherwise required by law, inspectors may be officers,
employees or agents of the Corporation. Each inspector, before entering upon
the discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspector shall have the duties prescribed by
law and shall take charge of the polls and, when the vote is completed, shall
make a certificate of the result of the vote taken and of such other facts as
may be required by law.
9
<PAGE>
Section 2.15 Record Date.
-----------
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record date shall not be more
than sixty nor less than ten days before the date of such meeting. If no record
date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; providing, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Direc tors may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than ten days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required by law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in this State, its principal
place of business, or an officer or agent of the Corporation having custody of
the book in which proceedings of meetings of stockholders are recorded.
Delivery made to a corporation's registered office shall be by hand or by
certified or registered mail, return receipt requested. If no record date has
been fixed by the Board of Directors and prior action by the Board of Directors
is required by law, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the close
of business on the day on which the Board of Directors adopts the resolutions
taking such prior action.
(c) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change,
10
<PAGE>
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty days prior to such action. If
no record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
ARTICLE III
DIRECTORS
---------
Section 3.1 Number and Election of Directors. The Board of Directors
--------------------------------
shall consist of not less than two nor more than ten members, the exact number
of which shall be determined from time to time by resolution adopted by the
Board of Directors. Except as provided in Section 3.3, directors shall be
elected by the stockholders at the Annual Meetings of Stockholders, and each
director so elected shall hold office until such director's successor is duly
elected and qualified, or until such director's death, or until such director's
earlier resignation or removal. Any director may resign at any time upon
written notice to the Corporation. Directors need not be stockholders.
Section 3.2 Vacancies. Unless otherwise required by law or the
---------
Certificate of Incorporation, vacancies arising through death, resignation,
removal or otherwise may be filled only by a majority of the directors then in
office, though less than a quorum, or by a sole remaining director, and the
directors so chosen shall hold office until the next annual election and until
their successors are duly elected and qualified, or until their earlier death,
resignation or removal.
Section 3.3 Duties and Powers. The business of the Corporation shall
-----------------
be managed by or under the direction of the Board of Directors which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws required to be exercised or done by the stockholders.
Section 3.4 Organization. At each meeting of the Board of Directors,
------------
the Chairman of the Board of Directors, or, in his or her absence, a director
chosen by a majority of the directors present, shall act as Chairman. The
Secretary of the Corporation shall act as Secretary at each meeting of the Board
of Directors. In case the Secretary shall be absent from any meeting of the
Board of Directors, an Assistant
11
<PAGE>
Secretary shall perform the duties of Secretary at such meeting; and in the
absence from any such meeting of the Secretary and all the Assistant
Secretaries, the Chairman of the meeting may appoint any person to act as
Secretary of the meeting.
Section 3.5 Meetings. The Board of Directors of the Corporation may
--------
hold meetings, both regular and special, either within or without the State of
Delaware. Regular meetings of the Board of Directors may be held at such time
and at such place as may from time to time be determined by the Board of
Directors and, unless required by resolution of the Board of Directors, without
notice. Special meetings of the Board of Directors may be called by the
Chairman of the Board of Directors, the Vice Chairman, if there be one, or a
majority of the directors then in office. Notice thereof stating the place,
date and hour of the meeting shall be given to each director either by mail not
less than forty-eight (48) hours before the date of the meeting, by telephone,
facsimile or telegram on twenty-four (24) hours' notice, or on such shorter
notice as the person or persons calling such meeting may deem necessary or
appropriate in the circumstances.
Section 3.6 Quorum. Except as may be otherwise required by law, the
------
Certificate of Incorporation or these By-Laws, at all meetings of the Board of
Directors, a majority of the entire Board of Directors shall constitute a quorum
for the transaction of business and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board
of Directors. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting of the time and
place of the adjourned meeting, until a quorum shall be present.
Section 3.7 Actions of Board. Unless otherwise provided by the
----------------
Certificate of Incorporation or these By-Laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all the members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
Section 3.8 Meetings by Means of Conference Telephone. Unless
-----------------------------------------
otherwise provided by the Certificate of Incorporation or these By-Laws, members
of the Board of Directors of the Corporation, or any committee designated by the
Board of Directors, may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in
12
<PAGE>
a meeting pursuant to this Section 3.10 shall constitute presence in person at
such meeting.
