<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
CHECKERS DRIVE-IN RESTAURANTS, INC.
(Name of Issuer)
Common Stock, par value $.001 per share
Title of Class of Securities
162809-10-7
(CUSIP Number)
Andrew F. Puzder
Executive Vice President and General Counsel
CKE Restaurants, Inc.
1200 North Harbor Boulevard
Anaheim, California 92801
Tel. (714) 774-5796
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
FEBRUARY 19, 1997
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(3) or (4), check the following box
//.
Check the following box if a fee is being paid with the statement //.
<PAGE> 2
SCHEDULE 13D
CUSIP NO.: 162809 10 7
(1) NAME OF REPORTING PERSON: CKE Restaurants, Inc.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: IRS No. 33-0602639
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: WC
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 13,512,727 (1)
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 13,512,727 (1)
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 13,512,727 (1)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 19.9% (2)
(14) TYPE OF REPORTING PERSON: CO
- -------------------------
(1) Represents 6,162,299 shares of common stock and 7,350,428 warrants to
purchase shares of common stock. Does not include 61,636 shares of
Series A Preferred Stock which is not beneficially held.
(2) Based upon 51,768,480 shares of Common Stock outstanding as of October
24, 1996 as reported by the issuer in its 10-Q for the quarterly period
ended September 9, 1996 and an additional 8,771,929 shares of Common
Stock as announced in the Checkers Drive-In Restaurants, Inc.
("Checkers") press release dated February 21, 1997, describing the $20
Million Private Placement.
Page 2 of 72 Pages
<PAGE> 3
SCHEDULE 13D
CUSIP NO.: 162809 10 7
(1) NAME OF REPORTING PERSON: Fidelity National Financial, Inc.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: IRS No. 86-0498599
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: WC
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 2,546,858 (1)
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 2,546,858 (1)
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 2,546,858 (1)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 4.1% (2)
(14) TYPE OF REPORTING PERSON: CO
- -------------------------
(1) Represents 438,596 shares of common stock and 2,108,262 warrants to
purchase shares of common stock. Does not include 4,385 shares of Series
A Preferred Stock which is not beneficially held.
(2) Based upon 51,768,480 shares of Common Stock outstanding as of October
24, 1996 as reported by the issuer in its 10-Q for the quarterly period
ended September 9, 1996 and an additional 8,771,929 shares of Common
Stock as announced in the Checkers press release dated February 21, 1997,
describing the $20 Million Private Placement.
Page 3 of 72 Pages
<PAGE> 4
SCHEDULE 13D
CUSIP NO.: 162809 10 7
(1) NAME OF REPORTING PERSON: William P. Foley, II
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-####
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: PF
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A.
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 1,073,998 (1)
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 1,073,998 (1)
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 1,073,998 (1)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 1.7% (2)
(14) TYPE OF REPORTING PERSON: IN
- -------------------------
(1) Represents 219,298 shares of common stock and 854,700 warrants to
purchase shares of common stock. Does not include 2,192 shares of Series
A Preferred Stock which is not beneficially held.
(2) Based upon 51,768,480 shares of Common Stock outstanding as of October
24, 1996 as reported by the issuer in its 10-Q for the quarterly period
ended September 9, 1996 and an additional 8,771,929 shares of Common
Stock as announced in the Checkers press release dated February 21, 1997,
describing the $20 Million Private Placement.
Page 4 of 72 Pages
<PAGE> 5
SCHEDULE 13D
CUSIP NO.: 162809 10 7
(1) NAME OF REPORTING PERSON: Carl Leo Karcher
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-####
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: PF
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A.
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 679,449 (1)
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 679,449 (1)
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 679,449 (1)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 1.1% (2)
(14) TYPE OF REPORTING PERSON: IN
- -------------------------
(1) Represents 109,649 shares of common stock and 569,800 warrants to
purchase shares of common stock. Does not include 1,096 shares of Series
A Preferred Stock which is not beneficially held.
(2) Based upon 51,768,480 shares of Common Stock outstanding as of October
24, 1996 as reported by the issuer in its 10-Q for the quarterly period
ended September 9, 1996 and an additional 8,771,929 shares of Common
Stock as announced in the Checkers press release dated February 21, 1997,
describing the $20 Million Private Placement.
Page 5 of 72 Pages
<PAGE> 6
SCHEDULE 13D
CUSIP NO.: 162809 10 7
(1) NAME OF REPORTING PERSON: Stephen C. Mahood
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-####
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: PF
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A.
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 186,309 (1)
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 186,309 (1)
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 186,309 (1)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3)
(14) TYPE OF REPORTING PERSON: IN
- -------------------------
(1) Represents 43,859 shares of common stock and 142,450 warrants to purchase
shares of common stock. Does not include 438 shares of Series A
Preferred Stock which is not beneficially held.
(2) Based upon 51,768,480 shares of Common Stock outstanding as of October
24, 1996 as reported by the issuer in its 10-Q for the quarterly period
ended September 9, 1996 and an additional 8,771,929 shares of Common
Stock as announced in the Checkers press release dated February 21, 1997,
describing the $20 Million Private Placement.
(3) Less than 1%.
Page 6 of 72 Pages
<PAGE> 7
SCHEDULE 13D
CUSIP NO.: 162809 10 7
(1) NAME OF REPORTING PERSON: William A. Imparato
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-####
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: PF
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A.
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 166,629 (1)
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 166,629 (1)
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 166,629 (1)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3)
(14) TYPE OF REPORTING PERSON: IN
- -------------------------
(1) Represents 109,649 shares of common stock and 56,980 warrants to purchase
shares of common stock. Does not include 1,096 shares of Series A
Preferred Stock which is not beneficially held.
(2) Based upon 51,768,480 shares of Common Stock outstanding as of October
24, 1996 as reported by the issuer in its 10-Q for the quarterly period
ended September 9, 1996 and an additional 8,771,929 shares of Common
Stock as announced in the Checkers press release dated February 21, 1997,
describing the $20 Million Private Placement.
(3) Less than 1%.
Page 7 of 72 Pages
<PAGE> 8
SCHEDULE 13D
CUSIP NO.: 162809 10 7
(1) NAME OF REPORTING PERSON: C. Thomas Thompson
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-####
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: PF
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A.
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 50,419 (1)
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 50,419 (1)
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 50,419 (1)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3)
(14) TYPE OF REPORTING PERSON: IN
- -------------------------
(1) Represents 21,929 shares of common stock and 28,490 warrants to purchase
shares of common stock. Does not include 219 shares of Series A
Preferred Stock which is not beneficially held.
(2) Based upon 51,768,480 shares of Common Stock outstanding as of October
24, 1996 as reported by the issuer in its 10-Q for the quarterly period
ended September 9, 1996 and an additional 8,771,929 shares of Common
Stock as announced in the Checkers press release dated February 21, 1997,
describing the $20 Million Private Placement.
(3) Less than 1%.
Page 8 of 72 Pages
<PAGE> 9
SCHEDULE 13D
CUSIP NO.: 162809 10 7
(1) NAME OF REPORTING PERSON: Andrew F. Puzder
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-####
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: PF
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A.
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 50,419 (1)
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 50,419 (1)
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 50,419 (1)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3)
(14) TYPE OF REPORTING PERSON: IN
- -------------------------
(1) Represents 21,929 shares of common stock and 28,490 warrants to purchase
shares of common stock. Does not include 219 shares of Series A
Preferred Stock which is not beneficially held.
(2) Based upon 51,768,480 shares of Common Stock outstanding as of October
24, 1996 as reported by the issuer in its 10-Q for the quarterly period
ended September 9, 1996 and an additional 8,771,929 shares of Common
Stock as announced in the Checkers press release dated February 21, 1997,
describing the $20 Million Private Placement.
(3) Less than 1%.
Page 9 of 72 Pages
<PAGE> 10
SCHEDULE 13D
CUSIP NO.: 162809 10 7
(1) NAME OF REPORTING PERSON: Carl A. Strunk
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-####
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: PF
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A.
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 69,419 (1)
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 69,419 (1)
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 69,419 (1)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3)
(14) TYPE OF REPORTING PERSON: IN
- -------------------------
(1) Represents 40,929 shares of common stock and 28,490 warrants to purchase
shares of common stock. Does not include 219 shares of Series A
Preferred Stock which is not beneficially held.
(2) Based upon 51,768,480 shares of Common Stock outstanding as of October
24, 1996 as reported by the issuer in its 10-Q for the quarterly period
ended September 9, 1996 and an additional 8,771,929 shares of Common
Stock as announced in the Checkers press release dated February 21, 1997,
describing the $20 Million Private Placement.
(3) Less than 1%.
Page 10 of 72 Pages
<PAGE> 11
SCHEDULE 13D
CUSIP NO.: 162809 10 7
(1) NAME OF REPORTING PERSON: Frank P. Willey
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-####
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: PF
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A.
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 252,099 (1)
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 252,009 (1)
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 252,099 (1)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3)
(14) TYPE OF REPORTING PERSON: IN
- -------------------------
(1) Represents 109,649 shares of common stock and 142,450 warrants to
purchase shares of common stock. Does not include 1,096 shares of Series
A Preferred Stock which is not beneficially held.
(2) Based upon 51,768,480 shares of Common Stock outstanding as of October
24, 1996 as reported by the issuer in its 10-Q for the quarterly period
ended September 9, 1996 and an additional 8,771,929 shares of Common
Stock as announced in the Checkers press release dated February 21, 1997,
describing the $20 Million Private Placement.
(3) Less than 1%.
Page 11 of 72 Pages
<PAGE> 12
SCHEDULE 13D
CUSIP NO.: 162809 10 7
(1) NAME OF REPORTING PERSON: Patrick F. Stone
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No.###-##-####
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: PF
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A.
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 21,929 (1)
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 21,929(1)
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 21,929 (1)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3)
(14) TYPE OF REPORTING PERSON: IN
- -------------------------
(1) Represents 21,929 shares of common stock. Does not include 219 shares of
Series A Preferred Stock which is not beneficially held.
