UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 25, 1995
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ____________ to _____________
Commission File Number: 000-17962
Applebee's International, Inc.
(Exact name of registrant as specified in its charter)
Delaware 43-1461763
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
4551 W. 107th Street, Suite 100, Overland Park, Kansas 66207
(Address of principal executive offices and zip code)
(913) 967-4000
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
The number of shares of the registrant's common stock outstanding as of August
2, 1995 was 30,452,546.
1
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APPLEBEE'S INTERNATIONAL, INC.
FORM 10-Q
FISCAL QUARTER ENDED JUNE 25, 1995
INDEX
<TABLE>
<CAPTION>
Page
PART I FINANCIAL INFORMATION
<S> <C> <C>
Item 1. Consolidated Financial Statements:
Consolidated Balance Sheets as of June 25, 1995
and December 25, 1994................................................................ 3
Consolidated Statements of Earnings for the 13 Weeks and 26 Weeks
Ended June 25, 1995 and June 26, 1994................................................ 4
Consolidated Statement of Stockholders' Equity for the 26 Weeks
Ended June 25, 1995.................................................................. 5
Consolidated Statements of Cash Flows for the 26 Weeks
Ended June 25, 1995 and June 26, 1994................................................ 6
Notes to Consolidated Financial Statements.............................................. 8
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations........................................ 11
PART II OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders..................................... 19
Item 6. Exhibits and Reports on Form 8-K........................................................ 19
Signatures ................................................................................................. 20
Exhibit Index............................................................................................... 21
</TABLE>
2
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APPLEBEE'S INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Unaudited)
(dollars in thousands, except per share amounts)
<TABLE>
<CAPTION>
June 25, December 25,
1995 1994
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents.................................................... $ 3,880 $ 9,634
Short-term investments, at market value (amortized cost of $4,988 in 1995
and $9,046 in 1994)....................................................... 5,156 8,893
Receivables (less allowance for bad debts of $862 in 1995 and $740 in 1994).. 9,489 7,396
Inventories.................................................................. 9,431 5,159
Prepaid and other current assets............................................. 2,750 2,887
Total current assets...................................................... 30,706 33,969
Property and equipment, net..................................................... 133,663 114,729
Goodwill, net................................................................... 26,851 21,113
Franchise interest and rights, net.............................................. 6,093 6,401
Other assets.................................................................... 3,899 3,802
$ 201,212 $ 180,014
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Demand note and current portion of notes payable and capitalized lease
obligations............................................................... $ 2,417 $ 3,505
Current portion of obligations under noncompetition and consulting agreement. 220 220
Accounts payable............................................................. 11,977 10,750
Accrued expenses and other current liabilities............................... 16,696 16,713
Accrued dividends............................................................ -- 1,269
Accrued income taxes......................................................... 222 1,169
Total current liabilities................................................. 31,532 33,626
Non-current liabilities:
Notes payable and capitalized lease obligations - less current portion....... 41,712 34,312
Franchise deposits........................................................... 1,385 1,355
Obligations under noncompetition and consulting agreement
- less current portion.................................................... 440 660
Deferred income taxes........................................................ 365 715
Total non-current liabilities............................................. 43,902 37,042
Total liabilities......................................................... 75,434 70,668
Minority interest in joint venture.............................................. 650 558
Commitments and contingencies (Notes 3 and 4)
Stockholders' equity:
Preferred stock - par value $0.01 per share: authorized - 1,000,000 shares;
no shares issued.......................................................... -- --
Common stock - par value $0.01 per share: authorized - 125,000,000 shares;
issued - 28,629,818 shares in 1995 and 28,295,479 shares in 1994.......... 286 283
Additional paid-in capital................................................... 83,824 78,675
Retained earnings............................................................ 41,763 30,775
Unrealized gain (loss) on short-term investments, net of income taxes........ 104 (96)
125,977 109,637
Treasury stock - 281,772 shares in 1995 and 1994, at cost.................... (849) (849)
Total stockholders' equity................................................ 125,128 108,788
$ 201,212 $ 180,014
See notes to consolidated financial statements.
</TABLE>
3
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APPLEBEE'S INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF EARNINGS
(Unaudited)
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
13 Weeks Ended 26 Weeks Ended
June 25, June 26, June 25, June 26,
1995 1994 1995 1994
<S> <C> <C> <C> <C>
Revenues:
Company restaurant sales............................... $ 73,120 $ 54,859 $ 139,141 $ 104,706
Franchise income....................................... 10,681 7,358 20,099 14,016
Total operating revenues............................ 83,801 62,217 159,240 118,722
Cost of Company restaurant sales:
Food and beverage...................................... 20,953 16,056 39,861 30,877
Labor.................................................. 23,061 17,426 44,129 33,663
Direct and occupancy................................... 17,807 13,152 33,185 25,471
Pre-opening expense.................................... 423 631 1,056 767
Total cost of Company restaurant sales.............. 62,244 47,265 118,231 90,778
General and administrative expenses....................... 9,480 7,040 18,389 13,914
Merger costs.............................................. -- -- 1,770 --
Amortization of intangible assets......................... 595 518 1,110 1,065
Loss on disposition of restaurants and equipment.......... 80 461 106 511
Operating earnings........................................ 11,402 6,933 19,634 12,454
Other income (expense):
Investment income...................................... 210 185 447 491
Interest expense....................................... (679) (385) (1,293) (684)
Other income........................................... 71 53 153 113
Total other income (expense)........................ (398) (147) (693) (80)
Earnings before income taxes.............................. 11,004 6,786 18,941 12,374
Income taxes.............................................. 4,193 2,192 7,804 4,096
Net earnings.............................................. 6,811 4,594 11,137 8,278
Pro forma provision for income taxes
of pooled companies.................................... -- 337 73 620
Pro forma net earnings.................................... $ 6,811 $ 4,257 $ 11,064 $ 7,658
Pro forma net earnings per common share................... $ 0.24 $ 0.15 $ 0.39 $ 0.27
Weighted average shares outstanding....................... 28,244 27,974 28,162 27,942
See notes to consolidated financial statements.
</TABLE>
4
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APPLEBEE'S INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
(Unaudited)
(dollars in thousands)
<TABLE>
<CAPTION>
Unrealized
Gain
Additional (Loss) on Total
Common Stock Paid-In Retained Short-Term Treasury Stockholders'
Shares Amount Capital Earnings Investments Stock Equity
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, December 25, 1994........ 28,295,479 $ 283 $ 78,675 $ 30,775 $ (96) $ (849) $108,788
Stock options exercised:
Company...................... 334,339 3 2,486 -- -- -- 2,489
IRC.......................... -- -- 1,333 -- -- -- 1,333
Income tax benefit upon exercise
of stock options............. -- -- 1,181 -- -- -- 1,181
Unrealized gain on short-term
investments, net of income
taxes........................ -- -- -- -- 200 -- 200
Pro forma provision for income
taxes of pooled company...... -- -- -- 73 -- -- 73
Reclassification of net income
of IRC partnerships.......... -- -- 149 (149) -- -- --
Pro forma net earnings.......... -- -- -- 11,064 -- -- 11,064
Balance, June 25, 1995............. 28,629,818 $ 286 $ 83,824 $ 41,763 $ 104 $ (849) $125,128
See notes to consolidated financial statements.
</TABLE>
5
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APPLEBEE'S INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(dollars in thousands)
<TABLE>
<CAPTION>
26 Weeks Ended
June 25, June 26,
1995 1994
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Pro forma net earnings...................................... $ 11,064 $ 7,658
Adjustments to reconcile pro forma net earnings to net
cash provided by operating activities:
Depreciation and amortization............................ 5,415 3,930
Amortization of intangible assets........................ 1,110 1,065
Gain on sale of investments.............................. (62) (91)
Deferred income tax provision (benefit).................. 175 (171)
Loss on disposition of restaurants and equipment......... 106 311
Pro forma provision for income taxes of pooled companies. 73 620
Changes in assets and liabilities (exclusive of effects of
acquisitions):
Receivables.............................................. (2,093) 157
Inventories.............................................. (4,272) (3,347)
Prepaid and other current assets......................... (509) 149
Accounts payable......................................... 1,227 490
Accrued expenses and other current liabilities........... (17) 1,145
Accrued income taxes..................................... (947) (966)
Franchise deposits....................................... 30 29
Other.................................................... 561 (219)
NET CASH PROVIDED BY
OPERATING ACTIVITIES.................................. 11,861 10,760
CASH FLOWS FROM INVESTING ACTIVITIES:
Maturities and sales of short-term investments.............. 4,120 1,887
Purchases of property and equipment......................... (19,409) (22,240)
Acquisition of restaurants.................................. (9,673) (2,315)
Proceeds from sale of restaurants and equipment............. 37 1,400
NET CASH USED BY INVESTING ACTIVITIES.................... (24,925) (21,268)
CASH FLOWS FROM FINANCING ACTIVITIES:
Dividends paid.............................................. (1,269) (879)
Cash distributions.......................................... -- (1,919)
Issuance of common stock upon exercise of stock options..... 3,822 323
Income tax benefit upon exercise of stock options........... 1,181 152
Proceeds from issuance of notes payable..................... 8,087 29,902
Payments on notes payable................................... (4,383) (10,182)
Payments under noncompetition and consulting agreement...... (220) (244)
Minority interest in net earnings of joint venture.......... 92 50
NET CASH PROVIDED BY
FINANCING ACTIVITIES.................................. 7,310 17,203
NET INCREASE (DECREASE) IN CASH AND
CASH EQUIVALENTS............................................ (5,754) 6,695
CASH AND CASH EQUIVALENTS, beginning of period................. 9,634 8,054
CASH AND CASH EQUIVALENTS, end of period....................... $ 3,880 $ 14,749
See notes to consolidated financial statements.
</TABLE>
6
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APPLEBEE'S INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS - (Continued)
(Unaudited)
(dollars in thousands)
<TABLE>
<CAPTION>
26 Weeks Ended
June 25, June 26,
1995 1994
<S> <C> <C>
SUPPLEMENTAL DISCLOSURES OF CASH
FLOW INFORMATION:
Cash paid during the 26 week period for:
Income taxes............................................ $ 8,576 $ 5,233
Interest................................................ $ 1,068 $ 813
</TABLE>
SUPPLEMENTAL DISCLOSURES OF NONCASH INVESTING AND FINANCING ACTIVITIES:
Capitalized lease obligations of $2,608,000 were incurred in April 1995 when the
Company acquired the operations and assets of five franchise restaurants.
DISCLOSURE OF ACCOUNTING POLICY:
For purposes of the consolidated statements of cash flows, the Company considers
all highly liquid investments purchased with a maturity of three months or less
to be cash equivalents.
See notes to consolidated financial statements.
7
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APPLEBEE'S INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. Basis of Presentation
The consolidated financial statements of Applebee's International, Inc. and
subsidiaries (the "Company") included in this Form 10-Q have been prepared
without audit (except that the balance sheet information as of December 25, 1994
has been derived from consolidated financial statements which were audited) in
accordance with the rules and regulations of the Securities and Exchange
Commission. Although certain information and footnote disclosures normally
included in financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted, the Company believes that
the disclosures are adequate to make the information presented not misleading.
The accompanying consolidated financial statements should be read in conjunction
with the audited financial statements and notes thereto included in the
Company's Current Report on Form 8-K dated May 15, 1995.
The Company believes that all adjustments, consisting only of normal recurring
adjustments, necessary for a fair presentation of the results of the interim
periods presented have been made. The results of operations for the interim
periods presented are not necessarily indicative of the results to be expected
for the full year.
Beginning in fiscal 1995, the cost of meals provided to employees and other
complimentary meals have been classified as labor costs and direct and occupancy
costs, respectively. Previously, the retail price of such meals was reflected in
Company restaurant sales with corresponding amounts reflected as labor costs or
direct and occupancy costs. The consolidated financial statements for the 13
weeks and 26 weeks ended June 26, 1994 have been reclassified to conform to the
presentation for the 13 weeks and 26 weeks ended June 25, 1995, the effects of
which were not material.
2. Acquisitions
IRC Merger: On March 23, 1995, a wholly-owned subsidiary of the Company merged
with and into Innovative Restaurant Concepts, Inc. ("IRC"), referred to herein
as the "IRC Merger". Immediately prior to the IRC Merger, IRC's affiliated
limited partnerships, Cobb/Gwinnett Rio, Ltd., Rio Real Estate, L.P. and CG
Restaurant Partners, Ltd., were liquidated, and contemporaneously with the IRC
Merger, the Company acquired the interests of the limited partners in the
distributed assets of these partnerships. As a result of the IRC Merger, IRC
became a wholly-owned subsidiary of the Company. A total of approximately
2,630,000 shares of the Company's newly-issued common stock was issued to the
shareholders and limited partners of IRC, including IRC shares issued in 1995
upon the exercise of IRC stock options prior to the IRC Merger. IRC employees
also exchanged pre-existing stock options for options to purchase approximately
147,000 shares of the Company's common stock. Of such shares and options, 7.5%
were placed in escrow to address potential adjustments during the escrow period
that will end December 23, 1995. In addition, the Company assumed approximately
$13,700,000 of IRC indebtedness, of which $1,270,000 was repaid at closing. At
the time of the IRC Merger, IRC operated 17 restaurants, 13 of which were Rio
Bravo Cantinas, a Mexican restaurant concept, and four were other specialty
restaurants.
8
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The IRC Merger was accounted for as a pooling of interests and accordingly, the
accompanying consolidated financial statements have been restated to include the
accounts and operations of the merged entities for all periods presented. All
share amounts have been restated to reflect the total number of shares issued in
the IRC Merger for all periods presented. Combined and separate results of the
Company and IRC during the periods preceding the IRC Merger were as follows
(amounts in thousands):
<TABLE>
<CAPTION>
Pro Forma Pro Forma
Company IRC Adjustments Combined
<S> <C> <C> <C> <C>
13 Weeks Ended
March 26, 1995:
Net sales.......... $ 52,199 $ 13,822 $ -- $ 66,021
Net earnings....... $ 5,519 $ 577 $ (1,843) $ 4,253
13 Weeks Ended
June 26, 1994:
Net sales.......... $ 40,898 $ 13,961 $ -- $ 54,859
Net earnings....... $ 3,531 $ 763 $ (37) $ 4,257
26 Weeks Ended
June 26, 1994:
Net sales.......... $ 78,538 $ 26,168 $ -- $ 104,706
Net earnings....... $ 6,447 $ 1,343 $ (132) $ 7,658
</TABLE>
Adjustments have been made to eliminate the impact of intercompany balances and
to record provisions for pro forma income taxes for certain affiliates of IRC.
Merger costs of $1,770,000 relating to the IRC Merger were expensed in the first
quarter of 1995. Merger costs include investment banking fees, legal and
accounting fees, and other merger related expenses. The impact of these costs on
pro forma net earnings per common share was approximately $0.06 in the first
quarter of 1995.
Other restaurant acquisitions: On April 3, 1995, the Company acquired the
operations of five franchise restaurants and the related furniture and fixtures,
certain land and leasehold improvements. The total purchase price was
approximately $9,673,000, of which cash payments totaling $9,548,000 have been
made and $125,000 remains in escrow to address potential adjustments. The
acquisition was accounted for as a purchase, and accordingly, the purchase price
has been allocated to the fair value of net assets acquired and resulted in a
preliminary allocation to goodwill of approximately $6,400,000. In connection
with this acquisition, the Company also recorded capitalized lease obligations
of $2,608,000. The 1995 financial statements reflect the results of operations
of such restaurants subsequent to the date of acquisition. Results of operations
of such restaurants prior to acquisition were not material in relation to the
Company's operating results for the periods shown.