Section 3.9 Committees. The Board of Directors may, by resolution
----------
passed by a majority of the entire Board of Directors, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of any such committee. In the absence or disqualification
of a member of a committee, and in the absence of a designation by the Board of
Directors of an alternate member to replace the absent or disqualified member,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any absent or disqualified member. Any committee, to the extent permitted by
law and provided in the resolution establishing such committee, shall have and
may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it. Each
committee shall keep regular minutes and report to the Board of Directors when
required.
Section 3.10 Compensation. The directors may be paid their expenses,
------------
if any, of attendance at each meeting of the Board of Directors and may be paid
a fixed sum for attendance at each meeting of the Board of Directors or a stated
salary, or such other emoluments as the Board of Directors shall from time to
time determine. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
Section 3.11 Interested Directors. No contract or transaction between
--------------------
the Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because such person's or their
votes are counted for such purpose if (i) the material facts as to such person's
or their relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the Board
of Directors or committee in good faith authorizes the contract or transaction
by the affirmative votes of a majority
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of the disinterested directors, even though the disinterested directors be less
than a quorum; or (ii) the material facts as to such person's or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
--------
Section 4.1 General. The officers of the Corporation shall be chosen
-------
by the Board of Directors and shall be a President, a Secretary and a Treasurer.
The Board of Directors, in its discretion, may also choose a Chairman of the
Board of Directors (who must be a director) and one or more Vice Presidents,
Assistant Secretaries, Assistant Treasurers and other officers. Any number of
offices may be held by the same person, unless otherwise prohibited by law, the
Certificate of Incorporation or these By-Laws. The officers of the Corporation
need not be stockholders of the Corporation nor, except in the case of the
Chairman of the Board of Directors, need such officers be directors of the
Corporation.
Section 4.2 Election. The Board of Directors at its first meeting
--------
held after each Annual Meeting of Stockholders (or action by written consent of
stockholders in lieu of the Annual Meeting of Stockholders), shall elect the
officers of the Corporation who shall hold their offices for such terms and
shall exercise such powers and perform such duties as shall be determined from
time to time by the Board of Directors; and all officers of the Corporation
shall hold office until their successors are chosen and qualified, or until
their earlier resignation or removal. Any officer elected by the Board of
Directors may be removed at any time by the affirmative vote of a majority of
the Board of Directors. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries of all officers of the
Corporation shall be fixed by the Board of Directors.
Section 4.3 Voting Securities Owned by the Corporation. Powers of
------------------------------------------
attorney, proxies, waivers of notice of meeting, consents and other instruments
relating
14
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to securities owned by the Corporation may be executed in the name of and on
behalf of the Corporation by the President or any Vice President or any other
officer authorized to do so by the Board of Directors and any such officer may,
in the name of and on behalf of the Corporation, take all such action as any
such officer may deem advisable to vote in person or by proxy at any meeting of
security holders of any corporation in which the Corporation may own securities
and at any such meeting shall possess and may exercise any and all rights and
power incident to the ownership of such securities and which, as the owner
thereof, the Corporation might have exercised and possessed if present. The
Board of Directors may, by resolution, from time to time confer like powers upon
any other person or persons.
Section 4.4 Chairman of the Board of Directors. The Chairman of the
----------------------------------
Board of Directors, if there be one, shall preside at all meetings of the
stockholders and of the Board of Directors. The Chairman of the Board of
Directors shall be the Chief Executive Officer of the Corporation, and except
where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all
contracts, certificates and other instruments of the Corporation which may be
authorized by the Board of Directors. During the absence or disability of the
President, the Chairman of the Board of Directors shall exercise all the powers
and discharge all the duties of the President. The Chairman of the Board of
Directors shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him or her by these By-Laws or by
the Board of Directors.