(2) Based upon 51,768,480 shares of Common Stock outstanding as of October
24, 1996 as reported by the issuer in its 10-Q for the quarterly period
ended September 9, 1996 and an additional 8,771,929 shares of Common
Stock as announced in the Checkers press release dated February 21, 1997,
describing the $20 Million Private Placement.
(3) Less than 1%.
Page 12 of 72 Pages
<PAGE> 13
SCHEDULE 13D
CUSIP NO.: 162809 10 7
(1) NAME OF REPORTING PERSON: Daniel D. Lane
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-####
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: PF
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A.
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 87,719 (1)
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 87,719 (1)
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 87,719 (1)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3)
(14) TYPE OF REPORTING PERSON: IN
- -------------------------
(1) Represents 87,719 shares of common stock. Does not include 877 shares of
Series A Preferred Stock which is not beneficially held.
(2) Based upon 51,768,480 shares of Common Stock outstanding as of October
24, 1996 as reported by the issuer in its 10-Q for the quarterly period
ended September 9, 1996 and an additional 8,771,929 shares of Common
Stock as announced in the Checkers press release dated February 21, 1997,
describing the $20 Million Private Placement.
(3) Less than 1%.
Page 13 of 72 Pages
<PAGE> 14
SCHEDULE 13D
CUSIP NO.: 162809 10 7
(1) NAME OF REPORTING PERSON: Danny Lane
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-####
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: PF
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A.
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 21,929 (1)
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 21,929 (1)
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 21,929 (1)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3)
(14) TYPE OF REPORTING PERSON: IN
- -------------------------
(1) Represents 21,929 shares of common stock. Does not include 219 shares of
Series A Preferred Stock which is not beneficially held.
(2) Based upon 51,768,480 shares of Common Stock outstanding as of October
24, 1996 as reported by the issuer in its 10-Q for the quarterly period
ended September 9, 1996 and an additional 8,771,929 shares of Common
Stock as announced in the Checkers press release dated February 21, 1997,
describing the $20 Million Private Placement.
(3) Less than 1%.
Page 14 of 72 Pages
<PAGE> 15
SCHEDULE 13D
CUSIP NO.: 162809 10 7
(1) NAME OF REPORTING PERSON: Cary H. Thompson
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-####
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: PF
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A.
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 21,929 (1)
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 21,929 (1)
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 21,929 (1)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3)
(14) TYPE OF REPORTING PERSON: IN
- -------------------------
(1) Represents 21,929 shares of common stock. Does not include 219 shares of
Series A Preferred Stock which is not beneficially held.
(2) Based upon 51,768,480 shares of Common Stock outstanding as of October
24, 1996 as reported by the issuer in its 10-Q for the quarterly period
ended September 9, 1996 and an additional 8,771,929 shares of Common
Stock as announced in the Checkers press release dated February 21, 1997,
describing the $20 Million Private Placement.
(3) Less than 1%.
Page 15 of 72 Pages
<PAGE> 16
SCHEDULE 13D
CUSIP NO.: 162809 10 7
(1) NAME OF REPORTING PERSON: Carl N. Karcher
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-####
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: PF
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A.
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 43,859 (1)
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 43,859 (1)
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 43,859 (1)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3)
(14) TYPE OF REPORTING PERSON: IN
- -------------------------
(1) Represents 43,859 shares of common stock. Does not include 438 shares of
Series A Preferred Stock which is not beneficially held.
(2) Based upon 51,768,480 shares of Common Stock outstanding as of October
24, 1996 as reported by the issuer in its 10-Q for the quarterly period
ended September 9, 1996 and an additional 8,771,929 shares of Common
Stock as announced in the Checkers press release dated February 21, 1997,
describing the $20 Million Private Placement.
(3) Less than 1%.
Page 16 of 72 Pages
<PAGE> 17
SCHEDULE 13D
CUSIP NO.: 162809 10 7
(1) NAME OF REPORTING PERSON: C. Howard Lester
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-####
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: PF
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A.
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 131,578 (1)
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 131,578 (1)
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 131,578 (1)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3)
(14) TYPE OF REPORTING PERSON: IN
- -------------------------
(1) Represents 131,578 shares of common stock. Does not include 1,315 shares
of Series A Preferred Stock which is not beneficially held.
(2) Based upon 51,768,480 shares of Common Stock outstanding as of October
24, 1996 as reported by the issuer in its 10-Q for the quarterly period
ended September 9, 1996 and an additional 8,771,929 shares of Common
Stock as announced in the Checkers press release dated February 21, 1997,
describing the $20 Million Private Placement.
(3) Less than 1%.
Page 17 of 72 Pages
<PAGE> 18
SCHEDULE 13D
CUSIP NO.: 162809 10 7
(1) NAME OF REPORTING PERSON: Byron E. Allumbaugh
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON:
S.S. No. ###-##-####
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: PF
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A.
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 43,859 (1)
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 43,859 (1)
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 43,859 (1)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3)
(14) TYPE OF REPORTING PERSON: IN
- -------------------------
(1) Represents 43,859 shares of common stock. Does not include 438 shares of
Series A Preferred Stock which is not beneficially held.
(2) Based upon 51,768,480 shares of Common Stock outstanding as of October
24, 1996 as reported by the issuer in its 10-Q for the quarterly period
ended September 9, 1996 and an additional 8,771,929 shares of Common
Stock as announced in the Checkers press release dated February 21, 1997,
describing the $20 Million Private Placement.
(3) Less than 1%.
Page 18 of 72 Pages
<PAGE> 19
SCHEDULE 13D
CUSIP NO.: 162809 10 7
(1) NAME OF REPORTING PERSON: Ernie Smith
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-####
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: PF
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A.
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 21,929 (1)
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 21,929 (1)
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 21,929 (1)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3)
(14) TYPE OF REPORTING PERSON: IN
- -------------------------
(1) Represents 21,929 shares of common stock. Does not include 219 shares of
Series A Preferred Stock which is not beneficially held.
(2) Based upon 51,768,480 shares of Common Stock outstanding as of October
24, 1996 as reported by the issuer in its 10-Q for the quarterly period
ended September 9, 1996 and an additional 8,771,929 shares of Common
Stock as announced in the Checkers press release dated February 21, 1997,
describing the $20 Million Private Placement.
(3) Less than 1%.
Page 19 of 72 Pages
<PAGE> 20
SCHEDULE 13D
CUSIP NO.: 162809 10 7
(1) NAME OF REPORTING PERSON: Ronald R. Maudsley
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-####
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: PF
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A.
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 21,929 (1)
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 21,929 (1)
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 21,929 (1)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3)
(14) TYPE OF REPORTING PERSON: IN
- -------------------------
(1) Represents 21,929 shares of common stock. Does not include 219 shares of
Series A Preferred Stock which is not beneficially held.
(2) Based upon 51,768,480 shares of Common Stock outstanding as of October
24, 1996 as reported by the issuer in its 10-Q for the quarterly period
ended September 9, 1996 and an additional 8,771,929 shares of Common
Stock as announced in the Checkers press release dated February 21, 1997,
describing the $20 Million Private Placement.
(3) Less than 1%.
Page 20 of 72 Pages
<PAGE> 21
SCHEDULE 13D
CUSIP NO.: 162809 10 7
(1) NAME OF REPORTING PERSON: Paul D. DeFalco
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-####
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: PF
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A.
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 21,929 (1)
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 21,929 (1)
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 21,929 (1)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3)
(14) TYPE OF REPORTING PERSON: IN
- -------------------------
(1) Represents 21,929 shares of common stock. Does not include 219 shares of
Series A Preferred Stock which is not beneficially held.
(2) Based upon 51,768,480 shares of Common Stock outstanding as of October
24, 1996 as reported by the issuer in its 10-Q for the quarterly period
ended September 9, 1996 and an additional 8,771,929 shares of Common
Stock as announced in the Checkers press release dated February 21, 1997,
describing the $20 Million Private Placement.
(3) Less than 1%.
Page 21 of 72 Pages
<PAGE> 22
SCHEDULE 13D
CUSIP NO.: 162809 10 7
(1) NAME OF REPORTING PERSON: Glen W. Cochran
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-####
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: PF
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A.
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 21,929 (1)
(8) SHARED VOTING POWER: 0
(9) SOLE DISPOSITIVE POWER: 21,929 (1)
(10) SHARED DISPOSITIVE POWER: 0
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 21,929 (1)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3)
(14) TYPE OF REPORTING PERSON: IN
- -------------------------
(1) Represents 21,929 shares of common stock. Does not include 219 shares of
Series A Preferred Stock which is not beneficially held.
(2) Based upon 51,768,480 shares of Common Stock outstanding as of October
24, 1996 as reported by the issuer in its 10-Q for the quarterly period
ended September 9, 1996 and an additional 8,771,929 shares of Common
Stock as announced in the Checkers press release dated February 21, 1997,
describing the $20 Million Private Placement.
(3) Less than 1%.
Page 22 of 72 Pages
<PAGE> 23
ITEM 1. SECURITY AND ISSUER.
This Amendment Number 1 (the "Amendment") amends the Statement on
Schedule 13(d) filed with the Securities and Exchange Commission (the "SEC") on
January 24, 1997, relating to the Common Stock, par value $0.001 per share (the
"Common Stock"), of Checkers Drive-In Restaurants, Inc., a Delaware corporation
("Checkers"), with its principal executive offices located at Barnett Bank
Building, 600 Cleveland Street, Eighth Floor, Clearwater, FL 34615.
Other than as set forth herein, there has been no material change in
the information set forth in Schedule 13D.