9
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3. Commitments and Contingencies
Litigation: The Company is involved in various legal actions arising in the
normal course of business. After taking into consideration legal counsel's
evaluation of such actions, management is of the opinion that the outcome of
these actions will not have a material adverse effect on the Company's
consolidated financial position or results of operations.
Franchise financing: The Company entered into an agreement in 1992 with a
financing source to provide up to $75,000,000 of financing to Company
franchisees to fund development of new franchise restaurants. Up to $25,000,000
of the $75,000,000 available under the agreement could be used by franchisees
for short-term construction financing. The Company provided a limited guaranty
of loans made under the agreement. The Company's recourse obligation of the
construction financing portion of the facility is capped at $2,500,000. When the
short-term construction loans are converted to long-term loans, the Company's
maximum recourse obligation is reduced from 10% to 6.7% of the $75,000,000
facility. The Company's recourse obligations are reduced beginning in the second
year of each long-term loan and thereafter decrease ratably to zero after the
seventh year of each loan. At June 25, 1995, approximately $43,141,000 had been
funded through this financing source and various loans were in process. The
Company has not been apprised of any defaults under this agreement by
franchisees. This agreement expired on December 31, 1994 and was not renewed,
although some loan commitments as of the termination date may thereafter be
funded until September 30, 1995.
Severance agreements: The Company has severance and employment agreements with
certain officers providing for severance payments to be made in the event the
employee resigns or is terminated related to a change in control (as defined in
the agreements). If the severance payments had been due as of June 25, 1995, the
Company would have been required to make payments aggregating approximately
$5,200,000. In addition, the Company has severance and employment agreements
with certain officers which contain severance provisions not related to a change
in control, and such provisions would have required aggregate payments of
approximately $3,100,000 if such officers had been terminated as of June 25,
1995.
4. Financing
In February 1995, the Company obtained a $20,000,000 unsecured bank revolving
credit facility which expires on December 31, 1997. The revolving credit
facility bears interest at LIBOR plus 0.60% or the prime rate, at the Company's
option, and requires the Company to pay a commitment fee of 0.15% on any unused
portion of the facility. As of June 25, 1995, $5,000,000 was outstanding under
the facility. The revolving credit facility contains various covenants and
restrictions which, among other things, require the maintenance of a stipulated
fixed charge coverage ratio and minimum consolidated net worth, as defined, and
also limit additional indebtedness in excess of specified amounts. The revolving
credit facility also restricts the amount of retained earnings available for the
payment of cash dividends. The Company is currently in compliance with such
covenants.
5. Subsequent Event
On July 28, 1995, the Company completed a public offering of its common stock
consisting of 2,100,000 shares sold by the Company and 300,000 shares sold by
certain stockholders of the Company. Net proceeds of approximately $52,578,000,
after estimated expenses, were received from the offering. In addition, the
Company and the selling stockholders have granted the underwriters an option to
purchase 315,000 and 45,000 shares, respectively, to cover over-allotments,
which is expected to be exercised within 30 days. The net proceeds of the
offering will be used to retire approximately $12,500,000 of secured debt
assumed in certain recent acquisitions, to repay the outstanding balance of the
Company's revolving credit facility (which as of July 31, 1995 was $5,000,000),
to fund the development of Company owned restaurants, and for general corporate
purposes.
10
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Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
General
The Company's revenues are generated from two primary sources: Company
restaurant sales (food and beverage sales) and franchise income consisting of
franchise restaurant royalties (generally 4% of each franchise restaurant's
monthly gross sales) and franchise fees (which typically range from $30,000 to
$35,000 per restaurant opened). Beverage sales include sales of alcoholic
beverages, while non-alcoholic beverages are included in food sales. Certain
expenses (food and beverage, labor, direct and occupancy costs, and pre-opening
expenses) relate directly to Company restaurants, and other expenses (general
and administrative and amortization expenses) relate to both Company restaurants
and franchise operations. The Company's policy is to expense pre-opening costs
as incurred.
Beginning in fiscal 1995, the cost of meals provided to employees and other
complimentary meals have been classified as labor costs and direct and occupancy
costs, respectively. Previously, the retail price of such meals was reflected in
Company restaurant sales with corresponding amounts reflected as labor costs or
direct and occupancy costs. The consolidated financial statements for fiscal
1994 have been reclassified to conform to the presentation adopted in fiscal
1995, the effects of which were not material.
The Company operates on a 52 or 53 week fiscal year ending on the last Sunday in
December. The Company's fiscal quarters ended June 25, 1995 and June 26, 1994
each contained 13 weeks, and are referred to hereafter as the "1995 quarter" and
the "1994 quarter," respectively. The 26 week periods ended June 25, 1995 and
June 26, 1994 are referred to hereafter as the "1995 year-to-date period" and
the "1994 year-to-date period," respectively.
Recent Acquisitions
On October 24, 1994, a wholly-owned subsidiary of the Company merged with and
into Pub Ventures of New England, Inc. ("PVNE"), the Company's franchisee for
the New England area, referred to herein as the "PVNE Merger." As a result of
the PVNE Merger, PVNE became a wholly-owned subsidiary of the Company. The PVNE
Merger was accounted for as a pooling of interests and, accordingly, the
accompanying consolidated financial statements include the accounts and
operations of the merged entities for all periods presented. At the time of the
PVNE Merger, PVNE operated 14 Applebee's restaurants.
On March 23, 1995, a wholly-owned subsidiary of the Company merged with and into
Innovative Restaurant Concepts, Inc. ("IRC"), referred to herein as the "IRC
Merger." As a result of the IRC Merger, IRC became a wholly-owned subsidiary of
the Company. The IRC Merger was accounted for as a pooling of interests and,
accordingly, the accompanying consolidated financial statements include the
accounts and operations of the merged entities for all periods presented. At the
time of the IRC Merger, IRC operated 17 restaurants, including 13 Rio Bravo
Cantina restaurants, and four other specialty restaurants, comprised of Ray's on
the River, two Green Hills Grille restaurants, and the Rio Bravo Grill. During
1993, IRC acquired six Casa Gallardo restaurant sites which were subsequently
converted to Rio Bravo Cantina restaurants. The four specialty restaurants and
the Casa Gallardo restaurants prior to their conversion to Rio Bravo Cantina
restaurants are included in "specialty restaurants."
11
<PAGE>
On April 3, 1995, the Company acquired the operations and assets of five
franchise restaurants in the Philadelphia metropolitan area, referred to herein
as the "Philadelphia Acquisition." The Philadelphia Acquisition was accounted
for as a purchase and, accordingly, the results of operations of such
restaurants have been reflected in the 1995 financial statements subsequent to
the date of acquisition.
Results of Operations
The following table sets forth, for the periods indicated, information derived
from the Company's consolidated statements of earnings expressed as a percentage
of total operating revenues, except where otherwise noted.
<TABLE>
<CAPTION>
13 Weeks Ended 26 Weeks Ended
June 25, June 26, June 25, June 26,
1995 1994 1995 1994
<S> <C> <C> <C> <C>
Revenues:
Company restaurant sales................................ 87.3% 88.2% 87.4% 88.2%
Franchise income........................................ 12.7 11.8 12.6 11.8
Total operating revenues............................. 100.0% 100.0% 100.0% 100.0%
Cost of Company restaurant sales (as a percentage of
Company restaurant sales):
Food and beverage....................................... 28.7% 29.3% 28.6% 29.5%
Labor................................................... 31.5 31.8 31.7 32.2
Direct and occupancy.................................... 24.3 24.0 23.9 24.3
Pre-opening expense..................................... 0.6 1.1 0.8 0.7
Total cost of Company restaurant sales............... 85.1% 86.2% 85.0% 86.7%
General and administrative expenses........................ 11.3% 11.3% 11.5% 11.7%
Merger costs............................................... -- -- 1.1 --
Amortization of intangible assets.......................... 0.7 0.8 0.7 0.9
Loss on disposition of restaurants and equipment........... 0.1 0.7 0.1 0.4
Operating earnings......................................... 13.6 11.1 12.3 10.5
Other income (expense):
Investment income....................................... 0.2 0.3 0.3 0.4
Interest expense........................................ (0.8) (0.6) (0.8) (0.6)
Other income............................................ 0.1 0.1 0.1 0.1
Total other income (expense)......................... (0.5) (0.2) (0.4) (0.1)
Earnings before income taxes............................... 13.1 10.9 11.9 10.4
Income taxes (including pro forma provision
for income taxes of pooled companies)................... 5.0 4.1 5.0 4.0
Pro forma net earnings..................................... 8.1% 6.8% 6.9% 6.4%
</TABLE>
12
<PAGE>
The following table sets forth certain unaudited restaurant data relating to
Company and franchise restaurants, as reported to the Company by franchisees.
<TABLE>
<CAPTION>
13 Weeks Ended 26 Weeks Ended
June 25, June 26, June 25, June 26,
1995 1994 1995 1994
<S> <C> <C> <C> <C>
Number of restaurant openings:
Applebee's:
Company owned or operated......................... 5 6 13 8
Franchise......................................... 36 28 58 43
Total Applebee's.................................. 41 34 71 51
Rio Bravo Cantinas.................................... 1 1 2 1
Restaurants open (end of period):
Applebee's:
Company owned or operated(1)...................... 115 83 115 83
Franchise......................................... 461 328 461 328
Total Applebee's.................................. 576 411 576 411
Rio Bravo Cantinas.................................... 14 10 14 10
Specialty restaurants(2).............................. 4 5 4 5
Total................................................. 594 426 594 426
Weighted average weekly sales per restaurant:
Applebee's:
Company owned..................................... $40,459 $40,526 $40,506 $40,506
Company owned or operated(1)...................... $40,236 $39,958 $40,262 $39,855
Franchise......................................... $42,119 $41,593 $41,886 $41,290
Total Applebee's.................................. $41,739 $41,259 $41,564 $40,997
Rio Bravo Cantinas.................................... $70,161 $77,709 $66,805 $73,279
Change in comparable restaurant sales(3):
Applebee's:
Company owned..................................... 0.1% 3.9% 1.7% 5.0%
Company owned or operated(1)...................... 0.3% 3.4% 1.9% 4.3%
Franchise......................................... 2.3% 3.1% 2.3% 3.6%
Total Applebee's.................................. 1.9% 3.1% 2.2% 3.8%
Rio Bravo Cantinas.................................... 1.0% 12.0% 1.0% 13.2%
<FN>
- --------
(1) Company owned or operated data include two Texas restaurants operated by the
Company under a management agreement since July 1990.
(2) Specialty restaurants as of June 26, 1994 included one restaurant which was
subsequently converted to a Rio Bravo Cantina restaurant.
(3) When computing comparable restaurant sales, restaurants open for at least
18 months are compared from period to period.
</FN>
</TABLE>
13
<PAGE>
Company Restaurant Sales. Company restaurant sales for the 1995 and 1994
quarters and the 1995 and 1994 year-to-date periods were as follows (in
thousands):
<TABLE>
<CAPTION>
13 Weeks Ended
June 25, June 26, Increase
1995 1994 (Decrease)
<S> <C> <C> <C>
Applebee's........................ $ 57,574 $ 40,898 $ 16,676
Rio Bravo Cantinas................ 11,927 10,102 1,825
Specialty restaurants............. 3,619 3,859 (240)
Total.......................... $ 73,120 $ 54,859 $ 18,261
26 Weeks Ended
June 25, June 26, Increase
1995 1994 (Decrease)
Applebee's........................ $109,773 $ 78,538 $ 31,235
Rio Bravo Cantinas................ 22,313 18,100 4,213
Specialty restaurants............. 7,055 8,068 (1,013)
Total.......................... $139,141 $104,706 $ 34,435
</TABLE>
Overall Company restaurant sales increased 33% in both the 1995 quarter and
year-to-date period. Sales for Applebee's restaurants increased 41% and 40% in
the 1995 quarter and year-to-date period, respectively, due primarily to Company
restaurant openings, sales from the five Philadelphia restaurants acquired in
April 1995, and increases in comparable restaurant sales. The increases in sales
for the Rio Bravo Cantina restaurants resulted primarily from Company restaurant
openings and increases in comparable restaurant sales. The decrease in sales for
the specialty restaurants in both the 1995 quarter and 1995 year-to-date period
was due to the conversion of two Casa Gallardo restaurants to Rio Bravo Cantina
restaurants subsequent to the end of the first quarter of 1994.
Comparable restaurant sales at Company owned Applebee's restaurants increased by
0.1% and 1.7% in the 1995 quarter and the 1995 year-to-date period,
respectively. When computing comparable restaurant sales, restaurants open for
at least 18 months are compared from period to period. The increase in
comparable restaurant sales was due in part to a menu price increase implemented
in mid-July 1994 in selected markets for certain menu items. The Company expects
comparable restaurant sales increases to be minimal for the remainder of the
1995 fiscal year for Company owned Applebee's restaurants, as many of its
restaurants are operating near sales capacity and are experiencing increased
competition in certain markets. Weighted average weekly sales at Company owned
Applebee's restaurants in both the 1995 quarter and 1995 year-to-date period
were basically flat in comparison to the 1994 quarter and 1994 year-to-date
period. Excluding the southern California and Texas markets, weighted average
weekly sales at Company owned Applebee's restaurants increased 0.8% from $42,982
in the 1994 quarter to $43,340 in the 1995 quarter and increased 2.8% from
$42,500 in the 1994 year-to-date period to $43,699 in the 1995 year-to-date
period.
Comparable restaurant sales for the Rio Bravo Cantina restaurants increased by
1.0% in both the 1995 quarter and the 1995 year-to-date period, although
weighted average weekly sales declined from $77,709 in the 1994 quarter to
$70,161 in the 1995 quarter and from $73,279 in the 1994 year-to-date period to
$66,805 in the 1995 year-to-date period. The decrease in weighted average weekly
sales in both periods was due primarily to the lower than average sales volumes
of three of the new restaurants opened subsequent to the end of the first
quarter of 1994. Two of the restaurants were opened in a market where there was
already an existing Rio Bravo Cantina restaurant and one of the other new
restaurants is open only for dinner.
14
<PAGE>
Weighted average weekly sales at Company owned Applebee's restaurants continue
to be adversely affected by the southern California and Texas territories where
the weighted average weekly sales of Company owned Applebee's restaurants were
approximately $27,000 and $33,000, respectively, in the 1995 quarter and $27,000
and $32,000, respectively, in the 1995 year-to-date period. When entering highly
competitive new markets, or territories where the Company has not yet
established a market presence, early sales levels and profit margins are
expected to be lower than in markets where the Company has a concentration of
restaurants or has established customer awareness. While sales and operating
margins in the Texas market have been improving, the operations of the Company
owned restaurants in these markets negatively impacted overall cost of sales
excluding pre-opening expense (as a percentage of Company restaurant sales) by
approximately 2.0% in both the 1995 quarter and the 1994 quarter as well as the
1995 year-to-date period and the 1994 year-to-date period. The Company believes
that the opening of additional restaurants in these territories will result in
increased market penetration, advertising effectiveness and customer awareness,
thereby ultimately increasing restaurant sales levels and related margins.
Franchise Income. Franchise income increased $3,323,000 (45%) from $7,358,000 in
the 1994 quarter to $10,681,000 in the 1995 quarter. Franchise income increased
$6,083,000 (43%) from $14,016,000 in the 1994 year-to-date period to $20,099,000
in the 1995 year-to-date period. Such increases were due primarily to the
increased number of franchise restaurants operating during the 1995 quarter and
year-to-date period as compared to the 1994 quarter and year-to-date period.