Section 4.5 President. The President shall, subject to the control
---------
of the Board of Directors and, if there be one, the Chairman of the Board of
Directors, have general supervision of the business of the Corporation and shall
see that all orders and resolutions of the Board of Directors are carried into
effect. The President shall execute all bonds, mortgages, contracts and other
instruments of the Corporation requiring a seal, under the seal of the
Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and
execute documents when so authorized by these By-Laws, the Board of Directors or
the President. In the absence or disability of the Chairman of the Board of
Directors, or if there be none, the President shall preside at all meetings of
the stockholders and the Board of Directors. If there be no Chairman of the
Board of Directors, the President shall be the Chief Executive Officer of the
Corporation. The President shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him or her by
these By-Laws or by the Board of Directors.
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Section 4.6 Vice Presidents. At the request of the President or in
---------------
his or her absence or in the event of his or her inability or refusal to act
(and if there be no Chairman of the Board of Directors), the Vice President or
the Vice Presidents if there is more than one (in the order designated by the
Board of Directors) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the President. Each Vice President shall perform such other duties and have
such other powers as the Board of Directors from time to time may prescribe. If
there be no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence
of the President or in the event of the inability or refusal of the President to
act, shall perform the duties of the President, and when so acting, shall have
all the powers of and be subject to all the restrictions upon the President.
Section 4.7 Secretary. The Secretary shall attend all meetings of
---------
the Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for the standing committees of the
Board of Directors when required. The Secretary shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors, the Chairman of the Board of Directors or President,
under whose supervision the Secretary shall be. If the Secretary shall be
unable or shall refuse to cause to be given notice of all meetings of the
stockholders and special meetings of the Board of Directors, and if there be no
Assistant Secretary, then either the Board of Directors or the President may
choose another officer to cause such notice to be given. The Secretary shall
have custody of the seal of the Corporation and the Secretary or any Assistant
Secretary, if there be one, shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by the signature
of the Secretary or by the signature of any such Assistant Secretary. The Board
of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his or her signature. The
Secretary shall see that all books, reports, statements, certificates and other
documents and records required by law to be kept or filed are properly kept or
filed, as the case may be.
Section 4.8 Treasurer. The Treasurer shall have the custody of the
---------
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall
16
<PAGE>
disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the President and the Board of Directors, at its regular meetings, or when the
Board of Directors so requires, an account of all transactions as Treasurer and
of the financial condition of the Corporation. If required by the Board of
Directors, the Treasurer shall give the Corporation a bond in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of the office of Treasurer and for the
restoration to the Corporation, in case of the Treasurer's death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in the Treasurer's possession or under control
of the Treasurer belonging to the Corporation.
Section 4.9 Assistant Secretaries. Except as may be otherwise
---------------------
provided in these By-Laws, Assistant Secretaries, if there be any, shall perform
such duties and have such powers as from time to time may be assigned to them by
the Board of Directors, the President, any Vice President, if there be one, or
the Secretary, and in the absence of the Secretary or in the event of his or her
disability or refusal to act, shall perform the duties of the Secretary, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 4.10 Assistant Treasurers. Assistant Treasurers, if there be
--------------------
any, shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the President, any Vice President,
if there be one, or the Treasurer, and in the absence of the Treasurer or in the
event of the Treasurer's disability or refusal to act, shall perform the duties
of the Treasurer, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Treasurer. If required by the Board of
Directors, an Assistant Treasurer shall give the Corporation a bond in such sum
and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of the office of Assistant
Treasurer and for the restoration to the Corporation, in case of the Assistant
Treasurer's death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in the Assistant
Treasurer's possession or under control of the Assistant Treasurer belonging to
the Corporation.
Section 4.11 Other Officers. Such other officers as the Board of
--------------
Directors may choose shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and powers.
17
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ARTICLE V
STOCK
-----
Section 5.1 Form of Certificates. Every holder of stock in the
--------------------
Corporation shall be entitled to have a certificate signed, in the name of the
Corporation, (i) by the Chairman of the Board of Directors, the President or a
Vice President and (ii) by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Corporation, certifying the number of
shares owned by such holder of stock in the Corporation.
Section 5.2 Signatures. Any or all of the signatures on a
----------
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if such person were such officer, transfer agent or registrar at
the date of issue.