ITEM 2. IDENTITY AND BACKGROUND
This Amendment is being filed by CKE Restaurants, Inc., a Delaware
corporation ("CKE") and the following persons and entities who are parties to
the Amended and Restated Credit Agreement dated as of November 22, 1996 (the
"Credit Agreement") by and among Checkers, CKE, as agent, and the lenders
identified therein: Fidelity National Financial, Inc., a Delaware corporation
("Fidelity"), William P. Foley, II, Carl Leo Karcher, Stephen C. Mahood, William
A. Imparato, C. Thomas Thompson, Andrew F. Puzder, Carl A. Strunk and Frank P.
Willey (the "Reporting Lenders") and the following persons and entities who are
parties to the Purchase Agreement for Common Stock and Series A Preferred Stock
dated February 19, 1997, (the "Purchase Agreement") by and among Checkers, CKE,
as Agent and certain buyers including those identified herein: Patrick F. Stone,
Daniel D. Lane, Danny Lane, Cary H. Thompson, Carl N. Karcher, C. Howard Lester,
Byron E. Allumbaugh, Ernie Smith, Ronald R. Maudsley, Paul D. DeFalco and Glen
W. Cochran (the "Reporting Buyers"). Mr. William P. Foley, II, is the Chairman
of the Board and Chief Executive Officer of both Fidelity and CKE, and he owns
20.5% of the outstanding shares of common stock of Fidelity. A limited
partnership whose general partner is controlled by Mr. Foley owns 14.9% of the
outstanding shares of common stock of CKE, a corporation controlled by Mr. Foley
owns 1.2% of the outstanding shares of common stock of CKE, and Fidelity owns
2.2% of the outstanding shares of common stock of CKE. Mr. Foley is a
"controlling person" of Fidelity and CKE. (The disclosure of this information
shall not be construed as an admission that Mr. Foley is the beneficial owner of
any of the Common Stock beneficially owned by Fidelity or CKE either for
purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") or for any other purposes and such beneficial ownership is
expressly disclaimed.) The Reporting Lenders and Reporting Buyers have no
agreement between or among themselves to act in concert with respect to Checkers
or its securities which they beneficially own; however, the lenders under the
Credit Agreement and the buyers under the Purchase Agreement have acted and are
expected to continue to act collectively from time to time for purposes related
to the Credit Agreement and the Purchase Agreement, respectively. The filing of
this statement is not to be construed as an admission by the Reporting Lenders
or the Reporting Buyers that they constitute a "group" for purposes of Section
13(d) of the Exchange Act. The filing of this Statement shall not be construed
as an admission that any Reporting Lender or Reporting Buyer is, for purposes of
Section 13(d) or 13(g) of the Exchange Act, the beneficial owner of any shares
of Common Stock which are beneficially owned by any other Reporting Lender or
Reporting Buyer and covered by this Amendment.
The name, business address, present principal occupation or employment
and the name, principal business and address of the corporation or other
organization in which such employment is conducted are set forth below for each
of the Reporting Buyers (not previously reported as Reporting Lenders) who is a
natural person:
<TABLE>
<CAPTION>
NAME BUSINESS ADDRESS PRESENT PRINCIPAL OCCUPATION
---- ---------------- ----------------------------
<S> <C> <C>
Patrick F. Stone 3938 State Street Executive Vice President of
Second Floor Fidelity National Title Insurance Company
Santa Barbara, California 93105 ("FNTIC")
Daniel D. Lane 14 Corporate Plaza Chairman Lane/Kuhn Pacific,
Newport Beach, California 92660 Director CKE and Fidelity
Danny Lane 14 Corporate Plaza Assistant General Manager for
Newport Beach, California 92660 Golf Course Management Company
</TABLE>
Page 23 of 72 Pages
<PAGE> 24
<TABLE>
<S> <C> <C>
Cary H. Thompson 3731 Wilshire Boulevard Chief Operations Officer
10th Floor Aames Financial Corporation,
Los Angeles, California 90010 Director Fidelity
Carl N. Karcher 1200 North Harbor Boulevard Chairman Emeritus, CKE
Anaheim, California 92803
C. Howard Lester 3250 Van Ness Chairman and Chief Executive Officer
San Francisco, California 94109 of Williams-Sonoma, Inc.; Director CKE
Byron E. Allumbaugh 33 Ridgeline Drive Retired Chairman of Ralphs Grocery
Newport Beach, California 92660 Company
Ernie Smith 3938 State Street Executive Vice President and
Second Floor Regional Manager for FNTIC
Santa Barbara, California 93105
Ronald R. Maudsley 3938 State Street Executive Vice President and
Second Floor Regional Manager for FNTIC
Santa Barbara, California 93105
Paul D. DeFalco 3938 State Street Executive Vice President and
Second Floor Regional Manager for FNTIC
Santa Barbara, California 93105
Glen W. Cochran 15770 North Dallas Parkway Executive Vice President
#1200 Lock Box 21 Regional Manager for
Dallas, Texas 75248 for FNTIC
</TABLE>
Each Reporting Buyer who is a natural person is a citizen of the United
States. During the last five years, none of the Reporting Buyers who is a
natural person has been (a) convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or (b) a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a result
of such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER
CONSIDERATION.
On December 17, 1996, the Board of Directors of Checkers adopted
resolutions approving an investment of up to $20,000,000 in cash by one or more
of the Reporting Lenders and others to be determined, in exchange for shares of
common stock and preferred stock to be determined based on a purchase price not
to exceed $1.34 (the closing price of the Common Stock, as reported on the
NASDAQ National Market, on December 16, 1996), less appropriate discounts for
restricted shares. On January 17, 1997, the board appointed a special committee
to oversee the transaction and hired Raymond James and Associates, Inc. to give
a fairness opinion. CKE's Board of Directors adopted resolutions approving the
additional investment on December 18, 1996.
The obligation to file this Amendment was triggered by the purchase by
the Reporting Buyers and others, on February 19, 1997, under Purchase Agreements
of newly issued shares of Checkers' Common Stock, par value $0.001 priced at
$1.14 per share, and Series A Preferred Stock, valued at $114 per share (the
"Series A Stock"), having the rights, preferences, privileges and restrictions
set forth in the Checker's Certificate of Designation of Rights, Privileges and
Preferences. According to the terms of the transaction, the Series A Stock will
be converted into common stock upon the approval of the shareholders at the next
shareholders' meeting. In the event that the shareholders do not approve such
conversion provisions of the Series A Stock, the Series A Stock has a dividend
rate of 14.5% which will be payable quarterly six (6) months after issuance of
the Series A Stock if not converted before June 30, 1997.
Page 24 of 72 Pages
<PAGE> 25
ITEM 4. PURPOSE OF TRANSACTION
Other than as described in the Schedule 13(d), the Reporting Lenders
and Reporting Buyers have no present plans or proposals which relate to or would
result in: (I) the acquisition by any person of additional securities of
Checkers, or the disposition of securities of the Company; (ii) an extraordinary
corporate transaction, such as a merger, reorganization, or liquidation,
involving the Company or any of its subsidiaries; (iii) a sale or transfer of a
material amount of assets of the Company or any of its subsidiaries; (iv) any
change in the present Board of Directors or management of the Company, including
any plans or proposals to change the number or term of directors or to fill any
existing vacancies on the Board; (v) any material change in the present
capitalization or dividend policy of the Company; (vi) any other material change
in the Company's business or corporate structure; (vii) changes in the Company's
charter, by-laws, or other instruments corresponding thereto or other actions
which may impede the acquisition of control of the Company by any person; (viii)
causing a class of securities of the Company to be delisted from a national
securities exchange or to cease to be authorized to be quoted in an inter-dealer
quotation system of a registered national securities association; (ix) a class
of equity securities of the Company becoming eligible for termination of
registration pursuant to Section 12(g)(4) of the Exchange Act; or (x) any action
similar to any of those enumerated above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) This information is hereby incorporated by reference as described
in points 7-13 of the cover page for each Reporting Lender and Reporting Buyer.
(b) Each Reporting Lender and Reporting Buyer will have the sole power
to vote direct the voting of, dispose of and direct the disposition of any
Common Stock when acquired by it.
(c) None of the Reporting Lenders or Reporting Buyers has effected any
transactions between February 19, 1997 and March 4, 1997.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Each Reporting Buyer is a party to the Purchase Agreement, a copy of
which is filed as an Exhibit hereto and is incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
99.01 The form of Purchase Agreement dated as of February 19, 1997,
which Purchase Agreement was executed among Checkers Drive-In
Restaurants, Inc., and each of the Buyers, including the Reporting
Buyers.
99.02 Designation of Rights Agreement dated February 19, 1997.
99.03 Joint Filing Agreement among CKE, Fidelity, William P. Foley, II,
Carl Leo Karcher, Stephen C. Mahood, William A. Imparato, C.
Thomas Thompson, Andrew F. Puzder, Carl A. Strunk and Frank P.
Willey, Patrick F. Stone, Daniel D. Lane, Danny Lane, Cary H.
Thompson, Carl N. Karcher, C. Howard Lester, Byron E. Allumbaugh,
Ernie Smith, Ronald R. Maudsley, Paul D. DeFalco and Glen W.
Cochran . 99.04 Power of Attorney for William P. Foley, II, Carl
Leo Karcher, Stephen C. Mahood, William A. Imparato, C. Thomas
Thompson, Andrew F. Puzder, Carl A. Strunk and Frank P. Willey,
Patrick F. Stone, Daniel D. Lane, Danny Lane, Cary H. Thompson,
Carl N. Karcher, C. Howard Lester, Byron E. Allumbaugh, Ernie
Smith, Ronald R. Maudsley, Paul D. DeFalco and Glen W. Cochran.
99.05 The Press Release issued by Checkers dated February 21, 1997.
Page 25 of 72 Pages
<PAGE> 26
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
March 5, 1997 CKE RESTAURANTS, INC.