Franchise restaurant weighted average weekly sales increased 1.3% and 1.4% in
the 1995 quarter and 1995 year-to-date period, respectively, and comparable
franchise restaurant sales increased 2.3% in both the 1995 quarter and 1995
year-to-date period. The remaining increases in franchise income were due to
increases in franchise fees of $252,000 in the 1995 quarter and $447,000 in the
1995 year-to-date period resulting from increases in the number of franchise
restaurant openings from 28 in the 1994 quarter to 36 in the 1995 quarter and
from 43 in the 1994 year-to-date period to 58 in the 1995 year-to-date period.
Cost of Company Restaurant Sales. Food and beverage costs decreased from 29.3%
and 29.5% in the 1994 quarter and 1994 year-to-date period, respectively, to
28.7% and 28.6% in the 1995 quarter and 1995 year-to-date period, respectively.
These decreases resulted from the menu price increase implemented in mid-July
1994 at Applebee's restaurants and increased operational efficiencies. Such
decreases were partially offset by an increase in food costs in the second
quarter of 1995 as a result of the winter flooding in California which caused
shortages of certain produce items and a significant increase in related costs.
The Company did not increase its menu prices to offset the effects of such
increased costs. In addition, food and beverage costs were negatively impacted
by the effect of the continued decline in beverage sales, as a percentage of
overall Company restaurant sales, from 20.9% and 21.3% in the 1994 quarter and
1994 year-to-date period, respectively, to 19.4% in both the 1995 quarter and
1995 year-to-date period, as margins on alcoholic beverage sales are higher than
those for food sales. Management believes that the reduction in beverage sales
is due in part to the continuation of the overall trend toward increased
awareness of responsible alcohol consumption.
Labor costs decreased from 31.8% and 32.2% in the 1994 quarter and 1994
year-to-date period, respectively, to 31.5% and 31.7% in the 1995 quarter and
1995 year-to-date period, respectively. Labor costs, as a percentage of sales,
in both the 1995 quarter and 1995 year-to-date period were positively impacted
by an overall reduction in workers' compensation insurance costs due to
favorable historical claims experience, and improved hourly labor efficiency,
but were adversely affected by the lower sales volumes in the southern
California and Texas markets.
15
<PAGE>
Direct and occupancy costs increased from 24.0% in the 1994 quarter to 24.3% in
the 1995 quarter, but decreased from 24.3% in the 1994 year-to-date period to
23.9% in the 1995 year-to-date period. The increase in the 1995 quarter was due
primarily to increased levels of advertising expenditures for Applebee's
restaurants resulting from the timing of promotional campaigns. The decrease in
the 1995 year-to-date period was due primarily to a decrease in rent expense
resulting from an increase in the proportion of owned versus leased properties
and lower levels of advertising expenditures. The southern California and Texas
markets continue to have a negative impact on overall direct and occupancy costs
due to the absorption of such expenses, which are primarily fixed in nature,
over a lower sales base in those markets.
General and Administrative Expenses. General and administrative expenses were
11.3% in both the 1994 quarter and the 1995 quarter and decreased from 11.7% in
the 1994 year-to-date period to 11.5% in the 1995 year-to-date period. The
decrease in the year-to-date period was due primarily to the absorption of
general and administrative expenses over a larger revenue base. General and
administrative expenses increased by $2,440,000 and $4,475,000 during the 1995
quarter and 1995 year-to-date period, respectively, compared to the 1994 quarter
and 1994 year-to-date period, respectively. These increases resulted from the
costs of additional personnel associated with the Company's development efforts
and system-wide expansion, higher incentive compensation expense, and related
fringe benefit costs. A portion of the increase was due to an increase in the
Company's training costs relating to new Company and franchise restaurant
openings and the training of restaurant managers.
The Company continues to realize operating losses or nominal income for the
Texas restaurants it operates under an agreement with a former franchisee.
Income of $41,000 and $69,000 was realized during the 1995 quarter and 1995
year-to-date period, respectively, while losses of $83,000 and $245,000 were
realized during the 1994 quarter and 1994 year-to-date period, respectively.
Such amounts are included in general and administrative expenses in the
accompanying consolidated statements of operations. The increase in
profitability in both the 1995 quarter and 1995 year-to-date period resulted
primarily from the closing of one of the three Texas restaurants during the
second quarter of 1994. The Company is continuing to evaluate its future
strategies for the two remaining restaurants.
The Company is using assets owned by a former Texas franchisee in the operation
of these restaurants under a purchase rights agreement which required the
Company to make certain payments to the franchisee's lender. In 1991, a dispute
arose between the lender and the Company over the amount of the payments due the
lender. Based upon a then current independent appraisal, the Company offered to
settle the dispute and purchase the assets for $1,000,000 in 1991. The lender
rejected the Company's offer and claimed that the Company had guaranteed the
entire $2,400,000 debt of the franchisee. In November 1992, the lender was
declared insolvent by the FDIC and has since been liquidated. The Company has
been contacted by the FDIC, and in 1993, the Company offered to settle the issue
and purchase the assets at the three restaurants then being operated for
$182,000. The Company has since closed one of the restaurants and has recently
lowered its offer to $120,000 to settle the issue and purchase the assets at the
two remaining restaurants. The Company does not anticipate that the resolution
of this issue will have a material adverse impact on its financial position or
results of operations. However, in the event that the Company were to pay an
amount determined to be in excess of the fair market value of the assets, the
Company may be required to recognize a loss at the time of such payment.
16
<PAGE>
In January 1991, the Company's franchisee in Houston, Texas declared bankruptcy
and as a result, the management of the five franchise restaurants then operated
was transferred to a prospective franchisee who subsequently closed two
restaurants. In August 1992, the prospective franchisee was granted a
development agreement for the Houston territory and franchise agreements for
such restaurants, and in October 1993, the Company provided certain financial
assistance to this franchisee in the form of a loan and a renegotiated royalty
payment obligation. The Company also subsequently provided a guarantee for an
equipment lease. The new franchisee filed for bankruptcy protection in April
1995. The Company has been monitoring the franchisee's performance and has
established reserves which it believes are adequate relating to any receivables
from this franchisee and does not anticipate that the franchisee's financial
difficulties will have a material adverse effect on the Company's financial
position or results of operations.
Merger Costs. The Company incurred merger costs of $1,770,000 in the first
quarter of 1995 relating to the IRC Merger. The impact of these costs on pro
forma net earnings per common share was approximately $0.06 in the first quarter
of 1995 and the 1995 year-to-date period.
Loss on Disposition of Restaurants and Equipment. During the 1994 quarter, the
Company recognized a loss of $223,000 resulting from the closure and termination
of the lease agreement of one restaurant. This loss was partially offset by a
gain of $54,000 resulting from the sale of one restaurant to a new franchisee.
In addition, during the 1994 quarter and 1994 year-to-date period, the Company
began replacing restaurant point-of-sale systems with upgraded systems
technology which resulted in a write-off of approximately $300,000 and $350,000
of costs of the existing equipment in the 1994 quarter and 1994 year-to-date
period, respectively.
Interest Expense. Interest expense increased in the 1995 quarter and 1995
year-to-date period compared to the 1994 quarter and 1994 year-to-date period
primarily as a result of interest related to the $20,000,000 of senior unsecured
notes issued in the second quarter of 1994 and borrowings under the revolving
credit facility during the 1995 quarter.
Income Taxes. The effective income tax rate, as a percentage of earnings before
income taxes, was 38.1% and 41.6% in the 1995 quarter and the 1995 year-to-date
period, respectively, compared to 37.3% and 38.1% in the 1994 quarter and the
1994 year-to-date period, respectively. Prior to September 7, 1994, PVNE was
classified as an S Corporation and accordingly, stockholders were responsible
for paying their proportionate share of federal and certain state income taxes.
In addition, the combined earnings of IRC prior to the IRC Merger included
earnings of limited partnerships which were not taxable entities for federal and
state income tax purposes. The accompanying consolidated statements of earnings
reflect provisions for income taxes on a pro forma basis as if the Company were
liable for federal and state income taxes on PVNE's earnings prior to September
7, 1994 and the earnings of IRC's limited partnerships prior to the IRC Merger
at statutory rates. The increase in the Company's overall effective tax rate in
the 1995 year-to-date period was due to the non-deductibility of the merger
costs incurred in the first quarter of 1995 relating to the IRC Merger.
Excluding such merger costs, the effective income tax rate would have been 38.0%
in the 1995 year-to-date period.
17
<PAGE>
Liquidity and Capital Resources
The Company's need for capital resources historically has resulted from and for
the foreseeable future is expected to relate primarily to the construction and
acquisition of restaurants. Such capital has been provided by public stock
offerings, debt financing, and ongoing Company operations, including cash
generated from Company and franchise operations, credit from trade suppliers,
real estate lease financing, and landlord contributions to leasehold
improvements. The Company has also used its common stock as consideration in the
acquisition of restaurants. In addition, the Company assumed debt or issued new
debt in connection with the PVNE and IRC Mergers.
Capital expenditures were $48,734,000 in 1994 (which includes the acquisition of
two franchise restaurants) and $29,082,000 in the 1995 year-to-date period
(which includes $9,673,000 related to the Philadelphia Acquisition). The Company
currently expects to open at least 27 Applebee's restaurants and four Rio Bravo
Cantina restaurants in 1995 and approximately 30 Applebee's restaurants and five
Rio Bravo Cantina restaurants in 1996. The Company presently anticipates capital
expenditures, including the Philadelphia Acquisition, of between $65,000,000 and
$70,000,000 in 1995 and between $60,000,000 and $65,000,000 in 1996 primarily
for the development of new restaurants, refurbishments of and capital
replacements for existing restaurants, and enhancements to information systems
for the Company's restaurants and corporate office. The amount of actual capital
expenditures will be dependent upon the proportion of leased versus owned
properties, among other things. In addition, if the Company opens more
restaurants than it currently anticipates or acquires additional restaurants,
its capital requirements will increase accordingly.
In June 1994, the Company completed a $20,000,000 senior unsecured private debt
placement with institutional lenders unaffiliated with the Company. In addition,
in February 1995, the Company obtained additional long-term debt financing in
the form of a $20,000,000 unsecured bank revolving credit facility which expires
on December 31, 1997. The debt agreements contain various covenants and
restrictions which, among other things, require the maintenance of a stipulated
fixed charge coverage ratio and minimum consolidated net worth, as defined, and
also limit additional indebtedness in excess of specified amounts. The debt
agreements also restrict the amount of retained earnings available for the
payment of cash dividends. At June 25, 1995, $26,175,000 of retained earnings
was available for the payment of cash dividends. The Company has been and is
currently in compliance with the covenants of all of its debt agreements.
As of June 25, 1995, the Company held liquid assets totaling $9,036,000,
consisting of cash and cash equivalents ($3,880,000) and short-term investments
($5,156,000), and had $5,000,000 outstanding under the revolving credit
facility. On July 28, 1995, the Company completed a public offering of its
common stock consisting of 2,100,000 shares sold by the Company and 300,000
shares sold by certain stockholders of the Company. Net proceeds of
approximately $52,578,000, after estimated expenses, were received from the
offering. In addition, the Company and the selling stockholders have granted the
underwriters an option to purchase 315,000 and 45,000 shares, respectively, to
cover over-allotments, which is expected to be exercised within 30 days. The net
proceeds of the offering will be used to repay approximately $12,500,000 of debt
assumed in connection with the PVNE and IRC Mergers, to repay the outstanding
balance of the Company's revolving credit facility (which as of July 31, 1995
was $5,000,000), to fund the development of Company owned restaurants, and for
general corporate purposes. The Company believes that the proceeds from this
offering, liquid assets, and cash generated from operations, combined with
borrowings available under the $20,000,000 revolving credit facility, will
provide sufficient funds for its capital requirements for the foreseeable
future.
Inflation
Substantial increases in costs and expenses, particularly food, supplies, labor
and operating expenses could have a significant impact on the Company's
operating results to the extent that such increases cannot be passed along to
customers. The Company does not believe that inflation has materially affected
its operating results during the past three years.
18
<PAGE>
PART II. OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
The Company's Annual Meeting of Stockholders was held on May 26,
1995. The following matters were submitted to a vote of the
Stockholders:
Proposal I. It was proposed that the Company's Certificate of
Incorporation be amended to classify the Board of Directors into
three classes, each with a term of three years.
Proposal II. It was proposed that the Company's 1989 Stock Option
Plan be amended to increase the number of shares of Common Stock
subject to option thereunder by 1,500,000 shares.
Proposal III. It was proposed that the Company's 1995 Equity
Incentive Plan be adopted.
The results of the voting on the foregoing matters were as follows:
<TABLE>
<CAPTION>
Affirmative Negative Broker
Proposal Votes Votes Abstentions Non-Votes
<S> <C> <C> <C> <C>
I 14,264,205 9,661,162 56,529 2,640,813
II 19,267,703 4,740,467 93,179 2,521,360
III 18,431,384 5,449,454 101,359 2,640,512
</TABLE>
Since Proposal I required the affirmative votes of 14,087,661 shares
and Proposals II and III required the affirmative votes of 13,311,355
shares to be adopted, each Proposal was affirmatively adopted by the
Stockholders.
Item 6. Exhibits and Reports on Form 8-K
(a) The Exhibits listed on the accompanying Exhibit Index are
filed as part of this report.
(b) The Company filed a report on Form 8-K on April 4, 1995
announcing the completion of the acquisition of Innovative
Restaurant Concepts, Inc. and its affiliates on March 23,
1995.
The Company filed a report on Form 8-K on May 17, 1995 which
included consolidated financial statements for the fiscal
years ended December 25, 1994, December 26, 1993 and December
27, 1992 as restated for the merger with Innovative Restaurant
Concepts, Inc., and the combined financial statements of
Innovative Restaurant Concepts, Inc. and its affiliates for
the fiscal years ended December 25, 1994, December 26, 1993
and December 27, 1992.
19
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
APPLEBEE'S INTERNATIONAL, INC.
(Registrant)
Date: August 3, 1995 By: /s/ Abe J. Gustin, Jr.
Abe J. Gustin, Jr.
Chairman and Chief Executive Officer
Date: August 3, 1995 By: /s/ George D. Shadid
George D. Shadid
Executive Vice President and
Chief Financial Officer
(principal financial officer)
Date: August 3, 1995 By: /s/ David R. Smith
David R. Smith
Vice President and Controller
(principal accounting officer)
20
<PAGE>
APPLEBEE'S INTERNATIONAL, INC.
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
3.1 Certificate of Incorporation, as amended, of Registrant.
3.2 Restated and Amended By-laws of the Registrant.
10.1 Amendment No. 2 to Employment Agreement with Abe J. Gustin, Jr.,
dated June 1, 1995.
10.2 Amendment No. 3 to Employment Agreement with Ronald B. Reck, dated
June 1, 1995.
27 Financial Data Schedule.
21
Filed with the Office of the
Secretary of State of Delaware
on October 30, 1987 at 10:00 a.m.
CERTIFICATE OF INCORPORATION
OF
APPLEBEE'S INTERNATIONAL, INC.
* * * * *
1. The name of the corporation is:
APPLEBEE'S INTERNATIONAL, INC.
2. The address of its registered office 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 such address is The Corporation Trust
Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporation may be
organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation
shall have authority to issue is five million (5,000,000) and the par value of
each of such shares is One Cent ($.01) amounting in the aggregate to Fifty
Thousand Dollars ($50,000.00).