Section 5.3 Lost, Destroyed, Stolen or Mutilated Certificates. The
-------------------------------------------------
Board of Directors may direct a new certificate to be issued in place of any
certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate, or such person's legal
representative, to advertise the same in such manner as the Board of Directors
shall require and/or to give the Corporation a bond in such sum as it may direct
as indemnity against any claim that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen or destroyed.
Section 5.4 Transfers. Stock of the Corporation shall be
---------
transferable in the manner prescribed by law and in these By-Laws. Transfers of
stock shall be made on the books of the Corporation only by the person named in
the certificate or by such person's attorney lawfully constituted in writing and
upon the surrender of the certificate therefor, properly endorsed for transfer
and payment of all necessary transfer taxes; provided, however, that such
-------- -------
surrender and endorsement or payment of taxes shall not be required in any case
in which the officers of the Corporation shall determine to waive
18
<PAGE>
such requirement. Every certificate exchanged, returned or surrendered to the
Corporation shall be marked "Cancelled," with the date of cancellation, by the
Secretary or Assistant Secretary of the Corporation or the transfer agent
thereof. No transfer of stock shall be valid as against the Corporation for any
purpose until it shall have been entered in the stock records of the Corporation
by an entry showing from and to whom transferred.
Section 5.5 Transfer and Registry Agents. The Corporation may from
----------------------------
time to time maintain one or more transfer offices or agencies and registry
offices or agencies at such place or places as may be determined from time to
time by the Board of Directors.
Section 5.6 Beneficial Owners. The Corporation shall be entitled to
-----------------
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
law.
ARTICLE VI
NOTICES
-------
Section 6.1 Notices. Whenever written notice is required by law, the
-------
Certificate of Incorporation or these By-Laws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at such
person's address as it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when
the same shall be deposited in the United States mail. Written notice may also
be given personally or by telegram, facsimile, telex or cable.
Section 6.2 Waivers of Notice.
-----------------
Whenever any notice is required by law, the Certificate of
Incorporation or these By-Laws, to be given to any director, member of a
committee or stockholder, a waiver thereof in writing, signed, by the person or
persons entitled to said
19
<PAGE>
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting, present by person or
represented by proxy, shall constitute a waiver of notice of such meeting,
except where the person attends the meeting for the express purpose of objecting
at the beginning of the meeting to the transaction of any business because the
meeting is not lawfully called or convened.
ARTICLE VII
GENERAL PROVISIONS
------------------
Section 7.1 Dividends. Subject to the requirements of the General
---------
Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware
Code (the "GCL") and the provisions of the Certificate of Incorporation,
dividends upon the capital stock of the Corporation may be declared by the Board
of Directors at any regular or special meeting of the Board of Directors (or any
action by written consent in lieu thereof in accordance with Section 3.8), and
may be paid in cash, in property, or in shares of the Corporation's capital
stock. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of
Directors from time to time, in its absolute discretion, deems proper as a
reserve or reserves to meet contingencies, or for purchasing any of the shares
of capital stock, warrants, rights, options, bonds, debentures, notes, scrip or
other securities or evidences of indebtedness of the Corporation, or for
equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for any other proper purpose, and the Board of Directors may
modify or abolish any such reserve.
Section 7.2 Disbursements. All checks or demands for money and notes
-------------
of the Corporation shall be signed by such officer or officers or such other
person or persons as the Board of Directors may from time to time designate.
Section 7.3 Fiscal Year. The fiscal year of the Corporation shall be
-----------
fixed by resolution of the Board of Directors.
Section 7.4 Corporate Seal. The corporate seal shall have inscribed
--------------
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
20
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ARTICLE VII
INDEMNIFICATION
---------------
Section 8.1 Power to Indemnify in Actions, Suits or Proceedings Other
---------------------------------------------------------
than Those by or in the Right of the Corporation. Subject to Section 8.3, the
- ------------------------------------------------
Corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation) by reason of the fact that such
person is or was a director or officer of the Corporation, or is or was a
director or officer of the Corporation serving at the request of the Corporation
as a director or officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, such person had no reasonable cause to believe his or her conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
---- ----------
equivalent, shall not, of itself, create a presumption that such person did not
act in good faith and in a manner which such person reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful.