By: /s/ Robert A. Wilson
---------------------------------------
Robert A. Wilson
Secretary
Page 26 of 72 Pages
<PAGE> 27
EXHIBIT INDEX
<TABLE>
<S> <C> <C>
99.01 The form of Purchase Agreement dated as of February 19, 1997, which Purchase Agreement
was executed among Checkers Drive-In Restaurants, Inc. and each of the Buyers, including the
Reporting Buyers. Page 28
99.02 Designation of Rights Agreement dated February 19, 1997. Page 53
99.03 Joint Filing Agreement among CKE, Fidelity, William P. Foley, II, Carl Leo Karcher,
Stephen C. Mahood, William A. Imparato, C. Thomas Thompson, Andrew F. Puzder,
Carl A. Strunk, Frank P. Willey, Patrick F. Stone, Daniel D. Lane, Danny Lane,
Cary H. Thompson, Carl N. Karcher, C. Howard Lester, Byron E. Allumbaugh, Ernie Smith,
Ronald R. Maudsley, Paul D. DeFalco and Glen W. Cochran. Page 63
99.04 Power of Attorney for William P. Foley, II, Carl Leo Karcher, Stephen C. Mahood,
William A. Imparato, C. Thomas Thompson, Andrew F. Puzder, Carl A. Strunk,
Frank P. Willey, Patrick F. Stone, Daniel D. Lane, Danny Lane, Cary H. Thompson,
Carl N. Karcher, C. Howard Lester, Byron E. Allumbaugh, Ernie Smith, Ronald R. Maudsley,
Paul D. DeFalco and Glen W. Cochran. Page 68
99.05 The Press Release issued by Checkers dated February 21, 1997. Page 71
</TABLE>
Page 27 of 72 Pages
<PAGE> 1
EXHIBIT 99.01
Form of Purchase Agreement dated as of February 19, 1997
Page 28 of 72 Pages
<PAGE> 2
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT, dated as of February 19, 1997, is made by
and between CHECKERS DRIVE-IN RESTAURANTS, INC., a Delaware corporation (the
"Company"), and the Buyer named on Exhibit A attached hereto ("Buyer"), with
reference to the following facts:
RECITALS
A. The Company, specified Lenders (including Buyer) and CKE
RESTAURANTS, INC., a Delaware corporation, as Agent (the "Agent"), have
heretofore entered into that certain Amended and Restated Credit Agreement dated
as of November 22, 1996 (the "Credit Agreement"), which provided for
restructuring of certain loans made to the Company and other transactions
specified therein.
B. Pursuant to the Credit Agreement, the Company issued Warrants to
Purchase Common Stock to Lenders and agreed to register a rights offering (the
"Rights Offering") pursuant to which all holders of the Company's Common Stock
and Warrants would receive rights to purchase additional Common Stock of the
Company at a specified purchase price.
C. Lenders and the Agent desire and intend to waive the Company's
obligation to register the Rights Offering and to substitute in lieu thereof a
right of specified Lenders (including Buyer) (collectively, "Purchasers") to
purchase newly issued shares of the Company's Common Stock, par value $0.001
(the "Common Stock), and Series A Preferred Stock, par value $0.001 per share
(the "Series A Stock"), having the rights, preferences, privileges and
restrictions set forth in the Company's Certificate of Designation of Rights,
Privileges and Preferences, substantially in the form attached hereto as Exhibit
B (the "Certificate") and incorporated herein by reference. The Common Stock and
the Series A Stock are referred to collectively herein as the "Stock."
D. At a meeting held on December 17, 1996, the Board of Directors of
the Company approved acceptance of an offer from the Agent with respect to the
transaction, subject to the conditions that (i) the purchase price for the
Common Stock be no less than the closing sales price of the Company's Common
Stock on December 16, 1996, as reported on the NASDAQ National Market ($1.34 per
share), discounted to reflect that the Common Stock will be "restricted shares"
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act"), (ii) the transaction be approved by a committee of the Board of Directors
of the Company, comprised of disinterested directors (the "Special Committee"),
(iii) the Special Committee receives a fairness opinion with respect to the
transaction from a nationally recognized investment banking firm, (iv) the
transaction complies with all applicable laws, rules and regulations, including
those governing securities transactions, and (v) the Purchasers and the Special
Committee negotiate and approve definitive documentation relating to the
transaction.
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E. The Company believes that waiver of the obligation to conduct the
Rights Offering, sale of the Stock to be purchased hereunder to Purchasers and
consummation of the other transactions described herein are in the best
interests of the Company.
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
1. Purchase and Sale.
1.1 Purchase and Sale. Subject to the provisions of
this Agreement, on the Closing Date (as defined herein) the Company will sell to
Buyer, and Buyer will purchase from the Company the number of shares of Common
Stock (at a purchase price of $1.14 per share) and the number of shares of
Series A Stock (at a purchase price of $114.00 per share) specified on Exhibit A
attached hereto (collectively, the "Shares").
1.2 Payment of Purchase Price. The Purchase Price
shall be paid by Buyer to the Company on the Closing Date (as defined herein) by
wire transfer of immediately available funds in accordance with the wire
instructions set forth on Exhibit C attached hereto.
2. Closing of Purchase and Sale.
2.1 Closing; Closing Date. The purchase and sale
of the Shares pursuant to Section 1 (the "Closing") shall take place at the
offices of Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP, 2121
Avenue of the Stars, 18th Floor, Los Angeles, CA 90067, or at such other place
as may be agreed upon by the Company and Buyer, at 10:00 a.m. Pacific time on
February 21, 1997 or at such other time as may be agreed upon by both the
Company and Buyer (the "Closing Date").
2.2 Transactions at Closing. At the Closing,
(a) The Company shall deliver to Buyer:
(i) An opinion of Shumaker,
Loop & Kendrick, LLP, substantially in the form of Exhibit D hereto;
(ii) A duly executed Compliance
Certificate, substantially in the form of Exhibit E hereto;
(iii) Certificates representing
the Shares being purchased hereunder and delivered pursuant to
Section 1.1 hereof;
(iv) Evidence of filing of the
Certificate of Designation with the Delaware Secretary of State;
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<PAGE> 4
(v) Evidence that the
Notification of Listing of Additional Shares with respect to the
Common Stock to be purchased pursuant hereto has been received by the
NASDAQ National Market; and
(vi) Such other documents and
instruments as Buyer may reasonably request relating to the
existence, status and capacity of the Company and the corporate
authority for, and the validity, force and effect of this Agreement.
(b) Buyer shall deliver to the Company:
(i) a wire transfer of immediately available funds in the amount of the purchase
price specified on Exhibit A attached hereto; (ii) evidence that waiver of the
Rights Offering has been approved by the Required Lenders (as defined in the
Credit Agreement); and (iii) evidence that the Required Lenders have approved
the execution, delivery and performance of this Agreement by the Company.
(c) The other conditions set forth in
Sections 6 and 7 hereof shall have been satisfied.
3. Representations and Warranties of the Company. The
Company represents and warrants that:
3.1 Organization, Standing and Qualification. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has full corporate power and
authority to own, lease and operate its property and assets and to conduct its
business as presently and proposed to be conducted by it. The Company has all
requisite corporate power and authority to enter into and perform its
obligations under this Agreement and to carry out the transactions contemplated
by this Agreement.
3.2 Credit Agreement Representations and Warranties.
Except as set forth on Schedule 3.2 hereto, the representations and warranties
of the Company set forth in the Credit Agreement are true and correct on and as
of the date hereof as if made on such date.
3.3 Capitalization.
(a) Authorized Capital Stock. Immediately
prior to the Closing, the authorized capital stock of the Company will consist
of:
(i) Common Stock. 100,000,000
shares of Common Stock, par value $0.001 per share (the "Common
Stock"), of which (i) 51,768,480 shares are issued and outstanding as
of the date of this Agreement; (ii) 29,300,000 shares are initially
reserved for issuance upon exercise of the warrants and options
listed in Schedule 3.3 hereof; and (iii) 209,524 shares are initially
reserved for issuance pursuant to certain contracts to issue Common
Stock, as listed in Schedule 3.3 hereto. The Company has a sufficient
number of shares of unissued and
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<PAGE> 5
unreserved Common Stock to enable it to issue the Common Stock being
sold pursuant hereto, and, upon approval of the Company's
stockholders of the proposal referred to in Section 8.1 hereof, the
Company will have a sufficient number of shares of unissued and
unreserved Common Stock to enable it to issue the Common Stock
issuable upon conversion of the Series A Stock to be purchased by
Buyer and the other Purchasers on the Closing Date.
(ii) Preferred Stock. 2,000,000
shares of Preferred Stock, $0.001 par value per share (the "Preferred
Stock"), of which 87,719 shares have been designated as Series A
Stock and none of which will be issued and outstanding prior to the
Closing Date.
(b) Warrants, Options and Other
Subscription Rights. Except as set forth in Schedule 3.3 hereto and as
contemplated herein, there are (i) no outstanding warrants, options, convertible
securities or rights to subscribe for or purchase any capital stock or other
securities from the Company, (ii) to the best knowledge of the Company, no
voting trusts or voting agreements among, or irrevocable proxies executed by,
shareholders of the Company, (iii) no existing rights of stockholders to require
the Company to register any securities of the Company or to participate with the
Company in any registration by the Company of its securities, (iv) to the best
knowledge of the Company, no agreements among stockholders providing for the
purchase or sale of the Company's capital stock and (v) no obligations
(contingent or otherwise) of the Company to purchase, redeem or otherwise
acquire any shares of its capital stock or any interest therein or to pay any
dividend or make any other distribution in respect thereof.
(c) Validity of Securities. All
outstanding securities of the Company are duly authorized and validly issued in
accordance with applicable law (including federal and state securities laws),
fully paid and non-assessable. Subject only to approval by the Company's
stockholders of the matters set forth in Section 8.1 hereof, the Shares, when
issued, sold and delivered in accordance with the terms of this Agreement, and
the Common Stock issuable upon conversion of the Series A Stock, when issued and
delivered in accordance with the Certificate of Designation, will be duly
authorized, validly issued, fully paid and non-assessable, and will be free and
clear of all liens and restrictions, other than liens resulting from the actions
of Buyer and restrictions on transfer imposed by the Securities Act, applicable
state securities laws or this Agreement. Subject only to approval by the
Company's shareholders of the matters set forth in Section 8.1 hereof, the
Series A Stock, when issued, sold and delivered in accordance with the terms of
this Agreement, will have the rights, preferences and privileges specified in
the Certificate of Designation. Holders of shares of the Company's capital stock
have no preemptive rights.