5A. The name and mailing address of each incorporator is as
follows:
NAME MAILING ADDRESS
L.J. Vitalo 1209 Orange Street
Wilmington, Delaware 19801
J.A. Grodzicki 1209 Orange Street
Wilmington, Delaware 19801
S.J. Queppet 1209 Orange Street
Wilmington, Delaware 19801
5B. The name and mailing address of each person, who is to
serve as director until the first annual meeting of the stockholders or until a
successor is elected and qualified, is as follows:
<PAGE>
NAME MAILING ADDRESS
John Hamra 3929 Broadway
Kansas City, Missouri 64111
Nad Fardeece 4748 Mill Run Road
Dallas, Texas 75244
Abe J. Gustin, Jr. 3929 Broadway
Kansas City, Missouri 64111
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers
conferred by statute, the board of directors is expressly authorized to make,
alter or repeal the by-laws of the corporation.
8. Elections of directors need not be by written ballot unless
the by-laws of the corporation shall so provide.
Meetings of the 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 statutes) 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.
9. The corporation reserves the right to amend, alter, change
or repeal any provisions contained in this 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.
WE, THE UNDERSIGNED, being each of the incorporators
hereinbefore named, for the purpose of forming a corporation pursuant to the
General Corporation Law of the State of Delaware, do make this certificate,
hereby declaring and certifying that this is our act and deed and the facts
herein stated are true, and accordingly have hereunto set our hands this 30th
day of October, 1987.
/s/ L.J. Vitalo
L.J. Vitalo
/s/ J.A. Grodzicki
J.A. Grodzicki
/s/ S.J. Queppet
S. J. Queppet
<PAGE>
Filed with the Office of the
Secretary of State of Delaware
on March 7, 1988 at 10:00 a.m.
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Applebee's International, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Applebee's
International, Inc. resolutions were duly adopted setting forth a proposed
amendment of the Certificate of Incorporation of said corporation, declaring
said amendment to be advisable and calling a meeting of the stockholders of said
corporation for consideration thereof. The resolution setting forth the proposed
amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this Corporation be
amended by changing the article thereof numbered "4" so that, as
amended said Article 4 shall be and read as follows:
"4. The total number of shares of stock which the corporation
shall have authority to issue is ten million (10,000,000) shares which
shall be divided into two classes as follows:
5,000,000 shares of Preferred Stock with a par value of
One Cent ($0.01) per share and
5,000,000 shares of Common Stock with a par value of One
Cent ($0.01) per share which amounts in the aggregate to One
Hundred Thousand Dollars ($100,000.00).
The designations, voting powers, preferences and relative,
participating, optional or other special rights, and qualification,
limitations or restrictions of the above classes of stock are as
follows:
I. Preferred Stock
A. Issuance in Series. Shares of Preferred Stock may be issued in
one or more series at such time or times, and for such
consideration or considerations as the Board of Directors may
determine. All shares of any one series of Preferred Stock
will be identical with each other in all respects, except that
shares of one series issued at different times may differ as
to dates from which dividends thereon may be cumulative.
B. Authority of the Board with Respect to Series. The Board of
Directors is authorized, at any time and from time to time, to
provide for the issuance of shares of Preferred Stock in one
or more series with such designations, voting powers,
preferences and relative, participating, optional or other
special rights and qualifications, limitations or restrictions
thereof as are stated and expressed in the resolution or
resolutions providing for the issue thereof adopted by the
Board of Directors, and as are not stated and expressed in the
Certificate of Incorporation or any amendment thereto
including, but not limited to, determination of any of the
following:
(a) the distinctive serial designation and the number
of shares constituting a series;
(b) the dividend rate or rates, whether dividends are
cumulative and , if so, from which date, the payment date or
dates for dividends, and the participating or other special
rights, if any, with respect to dividends, including any
preference as to the dividend payments granted to one or more
series which may be superior in right to any other series;
(c) the voting powers, full or limited, if any, of
the shares of the series;
(d) whether the shares are redeemable and, if so, the
price or prices at which, and the terms and conditions on
which, the shares may be redeemed;
(e) the amount or amounts payable upon the shares in
the event of voluntary or involuntary liquidation,
dissolutions, distributions of assets or winding up of the
Corporation prior to any payment or distribution of the assets
of the Corporation to any class or classes of stock of the
Corporation ranking junior to the Preferred Stock;
(f) whether the shares are entitled to the benefit of
a sinking or retirement fund to be applied to the purchase or
redemption of shares of a series and, if so entitled, the
amount of the fund and the manner of its application,
including the price or prices at which the shares may be
redeemed or purchased through the application of the fund;
(g) whether the shares are convertible into, or
exchangeable for, shares of any other class or classes or of
any other series of the same or any other class or classes of
stock of the Corporation and, if so convertible or
exchangeable, the conversion price or prices, or the rates of
exchange, and the adjustments thereof, if any, at which the
conversion or exchange may be made, and any other terms and
conditions of the conversion or exchange; and
(h) any other preferences, privileges and powers, and
relative participating, optional or other special rights, and
qualifications, limitations or restrictions of a series, as
the Board of Directors may deem advisable and as are not
inconsistent with the provisions of the Certificate of
Incorporation or any amendment thereto.
C. Dividend. Before any dividends on any class or classes of
stock of the Corporation ranking junior to the Preferred Stock
(other than dividends payable in shares of any class or
classes of stock of the corporation ranking junior to the
Preferred Stock) may be declared or paid or set apart for
payment, the holders of shares of Preferred Stock of each
series are entitled to such cash dividends, but only when and
as declared by the Boards of Directors out of funds legally
available therefor, as they may be entitled to in accordance
with the resolution or resolutions adopted by the Board of
Directors providing for issue of the series, payable on such
dates in each year as may be fixed in the resolution or
resolutions. The term "class or classes of stock of the
Corporation ranking junior to the Preferred Stock" means the
Common Stock and any other class or classes of stock of the
Corporation hereafter authorized which rank junior to the
Preferred Stock as to dividends or upon liquidation.
D. Required Shares. Shares of Preferred Stock which have been
issued and reacquired in any manner by the Corporation
(excluding, until the corporation elects to retire them,
shares which are held as treasury shares but including shares
redeemed, shares purchased and retired and shares which have
been converted into shares of Commons Stock) will have the
status of authorized and unissued shares of Preferred Stock
and may be reissued.
<PAGE>
II. Common Stock
A. Dividends. Subject to the preferential rights of the Preferred
Stock, the holders of the Common Stock are entitled to
receive, to the extent permitted by law, such dividends as may
be declared from time to time by the Board of Directors.
B. Liquidation. In the event of the voluntary or involuntary
liquidation, dissolution, distribution of assets or winding up
of the Corporation, after distribution in full of the
preferential amounts, if any, to be distributed to the holder
of shares of Preferred Stock, holders of Common Stock shall be
entitled to receive all of the remaining assets of the
Corporation of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively. The Board of Directors
may distribute in kind to the holders of Common Stock such
remaining assets of the Corporation or may sell, transfer or
otherwise dispose of all or any part of such remaining assets
to any other corporation, trust or other entity and receive
payment therefore in cash, stock or obligations of such other
corporation, trust or other entity, or any combination
thereof, and may sell all or any part of the consideration so
received and distribute any balance thereof in kind to holders
of Common Stock. The merger or consolidation of the
corporation into or with any other corporation, or the merger
of any other corporation into it, or any purchase or
redemption of shares of stock of the Corporation of any class,
shall not be deemed to be a dissolution, liquidation or
winding up of the Corporation for the purposes of this
paragraph.
C. Voting Rights. Except as may be otherwise required by law or
the Certificate of Incorporation or any amendment thereto,
each holder of Common Stock has one vote in respect to each
share of Common Stock held by him of record on the books of
the corporation on all matters voted on by the stockholders.
III. Other Provisions.
A. Preemptive Rights. No stockholder shall have any preemptive
right to subscribe to an additional issue of stock of any
class or series or to any securities of the Corporation
convertible into such stock.
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, a special meeting of the stockholders of said Corporation was duly
called and held upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware, at which meeting a necessary number of
shares as required by the statute were present and voted in favor of said
amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of said corporation shall not be reduced under
or by reason of said amendment.
<PAGE>
IN WITNESS WHEREOF, said Applebee's International, Inc. has caused its
corporate seal to be hereunto affixed and this certificate to be signed by John
Hamra, its President, and attested to by Johyne Reck, its Secretary, this 2nd
day of March, 1988.
APPLEBEE'S INTERNATIONAL, INC.
By: /s/ John Hamra
John Hamra, President
(CORPORATE SEAL)
ATTEST:
/s/ Johyne Reck
Johyne Reck, Secretary
STATE OF MISSOURI )
) SS.
COUNTY OF JACKSON )
On this 2nd day of March , 1988, before me, Patricia A. Kerr, a Notary
Public in and for said State, personally appeared John Hamra, the President of
Applebee's International, Inc., known to me to be the person who executed the
within Certificate of Amendment of Certificate of Incorporation in behalf of
said corporation and acknowledged to me that he executed said Amendment for the
purpose therein stated.
/s/ Patricia A. Kerr
Notary Public
My Commission Expires:
- ------------------------
<PAGE>
Filed with the Office of the
Secretary of State of Delaware
on 3/15/88 at 10:00 A.M.
CERTIFICATE OF DESIGNATIONS
Applebee's International, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of Applebee's International, Inc.
duly adopted the resolution set forth on the attached Certified Copy of
Resolution on the 14th day of March, 1988.
SECOND: That the resolution is a true copy of a resolution adopted by
the Board of Directors pursuant to Article 4, Paragraph I of the Certificate of
Incorporation, as amended, and Section 151 of the General Corporation Law of the
State of Delaware, whereby the Board of Directors has set forth the voting
powers, designations, preferences, rights and qualifications, limitations or
restrictions for Four Hundred Fifty Thousand (450,000) shares of Series "A"
Cumulative Convertible Preferred Stock and Five Hundred Thousand (500,000)
shares of Series "B" Cumulative Convertible Preferred Stock.
THIRD: That the capital of said corporation is not reduced or increased
under or by reason of this designation.
IN WITNESS WHEREOF, said Applebee's International, Inc. has caused its
corporate seal to be hereunto affixed and this certificate to be signed by Abe
J. Gustin, Jr., its President, and attested to be Johyne Reck, its Secretary,
this 14th day of March, 1988.
APPLEBEE'S INTERNATIONAL, INC.
By: /s/ Abe J. Gustin, Jr.
(CORPORATE SEAL)
ATTEST:
/s/ Johyne Reck
Johyne Reck, Secretary
STATE OF MISSOURI )
) SS.
COUNTY OF JACKSON )
On this 14th day of March, 1988, before me, Guadalupe Guhl, a Notary
Public in and for said State, personally appeared Abe J. Gustin, the President
of Applebee's International, Inc., known to me to be the person who executed the
within Certificate of Designations in behalf of said corporation and
acknowledged to me that he executed said Certificate for the purposes therein
stated.
/s/ Guadalupe Guhl
Notary Public
My Commission Expires:
September 23, 1990
<PAGE>
CERTIFIED COPY OF RESOLUTION
I, Johyne Reck, hereby certify that I am the duly elected Secretary of
Applebee's International, Inc., a Delaware corporation, and that the following
Resolutions were adopted by the Board of Directors of said corporation and were
enacted in accordance with the laws of the State of its incorporation and the
Bylaws of the corporation by a unanimous consent in writing dated March 14,
1988:
RESOLVED, that pursuant to Article 4, Paragraph I of the Certificate of
Incorporation, as amended, whereby the Board of Directors may designate
by resolution the various powers, preferences and other rights
regarding the 5,000,000 authorized shares of Preferred Stock, the
officers of this corporation are hereby authorized and directed to make
an issue of the following series of Preferred Stock up to the amounts
hereinafter set forth:
1. Four hundred fifty thousand (450,000) shares of Series "A"
Cumulative Convertible Preferred Stock, which stock shall be entitled
to annual dividends in the amount of $0.16 per share payable monthly on
the 1st day of each month; shall be convertible into one share of
common stock for each share of preferred stock; shall be cumulative as
to dividends, without restrictions, from and after the dividend payment
dates set forth above; are entitled to preference in the declaration or
payment of dividends to any other preferred series or common stock; are
redeemable upon the terms and conditions provided in that certain
Securities Purchase Agreement entered into between the Corporation and
MBI Venture Capital Investors, Inc. dated the date hereof, a copy of
which is on file at the offices of the Corporation; and are entitled in
the event of voluntary or involuntary liquidation, dissolution,
distribution of assets or winding up of the Corporation, to receive,
before any payment is made with respect to any other preferred series
or common stock, an amount equal to approximately $1.33 per share (the
exact amount being the amount per share paid by such holder), plus all
unpaid dividends on such shares, whether declared or undeclared to the
date of distribution. The holders of these shares are entitled to one
vote in respect to each share held by the holder on all matters voted
upon by the stockholders.
2. Five hundred thousand (500,000) shares of Series "B" Cumulative
Convertible Preferred Stock, which stock shall be entitled to annual
dividends of $0.754286 per share payable monthly on the 1st day of each
month; shall be convertible into one share of common stock for each
share of preferred stock; shall be cumulative as to dividends, without
restrictions, from and after the dividend payment dates; are entitled
to preference in the declaration or payment of dividends to common
stock; and are entitled in the event of voluntary or involuntary
liquidation, dissolution, distribution of assets or winding up of the
Corporation, to receive, before any payment is made with respect to any
common stock, in amount equal to $6.8571428 per share, plus all unpaid
dividends on such shares whether declared or undeclared to the date of
distribution. If, however, upon such liquidation, dissolution,
distribution of assets or winding up of affairs the assets available
for distribution to all preferred series (other than Series "A"
Cumulative Convertible Preferred) shall be insufficient to pay the
holders thereof the full amounts to which they are entitled, those
holders shall share ratably in any distribution of assets in proportion
to the full amounts to which they would be entitled if all amounts were
paid in full.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
seal of the corporation this 14th day of March, 1988.
/s/ Johyne Reck
Johyne Reck, Secretary
(SEAL)
<PAGE>
Filed with the Office of the
Secretary of State of Delaware
on October 11, 1989 at 10:00 a.m.
CERTIFICATE
OF
APPLEBEE'S INTERNATIONAL, INC.
ELIMINATING
CERTIFICATE OF STOCK DESIGNATIONS
WITH RESPECT TO
SERIES A PREFERRED STOCK AND SERIES B PREFERRED STOCK
Applebee's International, Inc. (the "Corporation"), a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware,
DOES HEREBY CERTIFY THAT:
FIRST: The Board of Directors previously adopted a Certificate
of Designations creating two series of Preferred Stock consisting of 450,000
shares of Series A Cumulative Convertible Preferred Stock (the "Series A
Preferred Stock") and 500,000 shares of Series B Preferred Stock (the " Series B
Preferred Stock"). Thereafter, 450,000 shares of Series A Preferred Stock and
350,000 shares of Series B Preferred Stock were issued. All of the issued and
outstanding shares in Series A Preferred Stock and Series B Preferred Stock have
been converted into Common Stock of the Corporation and, accordingly, there are
presently no shares o Series A Preferred Stock or Series B Preferred Stock
outstanding. The Board of Directors of the Corporation duly adopted on July 21,
1989 resolutions directing that thereafter none of the Series A Preferred Stock
or the Series B Preferred Stock designated by the Certificate of Designations
will be issued and directing that a certificate as to such resolutions be filed
thereby eliminating from the Certificate of Incorporation all matters set forth
in the Certificate of Designations with respect to such series of Preferred
Stock and thereby causing the number of shares in such series of Preferred Stock
specified by the Certificate of Designations to resume the status held before
the adopting of the resolutions set forth in the Certificate of Designations.