Section 8.2 Power to Indemnify in Actions, Suits or Proceedings by or
---------------------------------------------------------
in the Right of the Corporation. Subject to Section 8.3, the Corporation shall
- -------------------------------
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the Corporation, or is or was a
director or officer of the Corporation serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit if
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been
21
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adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 8.3 Authorization of Indemnification. Any indemnification
--------------------------------
under this Article VIII (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standard of conduct set forth in
Section 8.1 or Section 8.2, as the case may be. Such determination shall be
made (i) by a majority vote of the directors who are not parties to such action,
suit or proceeding, even though less than a quorum, or (ii) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a
director or officer of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding described above, or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection therewith, without the necessity of authorization in
the specific case.
Section 8.4 Good Faith Defined. For purposes of any determination
------------------
under Section 8.3, a person shall be deemed to have acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his or her conduct was
unlawful, if such person's action is based on the records or books of account of
the Corporation or another enterprise, or on information supplied to such person
by the officers of the Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the Corporation or another
enterprise or on information or records given or reports made to the Corporation
or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or
another enterprise. The term "another enterprise" as used in this Section 4
shall mean any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise of which such person is or was serving
at the request of the Corporation as a director, officer, employee or agent.
The provisions of this Section 8.4 shall not be deemed to be exclusive or to
limit in any way the circumstances in which a person may be deemed to have met
the applicable standard of conduct set forth in Section 8.1 or 8.2, as the case
may be.
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Section 8.5 Indemnification by a Court. Notwithstanding any contrary
--------------------------
determination in the specific case under Section 8.3, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to
the Court of Chancery of the State of Delaware or any other court of competent
jurisdiction in the State of Delaware for indemnification to the extent
otherwise permissible under Sections 8.1 and 8.2. The basis of such
indemnification by a court shall be a determination by such court that
indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standards of conduct set forth in
Section 8.1 or 8.2, as the case may be. Neither a contrary determination in the
specific case under Section 8.3 nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director
or officer seeking indemnification has not met any applicable standard of
conduct. Notice of any application for indemnification pursuant to this Section
8.5 shall be given to the Corporation promptly upon the filing of such
application. If successful, in whole or in part, the director or officer
seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 8.6 Expenses Payable in Advance. Expenses incurred by a
---------------------------
director or officer in defending or investigating a threatened or pending
action, suit or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation as authorized in this Article VIII.
Section 8.7 Nonexclusivity of Indemnification and Advancement of
----------------------------------------------------
Expenses. The indemnification and advancement of expenses provided by or
- --------
granted pursuant to this Article VIII shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under the Certificate of Incorporation or any By-Law, agreement,
contract, vote of stockholders or disinterested directors or pursuant to the
direction (howsoever embodied) of any court of competent jurisdiction or
otherwise, both as to action in such person's official capacity and as to action
in another capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in Section 8.1 and 8.2
shall be made to the fullest extent permitted by law. The provisions of this
Article VIII shall not be deemed to preclude the indemnification of any person
who is not specified in Section 8.1 or 8.2 but whom the Corporation has the
power or obligation to indemnify under the provisions of the GCL, or otherwise.
23
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Section 8.8 Insurance. The Corporation may purchase and maintain
---------
insurance on behalf of any person who is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against any liability asserted against such person and incurred
by such person in any such capacity, or arising out of such person's status as
such, whether or not the Corporation would have the power or the obligation to
indemnify such person against such liability under the provisions of this
Article VIII.
Section 8.9 Certain Definitions. For purposes of this Article VIII,
-------------------
references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors or officers, so that any person who is or was a director or officer of
such constituent corporation, or is or was a director or officer of such
constituent corporation serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, shall stand in
the same position under the provisions of this Article VIII with respect to the
resulting or surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had continued. For
purposes of this Article VIII, references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director or officer with
respect to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner such person reasonably believed
to be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to the best
interests of the Corporation" as referred to in this Article VIII.
Section 8.10 Survival of Indemnification and Advancement of Expenses.