3.4 Authorization; Enforceability. Except as set
forth in Schedule 3.4 hereto, all corporate action on the part of the Company
necessary for the authorization, execution, delivery, and performance of all its
obligations under this Agreement, including the authorization, issuance, and
delivery of the Shares being sold under this Agreement and of the Common Stock
issuable upon conversion of the Series A Stock has been taken. This Agreement,
when executed and delivered by or on behalf of the Company, shall constitute
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<PAGE> 6
the valid and legally binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as the enforcement hereof may be
limited by bankruptcy, insolvency or other laws affecting the enforcement of
creditors' rights generally.
3.5 Private Offering. Neither the Company nor
anyone acting on its behalf, other than the persons set forth on Schedule 3.5
hereto, has offered any of the Shares for sale to, or solicited offers to buy
any securities of the Company from, or otherwise approached or negotiated with
respect thereto with any prospective purchaser other than Buyer and the other
Lenders under the Credit Agreement. The Company agrees that neither the Company
nor anyone acting on its behalf, other than the persons set forth on Schedule
3.5 hereto, has offered or will offer the Shares or any part thereof or any
similar securities for issuance or sale to, or solicit any offer to acquire any
of the same from, anyone so as to make the issuance and sale hereunder of the
Shares not exempt from the registration requirements of Section 5 of the
Securities Act. None of the shares of the Company's capital stock issued without
registration under the Securities Act prior to the date hereof and presently
outstanding has been offered or sold in such a manner as to make the issuance
and sale of such shares not exempt from such registration requirements, and all
such shares of capital stock have been offered and sold in compliance with all
applicable federal and state securities laws.
3.6 Filing of SEC Reports. The Company has filed
with the Securities and Exchange Commission (the "Commission") all reports (the
"SEC Reports") required under the Securities Act and the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder. As of their respective dates, the SEC Reports did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements made therein
not misleading.
3.7 Consents and Approvals. Except as set forth on
Schedule 3.7 hereto and for consents that will obtained prior to Closing, the
execution and delivery by the Company of this Agreement and the related
documents and instruments, the offer, issuance and delivery of the Shares, and
the performance by the Company of its obligations under this Agreement and the
related documents and instruments do not require the consent of any person or
entity under any material agreement to which the Company is a party or otherwise
binding on the Company.
3.8 No Conflict with Documents and Instruments.
Except as set forth on Schedule 3.8 hereto, the execution and delivery by the
Company of this Agreement and any related documents and instruments, the offer,
issuance and delivery of the Shares, and the performance by the Company of its
obligations under this Agreement and the related documents and instruments do
not contravene or constitute a default under (a) the charter or by-laws of the
Company, (b) any applicable law or regulation or (c) any agreement, judgment,
injunction, order, decree or other instrument to which the Company is a party or
by which the Company and its assets are otherwise bound.
3.9 Full Disclosure. Neither this Agreement, nor
any certificates
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<PAGE> 7
delivered in connection herewith contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements herein
or therein not misleading, in view of the circumstances in which they were made.
3.10 Brokers and Finders. Except for certain fees
payable to Raymond James & Associates under that certain letter agreement dated
February 4, 1997 with the Company and that certain letter agreement dated
January 28, 1997 with the Company, no person or entity has or will have any
valid claim against the Company or any Purchaser as a result of the transactions
contemplated herein for any commission, fee or other compensation as a broker or
finder or in any similar capacity.
4. Representations, Warranties and Covenants of Buyer. Buyer
represents and warrants that:
4.1 Authorization. Buyer has full [corporate] power
and authority to enter into and to perform this Agreement in accordance with its
terms. This Agreement has been duly executed and delivered by it and constitutes
the valid and legally binding obligation of Buyer, except as the enforcement
hereof may be limited by bankruptcy, insolvency or other laws affecting the
enforcement of creditors' rights generally.
4.2 Investment Representations. Buyer is acquiring
the Shares for its own account, for investment purposes and not with a view to,
or for sale in connection with, any distribution of the Shares in violation of
the Securities Act, or any applicable state securities law.
4.3 Investment Experience; Access to Information.
Buyer (a) is an "accredited investor," as that term is defined in Rule 501(a)
promulgated under the Securities Act, (b) is an investor experienced in the
evaluation of businesses similar to the Company, (c) is able to fend for itself
in the transactions contemplated by this Agreement, (d) has such knowledge and
experience in financial, business and investment matters as to be capable of
evaluating the merits and risks of this investment, (e) has the ability to bear
the economic risks of this investment, (f) was not organized or reorganized for
the specific purpose of acquiring the Shares purchased by it, and (g) has been
afforded prior to the Closing Date the opportunity to ask questions of, and to
receive answers from, the Company and to obtain any additional information, to
the extent the Company has such information or could have acquired it without
unreasonable effort or expense, all as necessary for Buyer to make an informed
investment decision with respect to the purchase of the Shares.
4.4 Absence of Registration. Buyer acknowledges
and agrees that:
(a) The Shares to be issued and sold
hereunder are unregistered and may be required to be held indefinitely unless
they are subsequently registered under the Securities Act, or an exemption from
such registration is available.
Except as provided in Section 9 hereof, the Company is under no
obligation to file a registration statement with the Commission with respect to
the Shares.
6
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<PAGE> 8
4.5 Restrictions on Transfer.
(a) Buyer will not offer, sell, pledge,
hypothecate, or otherwise dispose of the Shares unless such offer, sale, pledge,
hypothecation or other disposition (i) is registered under the Securities Act or
(ii) does not violate the Securities Act or any applicable state securities
laws.
(b) The certificates representing the
Shares shall bear a legend stating in substance:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED
UNDER SAID ACT AND LAWS OR, IN THE OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER,
SALE OR TRANSFER, PLEDGE OR HYPOTHECATION DOES NOT VIOLATE THE
PROVISIONS THEREOF.
Upon request of a holder of the Shares, the Company shall remove the legend set
forth above from the certificates evidencing such Shares, or issue to such
holder new certificates therefor free of such legend, if with such request the
Company shall have received an opinion of counsel selected by the holder and
reasonably satisfactory to the Company, in form and substance reasonably
satisfactory to the Company, to the effect that such Shares are not required by
the Securities Act to continue to bear the legend.
4.6 Transfer Instructions. Buyer agrees that the
Company may provide for appropriate transfer instructions to implement the
provisions of Section 4.5 hereof.
4.7 Economic Risk. Buyer understands that it must
bear the economic risk of the investment represented by the purchase of Shares
for an indefinite period.
5. Pre-Closing Covenants.
Each of the parties hereby covenants and agrees that it will
take all action reasonably within its power and authority to duly and timely
carry out all of its obligations hereunder, to perform and comply with all of
the covenants, agreements, representations and warranties hereunder applicable
to it and to cause all conditions to the obligations of the other parties to
close the purchase and sale of the Shares pursuant hereto to be satisfied as
promptly as possible.
6. Conditions to Closing of Buyer. The obligation of Buyer on
the Closing Date to purchase the Shares under this Agreement shall be subject to
each of the following conditions precedent, any one or more of which may be
waived by Buyer:
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<PAGE> 9
6.1 Fairness Opinion. The Special Committee shall
have received a fairness opinion from Raymond James & Associates, satisfactory
in form and substance to the Special Committee, to the effect that the
transactions provided for herein and in the agreements of even date herewith
with the other Purchasers are fair to the stockholders of the Company, from a
financial point of view (the "Fairness Opinion").
6.2 Representations and Warranties. The
representations and warranties made by the Company herein and, except as
provided in Schedule 3.2, in the Credit Agreement shall be true and accurate on
and as of the Closing Date as if made on such Closing Date.
6.3 Performance. The Company shall have performed
and complied with all agreements and conditions contained herein or in other
ancillary documents incident to the transactions contemplated by this Agreement
required to be performed or complied with by it prior to or at the Closing.
6.4 Consents, Etc. The Company shall have secured
all permits, consents and authorizations that shall be necessary or required
lawfully to consummate this Agreement and to issue the Shares to be purchased by
Buyer at the Closing, and the Certificate of Designation shall have been duly
filed with the Secretary of State of the State of Delaware.
6.5 Minimum Sale. Concurrently with the Closing
hereof, the Company shall close agreements with Purchasers, in substantially the
form of this Agreement, to purchase an aggregate of $19,999,965.06 in Shares,
including an aggregate of 8,771,929 shares of Common Stock at $1.14 per share
and 87,719 shares of Series A Stock at $114.00 per share.
6.6 Proceedings and Documents. All corporate and
other proceedings in connection with the transactions contemplated by this
Agreement and all documents and instruments incident to such transactions shall
be reasonably satisfactory in substance and form to Buyer and its counsel, and
Buyer and its counsel shall have received all such counterpart originals or
certified or other copies of such documents as Buyer or its counsel may
reasonably request.
7. Conditions to Closing of Company. The obligation of the
Company on the Closing Date to issue and sell the Shares to be purchased under
this Agreement shall be subject each of the following conditions precedent, any
one or more of which may be waived by the Company:
7.1 Fairness Opinion. The Special Committee shall
have received the Fairness Opinion, satisfactory in form and substance to it.
7.2 Representations and Warranties. The
representations and warranties made by Buyer herein being true and accurate on
and as of the Closing Date as if made on such Closing Date.
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<PAGE> 10
7.3 Performance. Buyer shall have performed and
complied with all agreements and conditions contained herein or in other
ancillary documents incident to the transactions contemplated by this Agreement
required to be performed or complied with by it prior to or at the Closing.