The resolutions of the Board of Directors being as follows:
WHEREAS, Article 4, Paragraph I of the Certificate of
Incorporation, as amended, of the Company provides that the Board of
Directors of the Company is authorized, at any time and from time to
time, to provide for the issuance of shares of Preferred Stock of the
Company in one or more series with such designations, voting powers,
preferences and relative, participating, optional or other special
rights and qualifications, limitations or restrictions thereof as are
stated and expressed in the resolution or resolutions providing for the
issue thereof adopted by the Board of Directors; and
WHEREAS, pursuant to the authority vested in it by Article 4,
Paragraph I of the the Certificate of Incorporation, as amended, of the
Company, the Board of Directors of the Company, by resolutions adopted
March 14, 1988, designated the various powers, preferences and other
rights of, and directed the issuance of, (i) Four Hundred Fifty
Thousand (450,000) shares of Series "A" Cumulative Convertible
Preferred Stock $.01 par value per share, of the Company (the "Series A
Preferred Stock"), and (ii) Five Hundred Thousand (500,000) shares of
Series "B" Cumulative Convertible Prefered Stock, $.01 par value per
share, of the Company (the "Series B Preferred Stock"); and
<PAGE>
WHEREAS, pursuant to Section 151(g) of the General Company Law
of the State of Delaware, on March 15, 1988 the Company filed with the
Secretary of State of Delaware that certain Certificate of Designations
dated March 14, 1988 (the "Certificate of Designations") setting forth
the resolutions referred to above of the Board of Directors formally
designating the various powers, preferences and other rights Series A
Preferred Stock and the Series B Preferred Stock, and thereafter shares
of the Series A Preferred Stock and Series B Preferred Stock were
issued by the Company; and
WHEREAS, all shares of the Series A Preferred Stock and Series
B Preferred Stock heretofore issued by the Company have, pursuant to
exercise of the rights and privileges of such shares set forth in the
Certificate of Designations, been converted into shares of Common
Stock, $.01 par value per share, of the Company, and as a result at the
date hereof there are no shares of Series A Preferred Stock or Series B
Preferred Stock outstanding; and
WHEREAS, it is the intention of the Board of Directors of the
Company that no shares of Series A Preferred Stock or Series B
Preferred Stock subject to the Certificate of Designations shall be
issued in the future;
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors of
the Company has determined that none of the authorized shares of Series
A Preferred Stock or Series B Preferred Stock are outstanding at the
date hereof and none of such shares subject to the Certificate of
Designations will be hereafter issued in the future; and
RESOLVED FURTHER, that, pursuant to Section 151(g) of the
General Company Law of the State of Delaware, the Chairman of the Board
and the President of the Company, or either of them, and any one or
more officers of the Company, if any, hereafter designated by the
Chairman of the Board or the President of the Company, are hereby
authorized to execute, acknowledge, attest, file and record in
accordance with Section 103 of the General Company Law of the State of
Delaware, a certificate eliminating from the Certificate of
Incorporation, as amended, of the Company all matters set forth in the
Certificate of Designations; it being the intent of this Board of
Directors to eliminate the various powers, preferences and other rights
of the Series A Preferred Stock and Series B Preferred Stock as
designated in the Certificate of Designations and to return all of such
authorized Series A Preferred Stock and Series B Preferred Stock to the
status of "Preferred Stock" as defined in Article 4, Paragraph I of the
Certificate of Incorporation, as amended, of the Company which such
shares held prior to adoption of the resolutions set forth in the
Certificate of Designations, subject to the authority granted to the
Board of Directors in the Certificate of Incorporation hereafter from
time to time to designate and provide for the issuance of shares of
Preferred Stock in one or more series with such designations, voting
powers, preferences and relative, participating, optional or other
special rights and qualifications, limitations or restrictions thereof
as are stated and expressed in a resolution or resolutions hereafter
adopted by the Board of Directors providing for the issue thereof; and
RESOLVED FURTHER, that the aforesaid officers of the Company,
acting either alone or together with one or more other officers of the
Company, are each hereby authorized and directed to execute, attest and
file such documents and to take such other actions as such officer or
officers may deem to be necessary or appropriate to carry out the
intent of the foregoing resolutions.
SECOND: This Certificate is filed by the Corporation pursuant to
Section 151(g) of the General Corporation Law of the State of Delaware, for the
purposes stated in the resolutions adopted by the Board of Directors of the
Corporation set forth above.
IN WITNESS WHEREOF, Applebee's International, Inc. has caused this
Certificate to be signed by Abe J. Gustin, Jr., its President, and attested to
be Johyne Reck, its Secretary, this 27 day of September , 1989.
<PAGE>
APPLEBEE'S INTERNATIONAL, INC.
(CORPORATE SEAL) By: /s/ Abe J. Gustin, Jr.
Its: President
ATTEST:
/s/ Johyne Reck
Johyne Reck, Secretary
STATE OF MISSOURI )
) ss.
COUNTY OF JACKSON )
On this 27th day of September, 1989, before me, Janice F. Haas, a
Notary Public in and for said State, personally appeared Abe J. Gustin, Jr., the
President of Applebee's International, Inc., known to me to be the person who
executed the within the Certificate on behalf of said Corporation and
acknowledged to me that he executed the same as the act and deed of said
Corporation for the purposes and in the capacity therein stated and that the
facts stated therein are true.
/s/ Janice F. Haas
Notary Public
My Commission Expires:
June 13, 1993
<PAGE>
Filed with the Office of the
Secretary of State of Delaware
on August 14, 1989 at 9:00 a.m.
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
APPLEBEE'S INTERNATIONAL, INC.
Applebee's International, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY THAT:
FIRST: The Board of Directors of the Corporation duly adopted
resolutions setting forth proposed amendments to the Certificate of
Incorporation of the Corporation which amend Article 4 thereof to increase the
number of shares of authorized Common Stock and decrease the number of
authorized Preferred Stock, and which add a new Article 10 to such Certificate
of Incorporation as set forth below, declaring said amendments to be advisable
and calling for the same to be submitted to the stockholders of the Corporation
for consideration. The resolutions setting forth the proposed amendments are as
follows:
(a) RESOLVED, that the Certificate of Incorporation of the Corporation,
as amended, be amended by changing Article 4 thereof so that, as hereby amended,
said Article 4 shall be and read in its entirety as follows:
"4. The total number of shares of capital stock which the
Corporation shall have authority to issue is twenty-six million
(26,000,000) shares, which shall be divided into two classes as
follows:
One million (1,000,000) shares of Preferred Stock with a par
value of one cent ($.01) per share (the "Preferred Stock");
and
Twenty-five million (25,000,000) shares of Common Stock with a
par value of one cent ($.01) per share (the "Preferred
Stock").
Four hundred fifty thousand (450,000) shares of the Preferred
Stock shall be Series A Cumulative Convertible Preferred Stock (the
"Series A Preferred Stock") and five hundred thousand (500,000) shares
of the Preferred Stock shall be Series B Cumulative Convertible
Preferred Stock (the "Series B Preferred Stock"), each having the
respective powers, preferences and other rights, qualifications,
limitations and restrictions set forth in the Certificate of
Designations dated March 14, 1988 filed by the Corporation with the
Secretary of State of Delaware on March 15, 1988 (the "Certificate of
Designations"); provided, however, that nothing herein shall prohibit
the Corporation or its Board of Directors, acting in accordance with
the General Corporation Law of the State of Delaware (including but not
limited to Section 151(g) thereof) or this Certificate of
Incorporation, from hereafter amending or eliminating all or any of the
powers, designations, preferences, or relative, participating, optional
or other rights, or the qualifications, limitations or restrictions, of
the Series A Preferred Stock and the Series B Preferred Stock, or any
portion thereof, as the same are presently stated in the Certificate of
Designations or are hereafter stated in any subsequent certificate of
designations filed by the Corporation pursuant to Section 151(g) of the
General Corporation Law of the State of Delaware or in any other
subsequent amendment to this Certificate of Incorporation, or returning
the Series A Preferred Stock and the Series B Preferred Stock, or any
portion thereof, to the status of "Preferred Stock" with rights and
powers to be designated thereafter by the Board of Directors pursuant
to this Article 4. Subject to the foregoing, the designations, voting
powers, preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions, of the
Preferred Stock and Common Stock are as follows:
<PAGE>
I. Preferred Stock
A. Issuance in Series. Shares of Preferred Stock may be issued in
one or more series at such time or times, and for such
consideration or considerations, as the Board of Directors may
determine. All shares of any one series of Preferred Stock
will be identical with each other share of stock of such
series in all respects, except that shares of one series
issued at different times may differ as to dates from which
dividends thereon may be cumulative.
B. Authority of the Board with Respect to Series. Subject to
restrictions, if any, stated in the Certificate of
Incorporation, as amended and in effect from time to time, of
the Corporation or under the general corporation law of the
State of Delaware, the Board of Directors is authorized, at
any time and from time to time, to provide for the issuance of
shares of Preferred Stock in one or more series with such
designations, voting powers, preferences and relative,
participating, optional or other special rights and
qualifications, limitations or restrictions thereof as are
stated and expressed in the resolution or resolutions
providing for the issue thereof adopted by the Board of
Directors, and as are not stated and expressed in the
Certificate of Incorporation of the Corporation or any
amendment thereto then in effect including, but not limited
to, determination of any of the following:
(a) the distinctive serial designation and the number
of shares constituting a series;
(b) the dividend rate or rates, whether dividends are
cumulative and, if so, from which date, the payment date or
dates for dividends, and the participating or other special
rights, if any, with respect to dividends, including any
preference as to dividend payments granted to one or more
series which may be superior in right to any other series;
(c) the voting powers, full or limited, if any, of
the shares of the series;
(d) whether the shares are redeemable and, if so, the
price or prices at which, and the terms and conditions on
which, the shares may be redeemed;
(e) the amount or amounts payable upon the shares in
the event of voluntary or involuntary liquidation,
dissolutions, distributions of assets or winding up of the
corporation prior to any payment or distribution of the assets
of the Corporation to any class or classes of capital stock of
the Corporation ranking junior to the shares of such series;
(f) whether the shares are entitled to the benefit of
a sinking or retirement fund to be applied to the purchase or
redemption of shares of a series and, if so entitled, the
amount of the fund and the manner of its application,
including the price or prices at which the shares may be
redeemed or purchased through the application of the fund;
(g) whether the shares are convertible into, or
exchangeable for, shares of any other class or classes or of
any other series of the same or any other class or classes of
capital stock of the Corporation and, if so convertible or
exchangeable, the conversion price or prices, or the rates of
exchange, and the adjustments thereof, if any, at which the
conversion or exchange may be made, and any other terms and
conditions of the conversion or exchange; and
(h) any other preferences, privileges and powers, and
relative participating, optional or other special rights, and
qualifications, limitations or restrictions of a series, as
the Board of Directors may deem advisable and as are not
inconsistent with the provisions of the Certificate of
Incorporation or any amendment thereto in effect at the time
of determination.
<PAGE>
C. Dividends. Before any dividends on any class or classes of
capital stock of the Corporation ranking junior to the
Preferred Stock (other than dividends payable in shares of any
class or classes of capital stock of the corporation ranking
junior to the Preferred Stock) may be declared or paid or set
apart for payment, the holders of shares of Preferred Stock of
each series then outstanding are entitled to such dividends,
but only when and as declared by the Board of Directors out of
funds legally available therefor, as they may be entitled to
in accordance with the resolution or resolutions adopted by
the Board of Directors providing for the issue of such series,
payable on such dates in each year as may be fixed in such
resolution or resolutions. The term "class or classes of
capital stock of the Corporation ranking junior to the
Preferred Stock" means the Common Stock and any other class or
classes of capital stock of the Corporation hereafter
authorized which rank junior to the Preferred Stock as to
dividends or upon liquidation.
D. Reacquired Shares. Shares of Preferred Stock which have been
issued and reacquired in any manner by the Corporation
(excluding, until the corporation elects to retire them,
shares which are held as treasury shares but including shares
redeemed, shares purchased and retired and shares which have
been converted into shares of Commons Stock) will have the
status of authorized and unissued shares of Preferred Stock
and may be reissued.
II. Common Stock
A. Dividends. Subject to the preferential rights of the Preferred
Stock with respect to dividends, the holders of the Common
Stock are entitled to receive, to the extent permitted by law,
such dividends as may be declared from time to time by the
Board of Directors.
B. Liquidation. In the event of the voluntary or involuntary
liquidation, dissolution, distribution of assets or winding up
of the Corporation, after distribution in full of the
preferential amounts, if any, to be distributed to the holders
of shares of Preferred Stock, holders of Common Stock shall be
entitled to receive all of the remaining assets of the
Corporation of whatever kind available for distribution to
stockholders of the Corporation ratably in proportion to the
number of shares of Common Stock held by each of them
respectively. The Board of Directors may distribute in kind to
the holders of Common Stock such remaining assets of the
Corporation or may sell, transfer or otherwise dispose of all
or any part of such remaining assets to any other corporation,
trust or other person or entity and receive payment therefore
in cash, stock or obligations of such other corporation, trust
or other person or entity, or any combination thereof, and may
sell all or any part of the consideration so received and
distribute the proceeds thereof, any balance thereof in kind,
to the holders of Common Stock ratably as provided above. The
merger or consolidation of the corporation into or with any
other corporation, or the merger of any other corporation into
the Corporation, or any purchase or redemption of shares of
capital stock of the Corporation of any class, shall not be
deemed to be a dissolution, liquidation or winding up of the
Corporation for the purposes of this paragraph.
C. Voting Rights. Except as may be otherwise required by law or
the Certificate of Incorporation or any amendment thereto in
effect at the time of determination, each holder of Common
Stock has one vote in respect to each share of Common Stock
held by him of record on the books of the corporation on all
matters voted upon by the stockholders.
III. Other Provisions.
A. Preemptive Rights. No stockholder shall have any preemptive
right to subscribe to an additional issue of stock of any
class or series or to any securities of the Corporation
convertible into such stock."
<PAGE>
(b) RESOLVED FURTHER, that the Certificate of Incorporation, as
amended, of the Corporation be amended by adding a new Article 10 thereto, said
new Article 10 to be and read in its entirety as follows:
"10. To the full extent permitted by Delaware Law, no director
of the Corporation shall have personal liability to the Corporation or
its stockholders for monetary damages for an act or omission in such
director's capacity as a director of the Corporation. The foregoing
elimination of certain liability of directors shall not be deemed
exclusive of any other rights or limitation of liability to which a
director may be entitled under any bylaw provision, agreement, vote of
stockholders and/or disinterested directors, or otherwise."
SECOND: Thereafter, pursuant to Section 228 of the General Corporation
Law of the State of Delaware, the holders of all outstanding shares of capital
stock of all classes of the Corporation executed a written consent adopting and
approving the aforesaid amendments.
THIRD: Said amendments were duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: The capital of said Corporation shall not be reduced or
increased under or by reason of said amendments.
IN WITNESS WHEREOF, said Applebee's International, Inc. has caused this
Certificate to be signed by Abe J. Gustin, Jr., its President, and attested to
by Johyne Reck, its Secretary, this 21st day of July , 1989.
APPLEBEE'S INTERNATIONAL, INC.
By: /s/ Abe J. Gustin, Jr.
Its President
ATTEST:
/s/ Johyne Reck
Johyne Reck, Secretary
STATE OF MISSOURI )
) SS.