-------------------------------------------------------
The indemnification and advancement of expenses provided by, or granted pursuant
to, this Article VIII shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
Section 8.11 Limitation on Indemnification. Notwithstanding anything
-----------------------------
contained in this Article VIII to the contrary, except for proceedings to
enforce rights
24
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to indemnification (which shall be governed by Section 8.5 hereof), the
Corporation shall not be obligated to indemnify any director or officer (or his
or her heirs, executors or personal or legal representatives) or advance
expenses in connection with a proceeding (or part thereof) initiated by such
person unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors of the Corporation.
Section 8.12 Indemnification of Employees and Agents. The Corpora-
---------------------------------------
tion may, to the extent authorized from time to time by the Board of Directors,
provide rights to indemnification and to the advancement of expenses to
employees and agents of the Corporation similar to those conferred in this
Article VIII to directors and officers of the Corporation.
ARTICLE IX
AMENDMENTS
----------
Section 9.1 Amendments. These By-Laws may be altered, amended or
----------
repealed, in whole or in part, or new By-Laws may be adopted by the stockholders
or by the Board of Directors, provided, however, that notice of such alteration,
amendment, repeal or adoption of new By-Laws be contained in the notice of such
meeting of stockholders or Board of Directors as the case may be. All such
amendments must be approved by either the holders of a majority of the
outstanding capital stock entitled to vote thereon or by a majority of the
entire Board of Directors then in office.
Section 9.2 Entire Board of Directors. As used in this Article IX
-------------------------
and in these By-Laws generally, the term "entire Board of Directors" means the
total number of directors which the Corporation would have if there were no
vacancies.
25
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November 12, 1998
Koo Koo Roo Enterprises, Inc.
18831 Von Karman Avenue
Irvine, California 92612
Re: Koo Koo Roo Enterprises, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to Koo Koo Roo Enterprises, Inc., a
Delaware corporation (the "Company"), in connection with the filing with the
Securities and Exchange Commission (the "Commission"), of its Registration
Statement on Form S-8 (the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), covering (i) up to 20,787,448 shares
(the "1998 Shares") of Common Stock, par value $.01 per share, of the Company
("Common Stock"), to be issued by the Company upon exercise of options granted
under the Koo Koo Roo Enterprises, Inc. 1998 Stock Incentive Plan (the "1998
Plan"), (ii) up to 987,089 shares (the "1994 Shares") of Common Stock to be
issued by the Company upon exercise of options granted under the Family
Restaurants, Inc. 1994 Incentive Stock Option Plan (the "1994 Plan"), (iii) up
to 734,216 shares (the "KKR 1997 Shares") of Common Stock to be issued by the
Company upon exercise of options granted under the 1997 Stock Option Plan for
Restaurant Employees and Management of Koo Koo Roo, Inc. (the "KKR 1997 Plan"),
(iv) up to 4,234,168 shares (the "KKR Awards Shares") of Common Stock to be
issued
<PAGE>
Koo Koo Roo Enterprises, Inc.
November 12, 1998
Page 2
upon exercise of options granted under the Koo Koo Roo, Inc. Stock Awards Plan,
as amended (the "KKR Awards Plan"), (v) up to 75,000 shares (the "May 19, 1997
Plan One Shares") of Common Stock to be issued by the Company upon exercise of
options granted under the Nonqualified Stock Option Agreement dated May 19,1997
(the "May 19, 1997 Plan One"), (vi) up to 100,000 shares (the "May 19, 1997 Plan
Two Shares") of Common Stock to be issued by the Company upon exercise of
options granted under the Nonqualified Stock Option Agreement dated May 19, 1997
(the "May 19, 1997 Plan Two"), (vii) up to 100,000 shares (the "May 19, 1997
Plan Three Shares") of Common Stock to be issued by the Company upon exercise of
options granted under the Nonqualified Stock Option Agreement dated May 19, 1997
(the May 19, 1997 Plan Three"), (viii) up to 100,000 shares (the "James Smith
Shares") of Common Stock to be issued by the Company upon exercise of options
granted under the Nonqualified Stock Option Agreement for James Smith (the
"James Smith Plan"), (ix) up to 40,000 shares (the "May 19, 1997 Plan Four
Shares") of Common Stock to be issued by the Company upon exercise of options
granted under the Nonqualified Stock Option Agreement dated May 19, 1997 (the
"May 19, 1997 Plan Four"), and (x) up to 20,000 shares (the "Anne Ehringer
Shares" and together with the 1998 Shares, the 1994 Shares, the KKR 1997 Shares,
the KKR Awards Shares, the May 19, 1997 Plan One Shares, the May 19, 1997 Plan
Two Shares, the May 19, 1997 Plan Three Shares, the James Smith Shares, and the
May 19, 1997 Plan Four Shares, the "Shares") of Common Stock to be issued by the
Company upon exercise of options granted under the Koo Koo Roo Enterprises, Inc.