7.4 Minimum Sale. Concurrently with the Closing
hereof, the Company shall close agreements with Purchasers, in substantially the
form of this Agreement, to purchase an aggregate of $19,999,965.06 in Shares,
including an aggregate of 8,771,929 shares of Common Stock at $1.14 per share
and 87,719 shares of Series A Stock at $114.00 per share.
7.5 Required Lenders' Approval and Waiver. The
Company shall have received approval of the execution, delivery and performance
of this Agreement from the Required Lenders and a waiver from the Required
Lenders of the requirements of Section 2.03(d) and Section 5.03 of the Credit
Agreement, in the form of Exhibit F hereto.
7.6 Proceedings and Documents. All corporate and
other proceedings in connection with the transactions contemplated by this
Agreement and all documents and instruments incident to such transactions shall
be reasonably satisfactory in substance and form to the Company and its counsel,
and the Company and its counsel shall have received all such counterpart
originals or certified or other copies of such documents as Buyer or its counsel
may reasonably request.
8. Post Closing Covenants.
8.1 Proxy Statement. As soon as practicable after
Closing hereof and in any event no later than at its next annual stockholders
meeting, the Company shall include a proposal in its proxy statement to (i)
amend its Certificate of Incorporation either (a) to reduce the number of
outstanding shares through a reverse stock split so as to ensure that a
sufficient number of shares of Common Stock are available for conversion of all
of the Series A Stock, or (b) to authorize a sufficient number of additional
shares of Common Stock so as to provide for conversion of all of the Series A
Stock and (ii) approve conversion of the Series A Stock to Common Stock in
accordance with the terms of the Certificate. The date of the stockholder
approval of such proposal is referred to as the "Approval Date."
8.2 Reservation of Common Stock. From and after the
Approval Date, the Company shall continuously maintain in reserve a number of
shares of Common Stock equal to the Common Stock issuable upon conversion of the
Series A Preferred Stock.
9. Registration Rights. The following provisions govern the
registration of the Company's Common Stock being purchased hereunder and Common
Stock issuable upon conversion of the Series A Stock being purchased hereunder:
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<PAGE> 11
9.1 Definitions. As used herein, the following
terms have the following meanings:
Forms S-1, S-2 and S-3: The forms so designated,
promulgated by the Commission for registration of
securities under the Securities Act, and any forms
succeeding to the functions of such forms, whether or not
bearing the same designation.
Holder: A holder of Registrable Securities, provided that
anyone who acquires any Registrable Securities in a
distribution pursuant to a registration statement filed by
the Company under the Securities Act shall not thereby be
deemed to be a "Holder."
"Register," "registered" and "registration": A registration
effected by filing a registration statement in compliance
with the Securities Act and the declaration or ordering by
the Commission of effectiveness of such registration
statement.
Registrable Securities: All shares of Common Stock sold
hereunder or issuable upon conversion of the Series A Stock
and held by Buyer or by a person to whom registration
rights have been transferred pursuant to the provisions of
this Section 9; and all shares of Common Stock issued by
the Company in respect of such shares.
Required Demand Amount: The number of Registrable
Securities equal to the lesser of (i) 1% of the total
number of shares of Common Stock then outstanding and (ii)
$2,000,000 divided by the average per share closing price
of the Common Stock for the five trading days prior to the
date of the calculation of the Required Demand Amount.
9.2 Shelf Registration.
(a) Filing; Effectiveness. If, at any
time after the one-year anniversary of the Closing Date, the Company receives a
written demand from the Holders of the Required Demand Amount of the Registrable
Securities, the Company shall prepare and file with the Commission a "shelf"
registration statement (the "Shelf Registration Statement") on the appropriate
form for an offering to be made on a continuous or extended basis pursuant to
Rule 415 under the Securities Act (or such successor rule or similar provision
then in effect) covering all of the Registrable Securities. The Company shall
use its commercially reasonable efforts to have the shelf registration filed
within 60 days after the demand is made (the "Target Filing Date") and to have
the Shelf Registration Statement declared effective within 60 days after the
filing is made (the "Target Effective Date") and to keep such Shelf Registration
continuously effective for the period beginning on such date and ending on the
earlier of (i) the date on which the Holders no longer hold any Registrable
Securities and (ii) the first date on which all of the Holders would be entitled
to transfer Shares pursuant to Rule 144(k) under the Securities Act.
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<PAGE> 12
(b) Effective Registration. A
registration will not be deemed to have been effective as a Shelf Registration
Statement unless a Shelf Registration Statement with respect thereto has been
declared effective by the Commission and the Company has complied in all
material respects with its obligations under this Agreement with respect
thereto; provided, however, that if after it has been declared effective, the
offering of Registrable Securities pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the Commission or any other governmental agency or court, such Shelf
Registration Statement will be deemed not to have become effective during the
period of such interference until the offering of Registrable Securities
pursuant to such Shelf Registration Statement may legally resume. If a
registration requested pursuant to this Section 9.2 is deemed not to have been
effected, then the Company shall continue to be obligated to effect a
registration pursuant to this Section 9.2.
(c) Form Used for Registration. In the
event that Form S-3 is not available for use by the Company for a Shelf
Registration Statement pursuant to this Section 9.2, the Company shall prepare
and file a Shelf Registration Statement on such form as shall be available for
use by the Company at the time the Company is obliged to prepare and file a
registration statement hereunder. If the event that Form S-3 thereafter becomes
available for use by the Company, the Company may prepare and file such Form S-3
in order to comply with its obligations hereunder.
9.3 Demand Registration.
(a) Request for Registration. Subject to
Section 9.7 hereof, from time to time after the Shelf Registration Statement
ceases to be effective, or at any time after the first anniversary of the
Closing Date if the Holders elect to use the form of an underwritten offering,
the Holders of the Required Demand Amount of the Registrable Securities may make
written demand that the Company file a registration statement under the
Securities Act with the Commission to register such number of shares of
Registrable Securities as each such Holder may request (which request shall
specify the number of Registrable Securities intended to be disposed of by such
Holder and the intended method of distribution thereof (a "Demand Registration
Statement"). Within 10 days after receipt of such request, the Company shall
give written notice of such registration request to all other Holders and
thereupon the Company shall effect the filing of such Demand Registration
Statement and shall include therein all Registrable Securities with respect to
which the Company has received written requests for inclusion therein (which
request shall specify the number of Registrable Securities intended to be
disposed of by such Holder and the intended method of distribution thereof)
within 15 business days after the receipt by the applicable Holders of the
notice from the Company of a request for Demand Registration Statement. The
Company shall use commercially reasonable efforts to have the Demand
Registration Statement declared effective on or before the date which is 90 days
after receipt by the Company of the applicable request for filing of a Demand
Registration Statement (a "Demand Registration Filing Date").
(b) Effective Registration. The Company's
obligations with respect to a Demand Registration Statement will not be deemed
to have been satisfied unless
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<PAGE> 13
the applicable Demand Registration Statement has been declared effective by the
Commission and the Company has complied in all material respects with its
obligations under this Agreement with respect thereto; provided, however, that
if after it has been declared effective, the offering of Registrable Securities
pursuant to a Demand Registration Statement is interfered with by any stop
order, injunction or other order or requirement of the Commission or any other
governmental agency or court, such Demand Registration Statement will be deemed
not to have become effective during the period of such interference until the
offering of Registrable Securities pursuant to such Demand Registration
Statement may legally resume. If a registration requested pursuant to this
Section 9.3 is deemed not to have been effected, then the Company shall continue
to be obligated to effect a registration pursuant to this Section 9.3.
(c) Selection of Underwriter. If the
Holders elect to conduct an offering pursuant to a Demand Registration Statement
in the form of an underwritten offering, a majority in interest of the
requesting the Holders participating in such Demand Registration Statement shall
have the right to designate and to select one or more nationally recognized
firms of investment bankers reasonably acceptable to the Company to act as the
book-running managing underwriter or underwriters in connection with such
offering and shall select any additional investment bankers and managers
reasonably acceptable to the Company to be used in connection with the offering.
9.4 Piggy-Back Registration.
(a) Request for Registration. At any time
from and after the Closing Date, each time the Company proposes to file a
registration statement under the Securities Act with respect to an offering by
the Company for its own account or for the account of its security holders of
any class of equity security (other than (A) a registration statement on Form
S-4 or S-8 (or any substitute form that is adopted by the Commission) or (B) a
registration statement filed in connection with an exchange offer or offering of
securities solely to the Company's existing security holders), the Company shall
give written notice of such proposed filing to the Holders of Registrable
Securities as soon as practicable (but in no event less than ten business days
before the anticipated filing date), and such notice shall offer such Holders
the opportunity to register such number of shares of Registrable Securities as
each such Holder may request (which request shall specify the Registrable
Securities intended to be disposed of by such Holder and the intended method of
distribution thereof) (a "Piggy-Back Registration"). The Company shall use
reasonable efforts to cause the managing underwriter or underwriters of a
proposed underwritten offering to permit the Registrable Securities requested to
be included in a Piggy-Back Registration to be included on the same terms and
conditions as any other similar securities of the Company or any other security
holder included therein and to permit the sale or other disposition of such
Registrable Securities in accordance with the intended method of distribution
thereof. Any Holder shall have the right to withdraw its request for inclusion
of its Registrable Securities in any registration statement pursuant to this
Section 9.4(a) by giving written notice to the Company of such withdrawal. The
Company may withdraw a Piggy-Back Registration at any time prior to the time it
becomes effective, provided that the Company shall give immediate notice of such
withdrawal to the Holders of Registrable
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Securities requested to be included in such Piggy-Back Registration.