COUNTY OF JACKSON )
On this 21st day of July , 1989, before me, Frances L. Hillman, a
Notary Public in and for said State, personally appeared Abe J. Gustin, Jr., the
President of Applebee's International, Inc., known to me to be the person who
executed the within Certificate of Amendment to the Certificate of Incorporation
of Applebee's International, Inc. on behalf of said corporation and acknowledged
to me that he executed said Certificate of Amendment as the act and deed of said
Corporation for the purposes and in the capacity therein stated and that the
facts stated therein are true.
/s/ Frances L. Hillman
Notary Public
My Commission Expires:
September 7, 1991
<PAGE>
Filed with the Office of the
Secretary of State of Delaware
on June 8, 1992 at 3:30 p.m.
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
APPLEBEE'S INTERNATIONAL, INC.
Applebee's International, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law and State of Delaware DOES
HEREBY CERTIFY:
FIRST: That the Board of Directors of Applebee's International, Inc.
(the "Corporation") adopted a resolution setting forth a proposed amendment to
the Certificate of Incorporation of the Corporation, declaring said amendment to
be advisable and calling a meeting of the stockholders of the Corporation for
consideration thereof. The resolution setting forth the proposed amendment is as
follows:
RESOLVED, that the Certificate of Incorporation be amended by adding a
new Article 11 thereto, said new Article 11 to be and read in its
entirety as follows:
"11. Upon the effectiveness of this amendment to the
Certificate of Incorporation pursuant to the Delaware General
Corporation Law, the Board of Directors of the Corporation
shall be divided into three classes, designated Class I, Class
II and Class III, which at all times shall be as nearly equal
in number as possible, as determined by the Board of
Directors. The term of office of the initial Class I Directors
shall expire at the Annual Meeting of Stockholders next
succeeding the date on which this amendment to the Certificate
of Incorporation becomes effective as provided above, the term
of office of the initial Class II Directors shall expire at
the Annual Meeting of Stockholders next succeeding the Annual
Meeting at which the term of office of the initial Class I
Directors expires, and the term of office of the initial Class
III Directors shall expire at the Annual Meeting of
Stockholders next succeeding the Annual Meeting at which the
term of office of the initial Class II Directors expires. The
appointment of incumbent Directors to the Board of Directors
Classes I, II and III at the time of the effectiveness of this
amendment to the Certificate of Incorporation pursuant to the
Delaware General Corporation Law shall be by a resolution
adopted by a majority of the Stockholders entitled to vote in
an election of directors. At each Annual Meeting of
Stockholders following such initial classification and
election, Directors elected to succeed those whose terms
expire at the time of such meeting shall be elected to hold
office until the third succeeding Annual Meeting of
Stockholders after their election. In the event of any
increase in the number of Directors of the corporation, the
additional Directors shall be classified so that all classes
of Directors shall be increased equally as nearly as possible.
Each Director shall hold office until his or her successor is
elected and qualified, or until his or her earlier resignation
or removal. Directors need not be Stockholders."
SECOND: That thereafter, pursuant to resolution of its Board
of Directors, an annual meeting of the stockholders of the Corporation was duly
called and held upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware at which meeting the necessary number
of shares as required by statute were voted in favor of the amendment to the
Certificate of Incorporation of said Corporation as stated above in its
entirety.
THIRD: That said amendment was duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of the Corporation shall not be
reduced under or by reason of said amendment.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this
certificate to be signed by Abe J. Gustin, Jr. its President and Robert T.
Steinkamp, its Secretary, this 26th day of May, 1992.
APPLEBEE'S INTERNATIONAL, INC.
By: /s/ Abe J. Gustin
President
ATTEST:
/s/ Robert T. Steinkamp
Secretary
STATE OF MISSOURI )
) ss.
COUNTY OF JACKSON )
On this day 26th day of May, 1992, before me, /s/ Janice F. Haas, a
Notary Public in and for said State, personally appeared Abe J. Gustin, Jr., the
President of Applebee's International, Inc., known to me to be the person who
executed the within the Certificate of Amendment to Certificate of Incorporation
of Applebee's International, Inc. on behalf of the Corporation and acknowledged
to me that he executed said Certificate of Amendment as the act and deed of the
Corporation for the purposes and in the capacity therein stated and that the
facts stated therein are true.
/s/ Janice F. Haas
Notary Public
My commission expires:
June 13, 1993
<PAGE>
Filed with the Office of the
Secretary of State of Delaware
on 6/6/94 at 4:30 P.M.
FOURTH CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
APPLEBEE'S INTERNATIONAL, INC.
Applebee's International, Inc. a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation duly adopted the
resolution setting forth the proposed amendment to the Certificate of
Incorporation of the Corporation in the form set forth below, declaring said
amendment to be advisable and calling a meeting of the stockholders of the
Corporation for consideration thereof.
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, an annual meeting of stockholders of the Corporation was duly called
and held upon notice in accordance with Section 222 of the General Corporation
Law of the State of Delaware, at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment to the Certificate of
Incorporation of the corporation stated as follows:
"RESOLVED, that the first sentence of Article 4 of the Certificate of
Incorporation of the Corporation be, and it hereby is, deleted in its
entirety and replaced by the following:
4. The total number of shares of capital stock which the
corporation shall have authority to issue is one hundred and twenty-six
million (126,000,000) shares, which shall be divided into two classes
as follows:
One million (1,000,000) shares of Preferred Stock with a par
value of one cent ($.01) per share (the "Preferred Stock"); and
One hundred twenty-five million (125,000,000) shares of common
stock with a par value of one cent ($.01) per share (the "Common
Stock")."
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of the Corporation shall not be reduced or
increased under or by reason of said amendment.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by Abe J. Gustin, Jr., its President, and attested to by Robert T.
Steinkamp, its Secretary, this 2nd day of June, 1994.
APPLEBEE'S INTERNATIONAL, INC.
By: /s/ Abe J. Gustin, Jr.
Abe J. Gustin, Jr., President
ATTEST:
/s/ Robert T. Steinkamp
Robert T. Steinkamp, Secretary
[CORPORATE SEAL]
STATE OF KANSAS )
) ss.
COUNTY OF JOHNSON )
Be it remembered, that before me Debra Nieuwenhuis, a notary public in
and for the county and state aforesaid, came Abe J. Gustin, Jr., President, and
Robert T. Steinkamp, Secretary, of Applebee's International, Inc., a
corporation, personally known to me to be the person who executed the foregoing
instrument of writing as President and Secretary, respectively, and duly
acknowledged the execution of the same this 2nd day of June, 1994.
/s/ Debra K. Nieuwenhuis
My commission expires:
June 15, 1997
<PAGE>
Filed with the Office of the
Secretary of State of Delaware
on 9/19/94 at 10:00 A.M.
CERTIFICATE OF THE VOTING POWERS,
DESIGNATIONS, PREFERENCES AND RELATIVE
PARTICIPATING, OPTIONAL AND OTHER SPECIAL
RIGHTS AND QUALIFICATIONS, LIMITATIONS
OR RESTRICTIONS OF SERIES A
PARTICIPATING CUMULATIVE
PREFERRED STOCK OF
APPLEBEE'S INTERNATIONAL, INC.
Pursuant to Section 151 of the General Corporation Law of the State of
Delaware, Applebee's International, Inc. (the "Corporation"), a corporation
organized and existing under the General Corporation Law of the State of
Delaware, in accordance with the provisions of Section 103 thereof, DOES HEREBY
CERTIFY:
That, pursuant to the authority conferred upon the Board of Directors
of the Corporation by Article Fourth of the Certificate of Incorporation of the
Corporation (the "Certificate of Incorporation"), the Board of Directors of the
Corporation on September 7, 1994, adopted the following resolution creating a
series of Preferred Stock designated as Series A Participating Cumulative
Preferred Stock:
RESOLVED, that, pursuant to the authority vested in the Board of
Directors of the Corporation in accordance with the provisions of the
Certificate of Incorporation of the Corporation, a series of Preferred
Stock of the Corporation is hereby created and that the designation and
number of shares thereof and the voting powers, preferences and
relative, participating, optional and other special rights of the
shares of such series, and the qualifications, limitations or
restrictions thereof are as follows:
SECTION 1. Designation and Number of Shares. The shares of such series
shall be designated as "Series A Participating Cumulative Preferred Stock" (the
"Series A Preferred Stock"), par value $0.01 per share. The number of shares
initially constituting the Series A Preferred Stock shall be 500,000; provided,
however, that, if more than a total of 50,000 shares of Series A Preferred Stock
shall be issuable upon the exercise of Rights (the "Rights") issued pursuant to
the Rights Agreement dated as of September 7, 1994, between the Corporation and
Chemical Bank, a New York banking corporation, as Rights Agent (the "Rights
Agreement"), the Board of Directors of the Corporation, pursuant to Section
151(g) of the General Corporation Law of the State of Delaware, shall direct by
resolution or resolutions that a certificate be properly executed, acknowledged,
filed and recorded, in accordance with the provisions of Section 103 thereof,
providing for the total number of shares of Series A Preferred Stock authorized
to be issued to be increased (to the extent that the Certificate of
Incorporation then permits) to the largest number of whole shares (rounded up to
the nearest whole number) issuable upon exercise of such Rights.
<PAGE>
SECTION 2. Dividends or Distributions. (a) Subject to the prior and
superior rights of the holders of shares of any other series of Preferred Stock
or other class of capital stock of the Corporation ranking prior or superior to
the shares of Series A Preferred Stock with respect to dividends, the holders of
shares of the Series A Preferred Stock shall be entitled to receive, when, as
and if declared by the Board of Directors, out of the assets of the Corporation
legally available therefor, (1) quarterly dividends payable in cash on the last
day of each fiscal quarter in each year, or such other dates as the Board of
Directors of the Corporation shall approve (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or a
fraction of a share of Series A Preferred Stock, in the amount of $.01 per whole
share (rounded to the nearest cent) less the amount of all cash dividends
declared on the Series A Preferred Stock pursuant to the following clause (2)
since the immediately preceding Quarterly Dividend Payment Date or, with respect
to the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Preferred Stock (the total of which
shall not, in any event, be less than zero) and (2) dividends payable in cash on
the payment date for each cash dividend declared on the Common Stock in an
amount per whole share (rounded to the nearest cent) equal to the Formula Number
(as hereinafter defined) then in effect times the cash dividends then to be paid
on each share of Common Stock. In addition, if the Corporation shall pay any
dividend or make any distribution on the Common Stock payable in assets,
securities or other forms of noncash consideration (other than dividends or
distributions solely in shares of Common Stock), then, in each such case, the
Corporation shall simultaneously pay or make on each outstanding whole share of
Series A Preferred Stock a dividend or distribution in like kind equal to the
Formula Number then in effect times such dividend or distribution on each share
of the Common Stock. As used herein, the "Formula Number" shall be 1,000;
provided, however, that, if at any time after September 19, 1994, the
Corporation shall (i) declare or pay any dividend on the Common Stock payable in
shares of Common Stock or make any distribution on the Common Stock in shares of
Common Stock, (ii) subdivide (by a stock split or otherwise) the outstanding
shares of Common Stock into a larger number of shares of Common Stock or (iii)
combine (by a reverse stock split or otherwise) the outstanding shares of Common
Stock into a smaller number of shares of Common Stock, then in each such event
the Formula Number shall be adjusted to a number determined by multiplying the
Formula Number in effect immediately prior to such event by a fraction, the
numerator of which is the number of shares of Common Stock that are outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that are outstanding immediately prior to such event (and
rounding the result to the nearest whole number); and provided further, that, if
at any time after September 19, 1994, the Corporation shall issue any shares of
its capital stock in a merger, reclassification, or change of the outstanding
shares of Common Stock, then in each such event the Formula Number shall be
appropriately adjusted to reflect such merger, reclassification or change so
that each share of Preferred Stock continues to be the economic equivalent of a
Formula Number of shares of Common Stock prior to such merger, reclassification
or change.
(b) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in Section 2(a) immediately prior to or at
the same time it declares a dividend or distribution on the Common Stock (other
than a dividend or distribution solely in shares of Common Stock); provided,
however, that, in the event no dividend or distribution (other than a dividend
or distribution in shares of Common Stock) shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $.01 per
share on the Series A Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date. The Board of Directors may fix a
record date for the determination of holders of shares of Series A Preferred
Stock entitled to receive a dividend or distribution declared thereon, which
record date shall be the same as the record date for any corresponding dividend
or distribution on the Common Stock.
<PAGE>
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from and after the Quarterly Dividend Payment
Date next preceding the date of original issue of such shares of Series A
Preferred Stock; provided, however, that, dividends on such shares which are
originally issued after the record date for the determination of holders of
shares of Series A Preferred Stock entitled to receive a quarterly dividend and
on or prior to the next succeeding Quarterly Dividend Payment Date shall begin
to accrue and be cumulative from and after such Quarterly Dividend Payment Date.
Notwithstanding the foregoing, dividends on shares of Series A Preferred Stock
which are originally issued prior to the record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive a quarterly
dividend on the first Quarterly Dividend Payment Date shall be calculated as if
cumulative from and after the last day of the fiscal quarter next preceding the
date of original issuance of such shares. Accrued but unpaid dividends shall not
bear interest. Dividends paid on the shares of Series A Preferred Stock in an
amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding.
(d) So long as any shares of the Series A Preferred Stock are
outstanding, no dividends or other distributions shall be declared, paid or
distributed, or set aside for payment or distribution, on the Common Stock
unless, in each case, the dividend required by this Section 2 to be declared on
the Series A Preferred Stock shall have been declared.
(e) The holders of the shares of Series A Preferred Stock shall not be
entitled to receive any dividends or other distributions except as provided
herein.
SECTION 3. Voting Rights. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(a) Each holder of Series A Preferred Stock shall be entitled to a
number of voters equal to the Formula Number then in effect, for each share of
Series A Preferred Stock held of record on each matter on which holders of the
Common Stock or stockholders generally are entitled to vote, multiplied by the
maximum number of votes per share which any holer of the Common Stock or
stockholders generally then have with respect to such matter (assuming any
holding period or other requirement to vote a greater number of shares is
satisfied).
(b) Except as otherwise provided herein or by applicable law, the
holders of shares of Series A Preferred Stock and the holders of shares of
Common Stock shall vote together as one class for the election of directors of
the Corporation and on all other matters submitted to a vote of the stockholders
of the Corporation.
(c) If, at the time of any annual meeting of stockholders for the
election of directors, the equivalent of six quarterly dividends (whether or not
consecutive) payable on any share or shares of Series A Preferred Stock are in
default, the number of directors constituting the Board of Directors of the
Corporation shall be increased by two. In addition to voting together with the
holders of Common Stock for the election of other directors of the Corporation,
the holders of record of the Series A Preferred Stock, voting separately as a
class to the exclusion of the holders of the Common Stock, shall be entitled as
said meeting of stockholders (and at each such subsequent annual meeting of
stockholders), unless all dividends in arrears have been paid or declared and
set apart for payment prior thereto, to vote for the election of two directors
of the Corporation, the holders of any Series A Preferred Stock being entitled
to cast a number of votes per share of Series A Preferred Stock equal to the
Formula Number. Until the default in payments of all dividends which permitted
the election of said directors shall cease to exist, any director who shall have
been so elected pursuant to the next preceding sentence may be removed at any
time, either with or without cause, only by the affirmative vote of the holders
of the shares of Series A Preferred Stock at the time entitled to cast a
majority of the votes entitled to be cast for the election of any such director
at a special meeting of such holders called for such purpose, and any vacancy
thereby created may be filled by the vote of such holders. If and when such
default shall cease to exist, the holders of Series A Preferred Stock shall be
divested of the foregoing special voting rights, subject to revesting in the
event of each and every subsequent like default in payments of dividends. Upon
the termination of the foregoing special voting rights, the terms of office of
all persons who may have been elected directors pursuant to said special voting
rights shall forthwith terminate, and the number of directors constituting the
Board of Directors shall be reduced by two. The voting rights granted by this
Section 3(c) shall be in addition to any other voting rights granted to the
holders of the Series A Preferred Stock in this Section 3.