Nonqualified Stock Option Agreement for Anne Ehringer, as amended (the "Anne
Ehringer Plan" and together with the 1998 Plan, the 1994 Plan, the KKR 1997
Plan, the KKR Awards Plan, May 19, 1997 Plan One, May 19, 1997 Plan Two, May 19,
1997 Plan Three, the James Smith Plan, and May 19, 1997 Plan Four, the "Plans").
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of (i) the Plans, (ii) the Fifth Restated Certificate of
Incorporation of the Company and the Amended and Restated Bylaws of the Company,
(iii) the Registration Statement, (iv) copies of certain resolutions of the
Board of Directors of the Company relating to, among other things, the Plans,
the Shares and the Registration Statement, (v) the form of certificate
representing the Shares and (vi) such records of the Company and such
agreements, certificates of public officials, certificates of officers or other
representatives of the Company and others, and such other documents,
certificates
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Koo Koo Roo Enterprises, Inc.
November 12, 1998
Page 3
and records as we have considered necessary or appropriate as a basis for the
opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as conformed, certified or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed by parties other than the Company, we have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by such
parties of such documents and that such documents constitute or will constitute
valid and binding obligations of such parties. As to any facts material to the
opinions expressed herein that we have not independently established or
verified, we have relied upon oral or written statements and representations of
officers and other representatives of the Company and others.
This opinion is being furnished in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act.
Members of our firm are admitted to the Bar in the State of California and
we express no opinion as to the laws of any other jurisdiction other than the
Delaware General Corporation Law.
Based upon and subject to the foregoing, and to the limitations,
qualifications, exceptions and assumptions set forth herein, and assuming (i)
the valid issuance of options pursuant to the Plan, (ii) the conformity of the
certificates representing the Shares to the form thereof examined by us and
(iii) the due execution and countersignature of such certificates, we are of the
opinion that, upon the issuance and sale of Shares upon the exercise of the
options granted pursuant to the Plans, and receipt by the Company of the
exercise price of such options, in the manner contemplated by the Plans and the
Registration Statement, and subject to the Company completing all actions and
proceedings required on its part to be taken prior to the issuance of the Shares
pursuant to the terms of the Plans, the Shares will be validly issued, fully
paid and nonassessable.
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Koo Koo Roo Enterprises, Inc.
November 12, 1998
Page 4
This opinion is furnished to you solely for your benefit in connection
with the filing of the Registration Statement and, except as set forth in the
next sentence, is not to be used, circulated, quoted or otherwise referred to
for any other purpose or relied upon by any other person for any purpose without
our prior express written consent. We hereby consent to the filing of this
opinion with the Commission as Exhibit 5.1 to the Registration Statement. In
giving this consent, we do not thereby admit that we are included in the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
<PAGE>
EXHIBIT 23.1
Consent of Independent Public Accountants
Board of Directors
Koo Koo Roo Enterprises, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Koo Koo Roo Enterprises, Inc. of our report dated March 5, 1998, relating
to the consolidated balance sheets of Koo Koo Roo Enterprises, Inc. (formerly
known as Family Restaurants, Inc.) and subsidiaries as of December 28, 1997 and
December 29, 1996 and the related consolidated statements of operations, common
stockholders' equity (deficit) and cash flows for the years ended December 28,
1997, December 29, 1996 and December 31, 1995 and the related financial
statement schedule, which report appears in the December 28, 1997, annual report
of Form 10-K of Koo Koo Roo Enterprises, Inc.
/s/ KPMG Peat Marwick LLP
Orange County, California
November 9, 1998