(b) Reduction of Offering. In connection
with an underwritten offering where Piggy-Back Registration has been requested
as provided in Section 9.4(a), the Company shall use commercially reasonable
efforts to cause all Registrable Securities requested to be included in such
Piggy-Back Registration to be included as provided in Section 9.4(a). If the
managing underwriter or underwriters of any such underwritten offering have
given written notice to the Holders of Registrable Securities requesting
inclusion in such offering that it is their opinion that the total number of
shares which the Company, Holders of Registrable Securities and any other
Persons participating in such registration intend to include in such offering is
such as to materially and adversely affect the success of such offering, then
(i) the number of shares to be offered for the account of all other Persons
(other than the Lenders under the Credit Agreement and the Holders)
participating in such registration other than pursuant to demand registration
rights shall be reduced or limited (to zero if necessary) pro rata in proportion
to the respective number of shares requested to be registered by such Persons to
the extent necessary to reduce the total number of shares requested to be
included in such offering to the number of shares, if any, recommended by the
managing underwriter or underwriters and (ii) if such managing underwriter or
underwriters recommend a further reduction in the number of shares in the
offering, then the number of shares to be offered for the account of the Holders
shall be reduced or limited (to zero if necessary) pro rata in proportion to the
respective number of shares requested to be registered by such Holders to the
extent necessary to reduce the total number of shares requested to be include in
such offering to the number of shares, if any, recommended by such managing
underwriter or underwriters.
(c) In the case of any registration
initiated by the Company, the Company shall have the right to designate the
managing underwriter in any underwritten offering.
9.5 Registration Procedures.
(a) In connection with the obligations of
the Company to effect or cause the registration of any Registrable Securities
pursuant to the terms and conditions of this Agreement, the Company shall use
its best efforts to effect the registration and sale of such Registrable
Securities in accordance with the intended method of distribution, and in
connection therewith, the Company will:
(i) prepare and file with the
Commission a registration statement with respect to such shares and
use commercially reasonable efforts to cause such registration
statement to become and remain effective as provided herein;
(ii) prepare and file with the
Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective and current
and to comply with the provisions of the Securities Act with
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<PAGE> 15
respect to the disposition of all shares covered by such registration
statement, including such amendments and supplements as may be
necessary to reflect the intended method of disposition from time to
time of the prospective seller or sellers of such shares;
(iii) furnish to each prospective
seller such number of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities
Act, and such other documents, as such seller may reasonably request
in order to facilitate the public sale or other disposition of the
shares owned by such seller;
(iv) use commercially reasonable
efforts to register or qualify the shares covered by such
registration statement under such other securities or blue sky or
other applicable laws of such jurisdiction within the United States
as each prospective seller shall reasonably request, to enable such
seller to consummate the public sale or other disposition in such
jurisdictions of the shares owned by such seller; provided, however,
that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not at the time so qualified
or to take any action which would subject it to service of process in
suits other than those arising out of the offer or sale of the
Registrable Securities covered by such registration statement in any
jurisdiction where it is not at the time so subject;
(v) furnish to each prospective
seller a signed counterpart, addressed to the prospective sellers, of
an opinion of counsel for the Company, dated the effective date of
the registration statement, covering substantially the same matters
with respect to the registration statement (and the prospectus
included therein) as are customarily covered (at the time of such
registration) in opinions of issuer's counsel delivered to the
underwriters in underwritten public offerings of securities;
(vi) in the event of any
underwritten public offering, enter into and perform its obligations
under an underwriting agreement, in usual and customary form, with
the managing underwriter of such offering; each Holder participating
in such underwriting shall also enter into and perform its
obligations under such an agreement;
(vii) notify each Holder of
Registrable Securities covered by such registration statement at any
time when a prospectus relating thereto is required to be delivered
under the Securities Act or the happening of any event as a result of
which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the
circumstances then existing;
(viii) apply for listing and use
its best efforts to list the Registrable Securities being registered
on any national securities exchange on which
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<PAGE> 16
a class of the Company's equity securities are listed or, if the
Company does not have a class of equity securities listed on a
national securities exchange, apply for qualification and use its
best efforts to qualify the Registrable Securities being registered
for inclusion on the automated quotation system of the National
Association of Securities Dealers, Inc. or on a national securities
exchange; and
(ix) Provide a transfer agent
and registrar for all Registrable Securities registered hereunder and
a CUSIP number for all such Registrable Securities, in each case not
later than the effective date of such registration.
(b) Upon receipt of a notice (a
"Suspension Notice") from the Company of the happening of any event of the kind
described in Section 9.5(a)(vii) hereof, each Holder shall forthwith discontinue
disposition of the Registrable Securities until such Holder's receipt of copies
of a supplemented or amended Prospectus or until it is advised in writing (the
"Advice") by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings which are incorporated
by reference in the Prospectus, and, if so directed by the Company, such Holder
will or will request the managing underwriter or underwriters, if any, to
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Shares current at the time of receipt of such notice.
In the event that the Company shall give any Suspension Notice, (A) the Company
shall use commercially reasonable efforts and take such actions as are
reasonably necessary to render the Advice and to end the Suspension Period as
promptly as practicable and (B) with respect to a Shelf Registration pursuant to
Section 9.2 hereof, the time periods for which the Shelf Registration Statement
is required to be kept effective pursuant to Section 9.2 hereof shall be
extended by the number of days of the Suspension Period unless (x) such
extension would result in the Company's inability to use the financial
statements in the registration statement initially filed pursuant to the Holder
or Holders' request and (y) such correction or update did not result from the
Company's acts or failures to act.
9.6 Information by Holder.
(a) Each Holder of Registrable Securities
and each underwriter designated by a majority in interest of the requesting
Holders, will furnish to the Company such information as the Company may
reasonably require from such seller or underwriter in connection with the
registration statement (and the prospectus included therein).
(b) Failure of a prospective seller of
Registrable Securities to furnish the information and agreements described in
this Section 9.6 shall not affect the obligations of the Company under this
Section 9 to Holders who furnish such information and agreements unless, in the
reasonable opinion of counsel to the Company or the underwriters, such failure
impairs or may impair the viability of the offering or the legality of the
registration statement or the underlying offering.
15
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<PAGE> 17
9.7 Limitations on Required Registrations.
(a) The Company shall not be required to
effect more than two registrations pursuant to Section 9.3 hereof in any
twelve-month period for all Holders on a combined basis.
(b) If at the time of any demand to
register Registrable Securities pursuant to Section 9.3 hereof, the Company is
engaged, or has fixed plans to engage within 90 days of the time of the request,
in a registered public offering as to which the Holders may include such Stock
pursuant to Section 9.4 hereof or is engaged in any other activity that, in the
good faith determination of the Company's Board of Directors, would be adversely
affected by the demanded registration to the material detriment of the Company,
then the Company may at its option direct that such demand be delayed for a
period not in excess of six months from the effective date of such offering, or
the date of commencement of such other material activity, as the case may be,
such right to delay a demand to be exercised by the Company not more than once
in each 12-month period while the rights set forth in Section 9.3 are in effect.
9.8 Expenses of Registration. All expenses incurred
in effecting any registration pursuant to Sections 9.2, 9.3 and 9.4 including,
without limitation, all registration and filing fees, printing expenses,
expenses of compliance with blue sky laws, fees and disbursements of counsel for
the Company, and expenses of any audits incidental to or required by any such
registration, shall be borne by the Company, except:
(a) all expenses, fees and disbursements
of any counsel retained by the Holders, and all underwriting discounts and
commissions shall be borne by the Holders of the securities registered pursuant
to such registration, pro rata according to the quantity of their securities so
registered;
(b) the Company shall not be required to
pay for any expenses of any registration proceeding begun pursuant to Section
9.2 or 9.3 if the registration request is subsequently withdrawn at the request
of the Holders of a majority of the Registrable Securities to be registered (in
which case all participating Holders shall bear such expenses); and
(c) a Holder who withdraws from an
underwritten registration pursuant to Section 9.3 shall be required to pay the
percentage of the expenses of such registration which is equal to the percentage
that the number of shares such Holder requested to be registered bears to the
total number of shares to be registered.
9.9 Indemnification.
(a) Indemnification by Company. To the
extent permitted by law, the Company will indemnify each Holder requesting or
joining in a registration, each agent, officer and director of such Holder, each
person controlling such Holder and each underwriter and selling broker of the
securities so registered (each, an "Indemnitee" and
16
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<PAGE> 18
collectively, "Indemnitees") against all claims, losses, damages and liabilities
(or actions in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any prospectus,
offering circular or other document incident to any registration, qualification
or compliance (or in any related registration statement, notification or the
like) or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation by the Company of the Securities Act, the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or state
securities laws or any rule or regulation promulgated under the Securities Act,
the Exchange Act or a state securities law, in each case applicable to the
Company, and will reimburse each such Indemnitee for any legal and any other
fees and expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, provided, however,
that the Company will not be liable to any Indemnitee in any such case to the
extent that any such claim, loss, damage or liability is caused by any untrue
statement or omission so made in strict conformity with written information
furnished to the Company by an instrument duly executed by such Indemnitee and
stated to be specifically for use therein and except that the foregoing
indemnity agreement is subject to the condition that, insofar as it relates to
any such untrue statement (or alleged untrue statement) or omission (or alleged
omission) made in the preliminary prospectus but eliminated or remedied in the
amended prospectus on file with the Commission at the time the registration
statement becomes effective or in the amended prospectus filed with the
Commission pursuant to Rule 424(b) (the "Final Prospectus"), such indemnity
agreement shall not inure to the benefit of any underwriter, or any Indemnitee
if there is no underwriter, if a copy of the Final Prospectus was not furnished
to the person or entity asserting the loss, liability, claim or damage at or
prior to the time such furnishing is required by the Securities Act; provided,
further, that this indemnity shall not be deemed to relieve any underwriter of
any of its due diligence obligations; provided, further, that the indemnity
agreement contained in this Section 9.9(a) shall not apply to amounts paid in
settlement of any such claim, loss, damage, liability or action if such
settlement is effected without the consent of the Company, which consent shall
not be unreasonably withheld.