<PAGE>
(d) Except as provided herein, in Section 11 or by applicable law,
holders of Series A Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for authorizing or taking
any corporate action.
SECTION 4. Certain Restrictions. (a) Whenever quarterly dividends or
other dividends or distributions payable on the Series A Preferred Stock as
provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of Series
A Preferred Stock outstanding shall have been paid in full, the Corporation
shall not
(i) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends on or make any other distributions on any
shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred
Stock, except dividends paid ratably on the Series A Preferred Stock
and all such parity stock on which dividends are payable or in arrears
in proportion to the total amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares
of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred
Stock; provided that the Corporation may at any time redeem, purchase
or otherwise acquire shares of any such parity stock in exchange for
shares of any stock of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the Series
A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of
Series A Preferred Stock, or any shares of stock ranking on a parity
with the Series A Preferred Stock, except in accordance with a purchase
offer made in writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms as the Board
of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in fair
and equitable treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (a) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
SECTION 5. Liquidation Rights. Upon the liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, no distribution
shall be made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received an amount equal to the accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment, plus an amount equal to the greater of (x) $.01 per whole share or
(y) an aggregate amount per share equal to the Formula Number then in effect
times the aggregate amount to be distributed per share to the holders of Common
Stock or (2) to the holders of stock ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up) with the Series A Preferred
Stock, exception distributions made ratably on the Series A Preferred Stock and
all other such parity stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such liquidation, dissolution or
winding up.
<PAGE>
SECTION 6. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash or any other property, then in any such case the then
outstanding share of Series A Preferred Stock shall at the same time be
similarly exchanged or changed into an amount per share equal to the Formula
Number then in effect times the aggregate amount of stock, securities, cash or
any other property (payable in kind), as the case may be, into which or for
which each share of Common Stock is exchanged or changed. In the event both this
Section 6 and Section 2 appear to apply to a transaction, this Section 6 will
control.
SECTION 7. No Redemption; No Sinking Fund. (a) The shares of Series A
Preferred Stock shall not be subject to redemption by the Corporation or at the
option of any holder of Series A Preferred Stock except as set forth in Section
5 of Article IV of the Restated Certificate of Incorporation of the Corporation;
provided, however, that the Corporation may purchase or otherwise acquire
outstanding shares of Series A Preferred Stock in the open market or by offer to
any holder or holders of shares of Series A Preferred Stock.
(b) The shares of Series A Preferred Stock shall not be subject to or
entitled to the operation of a retirement or sinking fund.
SECTION 8. Ranking. The Series A Preferred Stock shall rank junior to
all other series of Preferred Stock of the Corporation, unless the Board of
Directors shall specifically determine otherwise in fixing the powers,
preferences and relative, participating, optional and other special rights of
the shares of such series and the qualifications, limitations and restrictions
thereof.
SECTION 9. Fractional Shares. The Series A Preferred Stock shall be
issuable upon exercise of the Rights issued pursuant to the Rights Agreement in
whole shares or in any fraction of a share that is one one-thousandths
(1/1,000ths) of a share or any integral multiple of such fraction which shall
entitle the holder, in proportion of such holder's fractional shares, to receive
dividends, exercise voting rights, participate in distributions and to have the
benefit of all other rights of holders of Series A Preferred Stock. In lieu of
fractional shares, the Corporation, prior to the first issuance of a share or a
fraction of a share of Series A Preferred Stock, may elect (1) to make a cash
payment as provided in the Rights Agreement for fractions of a share other than
one one-thousandths (1/1,000ths) of a share or any integral multiple thereof or
(2) to issue depository receipts evidencing such authorized fraction of a share
of Series A Preferred Stock pursuant to an appropriate agreement between the
Corporation and a depository selected by the Corporation; provided that such
agreement shall provide that the holders of such depository receipts shall have
all the rights, privileges and preferences to which they are entitled as holders
of the Series A Preferred Stock.
SECTION 10. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancelation become authorized but unissued shares of
Preferred Stock, without designation as to series until such shares are once
more designated as part of a particular series by the Board of Directors
pursuant to the provisions of Section 2 of Article IV of the Certificate of
Incorporation.
SECTION 11. Amendment. None of the powers, preferences and relative,
participating, optional and other special rights of the Series A Preferred Stock
as provided herein or in the Certificate of Incorporation shall be amended in
any manner which would alter or change the powers, preferences, rights or
privileges of the holders of Series A Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of at least 66-2/3% of the
outstanding shares of Series A Preferred Stock, voting as a separate class;
provided, however, that no such amendment approved by the holders of at least
66-2/3% of the outstanding shares of Series A Preferred Stock shall be deemed to
apply to the powers, preferences, rights or privileges of any holder of shares
of Series A Preferred Stock originally issued upon exercise of a Right after the
time of such approval without the approval of such holder.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
duly executed in its corporate name on this 7th day of September 1994.
APPLEBEE'S INTERNATIONAL, INC.
by: /s/ George D. Shadid
Name: George D. Shadid
Title: Executive Vice
President/CFO
Attest:
/s/ Robert T. Steinkamp
Name: Robert T. Steinkamp
Title: Secretary
<PAGE>
Filed with the Office of the
Secretary of State of Delaware
on June 13, 1995 at 3:30 p.m.
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
APPLEBEE'S INTERNATIONAL, INC.
Applebee's International, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law and State of Delaware DOES
HEREBY CERTIFY:
FIRST: That the Board of Directors of Applebee's International, Inc.
(the "Corporation") adopted a resolution setting forth a proposed amendment to
the Certificate of Incorporation of the Corporation, declaring said amendment to
be advisable and calling a meeting of the stockholders of the corporation for
consideration thereof. The resolution setting forth the proposed amendment as
follows:
RESOLVED, that the Certificate of Incorporation be amended by adding a
new Article 11 thereto, said new Article 11 to be and read in its
entirety as follows:
"11. Upon the effectiveness of this amendment to the
Certificate of Incorporation pursuant to the Delaware General
Corporation Law, the Board of Directors of the Corporation
shall be divided into three classes, designated Class I, Class
II and Class III, which at all times shall be as nearly equal
in number as possible, as determined by the Board of
Directors. The term of office of the initial Class I Directors
shall expire at the Annual Meeting of Stockholders next
succeeding the date on which this amendment to the Certificate
of Incorporation becomes effective as provided above, the term
of office of the initial Class II Directors shall expire at
the Annual Meeting of Stockholders next succeeding the Annual
Meeting at which the term of office of the initial Class I
Director expires, and the term of office of the initial Class
III Directors shall expire at the Annual Meeting of
Stockholders next succeeding the Annual Meeting at which the
term of office of the initial Class II Directors expires. The
appointment of incumbent Directors to the Board of Directors
Classes, I, II and III at the time of the effectiveness of
this amendment to the Certificate of Incorporation pursuant to
the Delaware General Corporation Law shall be by a resolution
adopted by a majority of the Stockholders entitled to vote in
an election of directors. At each Annual Meeting of
Stockholders following such initial classification and
election, Directors elected to succeed those whose terms
expire at the time of such meeting shall be elected to hold
office until the third succeeding Annual Meting of
Stockholders after their election. In the event of any
increase in the number of Directors of the corporation, the
additional Directors shall be classified so that all classes
of Directors shall be increased equally as nearly as possible.
Each Director shall hold office until his or her successor is
elected and qualified, or until his or her earlier resignation
or removal. Directors need not be Stockholders."
SECOND: That thereafter, pursuant to resolution of its Board
of Directors, an annual meeting of the stockholders of the Corporation was duly
called and held on May 26, 1995, upon notice in accordance with Section 222 of
the General Corporation Law of the State of Delaware at which meeting the
necessary number of shares as required by statute were voted in favor of the
amendment to the Certificate of Incorporation of said Corporation as stated
above in its entirety.
THIRD: That said amendment was duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of the Corporation shall not be
reduced under or by reason of said amendment.
IN WITNESS WHEREOF, the Corporation has caused this
certificate to be signed by Lloyd L. Hill, its President and Robert T.
Steinkamp, its Secretary, this 12th day of June, 1995.
APPLEBEE'S INTERNATIONAL, INC.
By: /s/ Lloyd L. Hill
President
ATTEST:
/s/ Robert T. Steinkamp
Secretary
Bylaws Approved: August 10, 1992
APPLEBEE'S INTERNATIONAL, INC.
* * * * *
FIRST RESTATEMENT OF
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. 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 or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in Kansas City, State of Missouri, at such place as may
be fixed from time to time by the board of directors, or at such other 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.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1988, shall be held on the fifteenth day of July if not a legal holiday, and if
a legal holiday, then on the next secular day following, at 10:00 A.M., or at
such other date and time as shall be designated from time to time by the board
of directors and stated in the notice of the meeting, at which they shall elect
by a plurality vote a board of directors, and transact such other business as
may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten nor more than sixty days before the date of the
meeting.
1
<PAGE>
Section 4. The officer 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 who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, 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 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the 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 except as otherwise provided by statute or by the
certificate of incorporation. 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, without notice other than an announcement
at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented any business
may be transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
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Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent 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. 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.
ARTICLE III - Amended January 26, 1994
Amended March 8, 1995
DIRECTORS
Section 1. Number; Election; Terms. The business and affairs of the
corporation shall be managed by the board of directors. The number of directors
which shall constitute the whole board of directors of the corporation shall be
not less than six nor more than nine. The exact number of directors within the
minimum and maximum limitations specified in the preceding sentence shall be
fixed from time to time by the board of directors pursuant to a resolution
adopted by the affirmative vote of at least all but one of the entire board of
directors.
Upon the effectiveness of the amendment to the certificate of
incorporation of the corporation pursuant to the Delaware General Corporation
Law, the board of directors of the corporation shall be divided into three
classes, designated Class I, Class II, and Class III, which at all times shall
be as nearly equal in number as possible, as determined by the board of
directors. If the board of directors shall by resolution increase the number of
directors which shall constitute the entire board, such additional directors
shall be designated to serve in either Class I, Class II, or Class III, at the
discretion of the board of directors, so long as each class is maintained as
nearly equal in number as possible. The term of office of the initial Class I
directors shall expire at the annual meeting of stockholders next succeeding the
date which these by-laws are adopted, the term of office of the initial Class II
directors shall expire at the annual meeting of stockholders next succeeding the
annual meeting at which the term of office of the initial Class I directors
expires, and the term of office of the initial Class III directors shall expire
at the annual meeting of stockholders next succeeding the annual meeting at
which the term of office of the initial Class II directors expires. The
appointment of incumbent directors to board of director Classes I, II and III at
the time of said effectiveness of the amendment to the certificate of
incorporation shall be by a resolution adopted by a majority of the stockholders
entitled to vote in an election of directors.
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At each annual meeting of stockholders following such initial
classification and election, directors elected to succeed those terms expired at
the time of such meeting shall be elected to hold office until the third
succeeding annual meeting of stockholders of their election. In the event of any
increase in the number of directors of the corporation, the additional directors
shall be so classified that all classes of directors shall be increased equally
as nearly as possible.
Election of directors of the corporation need not be by written ballot.
Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled 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 shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its 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 directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
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Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on seven days' notice to each director, either personally or by mail or by
telegram; special meetings shall be called by the president or secretary in like
manner and on like notice on the written request of two directors unless the
board consists of only one director; in which case special meetings shall be
called by the president or secretary in like manner and on like notice on the
written request of the sole director.
Section 8. At all meetings of the board a majority of the 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, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. 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, until a quorum shall be present.
Section 9. Unless otherwise restricted 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 members of the board 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 or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
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In the absence or disqualification of a member of a committee, 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 such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
board of directors, 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; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided in Section 151(a) fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same of any
other class or classes of stock of the corporation) adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. 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 as director. 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.
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ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his 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.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a chairman of the board, a president, a secretary and
a treasurer. The board of directors may also choose one or more vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a chairman of the board, a
president, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary 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.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed 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 CHAIRMAN OF THE BOARD
Section 6. The chairman of the board of directors shall preside at all
meetings of the stockholders and the board of directors, and shall have
supervision of such matters as may be designated to him by the board of
directors.
Section 7. He may also sign all notes, agreements or other instruments
in writing made and entered into for or on behalf of the corporation.
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THE PRESIDENT
Section 8. The president, in the absence of the chairman of the board,
shall preside at all meetings of the stockholders and the board of directors. He
shall have general and active management of the business of the corporation and
shall see that all orders and resolutions of the board of directors are carried
into effect.
Section 9. He shall execute stock certificates, bonds, mortgages and
other contracts requiring a seal, under the seal of the corporation, except
where required or permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly delegated by
the board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 10. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) 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. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 11. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He 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 or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of 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
signature.
Section 12. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
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THE TREASURER AND ASSISTANT TREASURERS
Section 13. 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.
Section 14. He shall 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 his transactions as treasurer and of the financial condition of the
corporation.
Section 15. If required by the board of directors, he 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 his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 16. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement
that the corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has singed 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 he were
such officer, transfer agent or registrar at the date of issue.
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LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates 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 or certificates or uncertificated
shares, 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 certificates, or his legal representative, to advertise
the same in such manner as it 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.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be canceled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE - Amended August 15, 1994
Section 5. 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, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty day prior to any other action. 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: provided, however,
that the board of directors may fix a new record date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. 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 the laws of
Delaware.
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ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. 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
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. 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.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. 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.
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ARTICLE VIII
AMENDMENTS
Section 1. Subject to any requirements set forth in these by-laws,
these by-laws may be amended or repealed, and any new by-laws may be adopted, by
a majority of the stockholders entitled to vote or by a majority of the board of
directors, except that the provisions of Article III may be amended only by the
affirmative vote of at least all but one of the board of directors or by the
vote of eighty percent of the stockholders entitled to vote.
ARTICLE IX
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. The corporation shall indemnify each person who has been 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,
investigative or appellate (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was an officer or
director of the corporation or is or was serving at the corporation's request as
a director or officer of any Other Enterprise against all liabilities and
expenses, including, without limitation, judgments, amounts paid in settlement
(provided that such settlement and all amounts paid in connection therewith are
approved in advance by the corporation in accordance with Section 4 of this
Article IX, which approval shall not be unreasonably withheld), attorneys' fees,
ERISA excise taxes or penalties, fines and other expenses actually and
reasonably incurred by such person in connection with such action, suit or
proceeding (including without limitation the investigation, defense, settlement
or appeal of such action, suit or proceeding) if such person acted in good faith
and in a manner he 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 no reasonable cause to believe his conduct was unlawful;
provided, however, that the corporation shall not be required to indemnify or
advance expenses to any such person or persons seeking indemnification or
advancement of expenses in connection with an action, suit or proceeding
initiated by such person unless the initiation of such action, suit or
proceeding was authorized by the board of directors of the corporation. The
termination of any such action, suit or proceeding by judgment, order,
settlement, conviction or under a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and with respect to any criminal action
or proceeding that he had reasonable cause to believe that his conduct was
unlawful.
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Section 2. The corporation shall indemnify each person who has been or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding 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
an officer or director of the corporation or is or was serving at the
corporation's request as a director or officer of any Other Enterprise against
amounts paid in settlement thereof (provided that such settlement and all
amounts paid in connection therewith are approved in advance by the corporation
in accordance with Section 4 of this Article IX, which approval shall not be
unreasonably withheld) and all expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action, suit or proceeding (including without limitation the
investigation, defense, settlement or appeal of 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,
except that no indemnification under this Section 2 shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged
liable to the corporation unless and only to the extent that the court in which
the action, suit or proceeding is brought determines upon application that,
despite the adjudication of liability and in view of all the circumstances of
the case, the person is fairly and reasonably entitled to such indemnification.
Section 3. Notwithstanding the other provisions of this Article IX, to
the extent that a person who is or was serving as a director or officer of the
corporation, or is or was serving at the request of the corporation as a
director or officer of any Other Enterprise, has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in
Sections 1 and 2 of this Article IX (including the dismissal of any such action,
suit or proceeding without prejudice), or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
Section 4. Prior to indemnifying a person pursuant to the provisions of
Sections 1 and 2 of this Article IX, unless ordered by a court and except as
otherwise provided by Section 3 of this Article IX, the corporation shall
determine that such person has met the specified standard of conduct entitling
such person to indemnification as set forth under Sections 1 and 2 of this
Article IX. Any determination that a person shall or shall not be indemnified
under the provisions of Sections 1 and 2 of this Article IX shall be made by the
board of directors by a majority vote of a quorum consisting of directors who
were not parties to the action, suit or proceeding, or if such quorum is not
obtainable, or even if obtainable, if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion or by the
stockholders, and such determination shall be final and binding upon the
corporation; provided, however, that in the event such determination is adverse
to the person or persons to be indemnified hereunder, such person or persons
shall have the right to maintain an action in any court of competent
jurisdiction against the corporation to determine whether or not such person has
met the requisite standard of conduct and is entitled to such indemnification
hereunder. If such court action is successful and the person or persons is
determined to be entitled to such indemnification, such person or persons shall
be reimbursed by the corporation for all fees and expenses (including attorneys'
fees) actually and reasonably incurred in connection with any such action
(including without limitation the investigation, defense, settlement or appeal
of such action).
13
<PAGE>
Section 5. Expenses (including attorneys' fees) actually and reasonably
incurred by a person who may be entitled to indemnification hereunder in
defending an action, suit or proceeding, whether civil, criminal,
administrative, investigative or appellate, 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 person to repay such amount if it
shall ultimately be determined that he is not entitled to indemnification by the
corporation. Notwithstanding the foregoing, no advance shall be made by the
corporation if a determination is reasonably and promptly made by (i) the board
of directors by a majority vote of a quorum consisting of directors who were not
parties to the action, suit or proceeding for which the advancement is
requested, (ii) if a quorum is not obtainable, or even if obtainable, if a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders, that, based upon the facts known
to the board, counsel or stockholders at the time such determination is made,
such person acted in bad faith and in a manner that such person did not believe
to be in or not opposed to the best interest of the corporation, or, with
respect to any criminal proceeding, that such person believed or had reasonable
cause to believe his conduct was unlawful. In no event shall any advance be made
in instances where the board, stockholders or independent legal counsel
reasonably determines that such person deliberately breached his duty to the
corporation or its stockholders.
Section 6. The indemnification and advancement of expenses provided by
this Article IX shall not be exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
statute, under the certificate of incorporation, by-laws, agreement, vote of
stockholders or disinterested directors, policy of insurance or otherwise, both
as to action in their official capacity and as to action in another capacity
while holding their respective offices, and shall not limit in any way any right
which the corporation may have to make additional indemnifications with respect
to the same or different persons or classes of persons. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article IX
shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of the heirs, executors, administrators
and estate of such a person.
Section 7. Upon resolution passed by the board of directors, 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 serving at the
request of the corporation as a director or officer of any Other Enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would have the power to indemnify him against such liability under the
provisions of this Article IX.
Section 8. The rights granted by this Article IX shall be vested in
each person entitled to indemnification hereunder as a bargained-for,
contractual condition of such person's acceptance of his election or appointment
as a director or officer of the corporation or serving at the request of the
corporation as a director or officer of any Other Enterprise and while this
Article IX may be amended or repealed, no such amendment or repeal shall
release, terminate or adversely affect the rights of such person under this
Article IX with respect to any act taken or the failure to take any act by such
person prior to such amendment or repeal or with respect to any action, suit or
proceeding with respect to such act or failure to act filed after such amendment
or repeal.
14
<PAGE>
Section 9. For purposes of this Article IX, references to "the
corporation" shall, if and only if the board of directors shall determine,
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 or persons serving at the
request of such constituent corporation as a director or officer of any Other
Enterprise, so that any person who is or was a director or officer of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director or officer of any Other Enterprise, shall stand in the
same position under the provisions of this Article IX 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.
Section 10. For the purpose of this Article IX, references to "Other
Enterprises" or "Other Enterprise" shall include without limitation any other
corporation, partnership, joint venture, trust or employee benefit plan;
references to "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; references to "defense" shall include
investigations of any threatened, pending or completed action, suit or
proceeding as well as appeals thereof and shall also include any defensive
assertion of a cross claim or counterclaim; and references to "serving at the
request of the corporation" shall include any service as a director or officer
of a 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 he
reasonably believed to be in the interest of the participants and beneficiaries
of any 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
IX. For the purpose of this Article IX, unless the board of directors of the
corporation shall determine otherwise, any director or officer of the
corporation who shall serve as an officer or director of any Other Enterprise of
which the corporation, directly or indirectly, is a stockholder or creditor, or
in which the corporation is in any way interested, shall be presumed to be
serving as such director or officer at the request of the corporation. In all
other instances where any person shall serve as a director or officer of an
Other Enterprise, if it is not otherwise established that such person is or was
serving as such director or officer at the request of the corporation, the board
of directors of the corporation shall determine whether such person is or was
serving at the request of the corporation, and it shall not be necessary to show
any actual or prior request for such service, which determination shall be final
and binding on the corporation and the person seeking indemnification.
Section 11. If any provision of this Article IX or the application of
any such provision to any person or circumstance is held invalid, illegal or
unenforceable for any reason whatsoever, the remaining provisions of this
Article IX and the application of such provisions to other persons or
circumstances shall not be affected thereby and to the fullest extent possible
the court finding such provision invalid, illegal or unenforceable shall modify
and construe the provisions so as to render it valid and enforceable as against
all persons or entities and to give the maximum possible protection to persons
subject to indemnification hereby within the bounds of validity, legality and
enforceability. Without limiting the generality of the foregoing, if any officer
or director of the corporation or any person who is or was serving at the
request of the corporation as a director or officer of any Other Enterprise, is
entitled under any provision of this Article IX, to indemnification by the
corporation for some or a portion of the judgments, amounts paid in settlement,
attorneys' fees, ERISA excise taxes or penalties, fines or other expenses
actually and reasonably incurred by any such person in connection with any
threatened, pending or completed action, suit or proceeding (including without
limitation, the investigation, defense, settlement or appeal of such action,
suit or proceeding), whether civil, criminal, administrative, investigative or
appellate, but not, however, for all of the total amount thereof, the
corporation shall nevertheless indemnify such person for the portion thereof to
which such person is entitled.
15
<PAGE>
AMENDMENT TO THE BY-LAWS
OF
APPLEBEE'S INTERNATIONAL, INC.
Section 1 of Article III is amended by adding at the end of the Present Section
1 the following paragraph:
"Nominations of persons for election to the board of directors of the
corporation may be made by or at the direction of the board of directors, by any
nominating committee or person appointed by the board of directors, or by any
shareholder of the corporation entitled to vote for the election of directors at
the meeting who complies with the notice procedures set forth in this Section 1
of Article III. Such nominations, other than those made by or at the direction
of the board of directors, shall be made pursuant to written notice to the
secretary of the corporation complying with the requirements of this Section. To
be timely, a shareholder's notice shall be delivered to or mailed and received
at the principal executive offices of the corporation not less than 60 days nor
more than 75 days prior to the meeting; provided, however, that in the event
first notice or first public disclosure of the date of the meeting is given or
made to shareholders during the 60 day period prior to the meeting, notice by
the shareholder to be timely must be so delivered or received not later than the
close of business of the 10th day following the day on which such notice of the
date of the meeting was mailed or such public disclosure was made. Such
shareholder's notice to the secretary shall include:
(a) as to each whom the shareholder proposes to nominate for election
or re-election as a director,
(i) the name, age, business address and residence address of
the person;
(ii) the principal occupation or employment of the person;
(iii) the class and number of shares of capital stock of the
corporation which are beneficially owned by the person;
(iv) any other information relating to the person as would be
required to be disclosed in solicitation of proxies for election of
directors pursuant to the proxy rules of the Securities and Exchange
Commission had such person be nominated, or intended to be nominated,
by the board of directors of the corporation; and
(v) the written consent of such person to serve as director of
the corporation if so elected; and
(b) As to the shareholder giving the notice,
(i) the name and record address of the shareholder;
(ii) the class and number of shares of capital stock of the
corporation which are beneficially owned by the shareholder;
(iii) a representation that the shareholder is holder of
record of capital stock of the corporation entitled to vote at such
meeting and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; and
(iv) a description of all arrangements or understandings
between the shareholder and each nominee and any person or persons
(naming such person or persons) pursuant to which the nomination or
nominations are to be made by the shareholder.
The corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the corporation to determine the
eligibility of such proposed nominee to serve as director of the corporation. No
person shall be eligible for election as a director of the corporation, and the
chairman of the meeting may refuse to acknowledge the nomination of any person,
unless such person nominated in compliance with the foregoing procedure."
<PAGE>
Applebee's International, Inc.
Amendment to Bylaws - August 15, 1994
FIXING OF RECORD DATE
Section 5. (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, or entitled to receive
payments of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful
action other than stockholder action by written consent, the Board of
Directors may fix a record date, which shall not precede the date such
record date is fixed and shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to
any such other action. If no record date is fixed, 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. The record date for any
other purpose other than stockholder action by written consent shall be
at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto. 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; provided, 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 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 date shall
not be more than 10 days after the date upon which the resolution
fixing the record date is adopted by the Board of Directors. Any
stockholder of record seeking to have the stockholders authorize or
take corporate action by written consent shall, by written notice to
the Secretary, provide a copy of the corporate action proposed to be
authorized or taken and request the Board of Directors to fix a record
date. The Board of Directors shall promptly, but in all events within
10 days after the date on which such a copy of the proposed corporate
action and request are received, adopt a resolution fixing the record
date. If no record date has been fixed by the Board of Directors within
10 days of the date on which such a request is received, 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 applicable 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 the State of Delaware, its principal place of
business, or any officer or agent of the corporation having custody of
the book in which proceedings of meeting 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. If no
record date has been fixed by the Board of Directors and prior action
by the Board of Directors required by applicable 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 date
on which the Board of Directors adopts the resolution taking such prior
action.
<PAGE>
Applebee's International, Inc.
Amendment to Bylaws - March 8, 1995
Section 1 of Article 3 is amended by deleting the first paragraph of Section 1
of Article III and inserting in its place and stead the following:
"Section 1. Number; Election, Terms. The business and affairs of the
corporation shall be managed by the board of directors. The number of directors
which shall constitute the whole board of directors of the corporation shall not
be less than six nor more than ten. The exact number of directors within the
minimum and maximum limitations specified in the preceding sentence shall be
fixed from time to time by the board of directors pursuant to a resolution
adopted by the affirmative votes of at least all but one of the entire board of
directors."
AMENDMENT NO. 2
EMPLOYMENT AGREEMENT
APPLEBEE'S INTERNATIONAL, INC.
ABE J. GUSTIN, JR.
THIS AGREEMENT, made and entered effective this 1st day of June, 1995,
by and between Abe J. Gustin, Jr. ("Employee") and Applebee's International,
Inc. ("Company");
W I T N E S S E T H:
Whereas, Company and Employee entered an Employment Agreement dated
March 1, 1992, which provided for an initial term through March 1, 1995, and
Whereas, Comapny and Employee extended the term of that Employment
Agreement to and including this date by way of an amendment thereto dated March
1, 1995, and
Whereas, the parties desire to extend the term of said Employment
Agreement,
NOW THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, the parties hereto agree as follows:
1. The term of the Employment Agreement is hereby extended to
and including December 31, 1995, upon the same terms and conditions set forth in
said Employment Agreement, as previously amended.
2. In all other respect, said Employment Agreement, as
previously amended, shall remain in full force and effect, without modification
or change by this amendment.
IN WITNESS WHEREOF, the parties hereto have cause this instrument to be
executed the day and year first above written.
APPLEBEE'S INTERNATIONAL, INC.
By: /s/ Lloyd L. Hill
Lloyd L. Hill, President
/s/ Abe J. Gustin, Jr.
Abe J. Gustin, Jr.
AMENDMENT NO. 3
EMPLOYMENT AGREEMENT
APPLEBEE'S INTERNATIONAL, INC.
RONALD B. RECK
THIS AGREEMENT, made and entered effective this 1st day of June, 1995,
by and between Ronald B. Reck ("Employee") and Applebee's International, Inc.
("Company");
W I T N E S S E T H:
Whereas, Company and Employee entered an Employment Agreement dated
March 1, 1992, which was subsequently amended as of February 28, 1994, and March
1, 1995, and
Whereas, the parties desire to extend the term of said Employment
Agreement,
NOW THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, the parties hereto agree as follows:
1. The term of the Employment Agreement is hereby extended to
and including December 31, 1995, upon the same terms and conditions set forth in
said Employment Agreement, as previously amended.
2. In all other respect, said Employment Agreement, as
previously amended, shall remain in full force and effect, without modification
or change by this amendment.
IN WITNESS WHEREOF, the parties hereto have cause this instrument to be
executed the day and year first above written.
APPLEBEE'S INTERNATIONAL, INC.
By: /s/ Lloyd L. Hill
Lloyd L. Hill, President
/s/ Ronald B. Reck
Ronald B. Reck
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S FORM 10-Q FOR THE QUARTER ENDED JUNE 25, 1995 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 6-MOS 6-MOS
<FISCAL-YEAR-END> DEC-31-1995 DEC-25-1994
<PERIOD-START> DEC-26-1994 DEC-27-1993
<PERIOD-END> JUN-25-1995 JUN-26-1994
<CASH> 3,880 14,749
<SECURITIES> 5,156 8,922
<RECEIVABLES> 10,351 6,624
<ALLOWANCES> 862 486
<INVENTORY> 9,431 5,627
<CURRENT-ASSETS> 30,706 36,915
<PP&E> 165,794 120,031
<DEPRECIATION> 32,131 23,404
<TOTAL-ASSETS> 201,212 165,713
<CURRENT-LIABILITIES> 31,532 29,397
<BONDS> 41,712 34,199
<COMMON> 286 282
0 0
0 0
<OTHER-SE> 124,842 99,322
<TOTAL-LIABILITY-AND-EQUITY> 201,212 165,713
<SALES> 139,141 104,706
<TOTAL-REVENUES> 159,240 118,722
<CGS> 118,231 90,778
<TOTAL-COSTS> 136,498 104,528
<OTHER-EXPENSES> 2,986 1,576
<LOSS-PROVISION> 122 164
<INTEREST-EXPENSE> 1,293 684
<INCOME-PRETAX> 18,941 12,374
<INCOME-TAX> 7,877 4,716
<INCOME-CONTINUING> 11,064 7,658
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> 11,064 7,658
<EPS-PRIMARY> .39 .27
<EPS-DILUTED> .39 .27
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