(b) Indemnification by Holders. To the
extent permitted by law, each Holder (severally and not jointly) requesting or
joining in a registration and each underwriter and selling broker of the
securities so registered will indemnify the Company and its officers and
directors and each person, if any, who controls any thereof within the meaning
of Section 15 of the Securities Act, and their respective successors against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any prospectus, offering circular or other document
incident to any registration, qualification or compliance (or in any related
registration statement, notification or the like) or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading and will reimburse the
Company and each other person indemnified pursuant to this paragraph (b) for any
legal and any other fees and expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action,
provided, however, that this paragraph (b) shall apply only if (and only to the
extent that) such statement or omission was made in reliance upon and in strict
conformity with written information (including, without limitation, written
negative
17
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<PAGE> 19
responses to inquiries) furnished to the Company by an instrument duly executed
by such Holder, underwriter or selling broker and stated to be specifically for
use in such prospectus, offering circular or other document (or related
registration statement, notification or the like) or any amendment or supplement
thereto; provided, that the indemnity agreement contained in this Section 9.9(b)
shall not apply to amounts paid in settlement of any such claim, loss, damage,
liability or action if such settlement is effected without the consent of the
Holder or underwriter, as the case may be, which consent shall not be
unreasonably withheld; and provided, further, that the obligations of such
Holders shall be limited to an amount equal to the net proceeds received by such
Holder from the sale of Subject Stock in such offering as contemplated herein,
unless such claim, loss, damage, liability or action resulted from such Holder's
fraudulent misconduct.
(c) Each party entitled to indemnification
hereunder (the "indemnified party") shall give notice to the party required to
provide indemnification (the "indemnifying party") promptly after such
indemnified party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the indemnifying party (at its expense) to assume the
defense of any claim or any litigation resulting therefrom, provided that
counsel for the indemnifying party, who shall conduct the defense of such claim
or litigation, shall be reasonably satisfactory to the indemnified party, and
the indemnified party may participate in such defense at such party's expense,
and provided further that the omission by any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under this Section 9.9 except to the extent that the omission results in a
failure of actual notice to the indemnifying party and such indemnifying party
is damaged solely as a result of the failure to give notice. No indemnifying
party, in the defense of any such claim or litigation, shall consent, except
with the consent of each indemnified party, to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect to such claim or litigation.
(d) If the indemnification provided for in
this Section 9.9 is held by a court of competent jurisdiction to be unavailable
to an indemnified party with respect to any loss, liability, claim, damage or
expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such loss, liability,
claim, damage, or expense in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the statements or omissions that resulted
in such loss, liability, claim, damage, or expense as well as any other relevant
equitable considerations. This relative fault of the indemnifying party and of
the indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) Notwithstanding the foregoing, to the
extent that the provisions on indemnification and contribution contained in the
underwriting agreement
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<PAGE> 20
entered into in connection with the underwritten public offering are in conflict
with the foregoing provisions, the provisions in the underwriting agreement
shall control.
(f) The reimbursement required by this
Section 9.9 shall be made by periodic payments during the course of the
investigation or defense, as and when bills are received or expenses incurred.
(g) The obligation of the Company under
this Section 9.9 shall survive the conversion, if any, of the Series A Stock,
the completion of any offering of Registrable Securities in a registration
statement under this Section 9, or otherwise.
9.10 Transfer of Registration Rights. The
registration rights granted to Buyer under this Section 9 may be transferred but
only to (i) a transferee who shall acquire not less than 50% of the outstanding
shares of Registrable Securities held by Buyer, and (ii) affiliates of Buyer.
9.11 "Stand-Off" Agreement. In consideration for the
Company performing its obligations under this Section 9, Buyer agrees as
follows:
(a) For a period of one year from the date of
this Agreement, Buyer shall not sell or otherwise transfer any Registrable
Securities, other than in connection with a corporate reorganization, tender or
exchange offer or other similar circumstances or in a transaction exempt from
the registration requirements of the Securities Act.
(b) For a period of time (not to exceed 120
days) from the effective date of any registration of an underwritten public
offering of securities of the Company (upon request of the Company or of the
underwriters managing such underwritten offering) , Buyer shall not sell, make
any short sale of, loan, grant any option for the purchase of, or otherwise
dispose of any Registrable Securities or any other stock of the Company held by
Buyer, other than shares of Registrable Securities included in the registration,
without the prior written consent of the Company or such underwriters, as the
case may be.
9.12 Delay of Registration. Buyer shall have no
right to take any action to restrain, enjoin, or otherwise delay any
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 9.
9.13 Reports Under Securities Exchange Act of 1934.
With a view to making available to the Holders the benefits of Rule 144
promulgated under the Securities Act and any other rule or regulation of the
Commission that may at any time permit a Holder to sell securities of the
Company to the public without registration or pursuant to a registration on Form
S-3, the Company agrees to file with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act and
the Exchange Act.
10. Miscellaneous.
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<PAGE> 21
10.1 Expenses. Each party to this Agreement shall
bear its own expenses relating to the preparation, execution, delivery and
performance of this Agreement and all transactions contemplated thereby.
10.2 Survival of Agreements. All agreements,
presentations and warranties and covenants contained herein or made in writing
by or on behalf of the Company in connection with the transactions contemplated
hereby shall survive the execution and delivery of this Agreement (despite any
investigation at any time made by Buyer or on their behalf). All statements
contained in any certificate or other instrument executed and delivered by the
Company or its duly authorized officers or representatives pursuant hereto in
connection with the transactions contemplated hereby shall be deemed
representations by the Company hereunder.
10.3 Notices. All notices, requests, consents and
other communications herein shall be in writing and shall be deemed to be
delivered (i) on the date delivered, if personally delivered or transmitted via
facsimile with return confirmation of such transmission; (ii) on the business
day after the date sent, if sent by recognized overnight courier service and
(iii) on the fifth day after the date sent, if mailed by first-class certified
mail, postage prepaid and return receipt requested, as follows:
If to the Company: Checkers Drive-In Restaurants, Inc.
600 Cleveland Street, Eighth Floor
Clearwater, Florida 34617-1079
Attention: Joseph Stein
Facsimile No: (813) 298-2125
Telephone No: (813) 441-3500
with a copy to: Shumaker, Loop & Kendrick, LLP
101 E. Kennedy Blvd., Suite 2800
Tampa, FL 33602
Attention: Darrell C. Smith, Esq.
Facsimile No: (813) 229-1660
Telephone No.: (813) 229-7600
If to Buyer: To the parties listed on Exhibit A
attached hereto.
with a copy to: The counsel listed on Exhibit A
or other such addresses as each of the parties hereto may provide from time to
time in writing to the other parties.
10.4 Modifications; Waiver. Neither this Agreement
nor any provision hereof may be changed, waived, discharged or terminated orally
or in writing, except that any provision
20
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<PAGE> 22
of this Agreement may be amended and the observance of any such provision may be
waived (either generally or in a particular instance and either retroactively or
prospectively) with (but only with) the written consent of the Company and
Buyer.
10.5 Entire Agreement. This Agreement, together with
the schedules and exhibits attached hereto and made a part hereof, contains the
entire agreement between the parties with respect to the transactions
contemplated hereby, and supersedes all negations, agreements, representations,
warranties, commitments, whether in writing or oral, prior to the date hereof.
10.6 Successors and Assigns. Except as otherwise
expressly provided in this Agreement, all of the terms of this Agreement shall
be binding upon and inure to the benefit of and be enforceable by the respective
successors and transferees of the parties hereto.
10.7 Enforcement.
(a) Remedies at Law or in Equity. If
either party hereto shall default in any of its obligations under this Agreement
or if any representation or warranty made by or on behalf of it in this
Agreement or in any certificate, report or other instrument delivered by it
under or pursuant to any term hereof shall be untrue or misleading in any
material respect as of the date of this Agreement or as of the Closing Date or
as of the date it was made, furnished or delivered, the other party may proceed
to protect and enforce its rights by suit in equity or action at law, whether
for the specific performance of any term contained in this Agreement or the
Certificate of Designation, injunction against the breach of any such term or in
furtherance of the exercise of any power granted in this Agreement or the
Certificate of Designation, or to enforce any other legal or equitable right of
such party or to take any one of more of such actions. In the event either party
brings such an action against the other, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
enforcing any right of such prevailing party under or with respect to this
Agreement or the Certificate of Designation, including without limitation such
reasonable fees and expenses of attorneys and accountants, which shall include,
without limitation, all fees, costs and expenses of appeals.
(b) Remedies Cumulative; Waiver. No
remedy referred to herein is intended to be exclusive, but each shall be
cumulative and in addition to any other remedy referred to above or otherwise
available at law or in equity. No express or implied waiver by Buyer of any
default shall be a waiver of any future or subsequent default. The failure or
delay of Buyer in exercising any rights granted hereunder shall not constitute a
waiver of any such right and any single or partial exercise of any particular
right by Buyer shall not exhaust the same or constitute a waiver of any other
right provided herein.
10.8 Execution and Counterparts; Facsimile Execution.
This Agreement may be executed in any number of counterparts, each of which when
so executed and delivered shall be deemed an original, and all such counterparts
together shall constitute one instrument. In addition, to the extent that
receipt is confirmed, this Agreement may be executed and sent by telecopy with
the original to follow by a nationally recognized
21
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<PAGE> 23
overnight delivery service. Each party shall receive a duplicate original of the
counterpart copy or copies executed by it and by the Company.
10.9 Governing Law; Jurisdiction; and Severability.
This Agreement shall be governed by the internal laws of the State of Delaware,
without regard to principles of conflicts of law. Each party hereto consents to
the jurisdiction of any court located in the State of California, County of Los
Angeles for the purpose of any action, suit or proceeding arising out of or
based on this Agreement or any provision hereof. In the event any provision of
this agreement of the application of any such provision to any party shall be
held by a court of competent jurisdiction to be contrary to law, the remaining
provisions of this agreement shall remain in full force and effect.
10.10 Headings. The descriptive headings of the
Sections hereof and the Schedules and Exhibits hereto are inserted only and do
not constitute a part of this Agreement.
22
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<PAGE> 24
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
by their duly authorized officers as of the date first written above.
THE COMPANY CHECKERS DRIVE-IN RESTAURANTS, INC.
By:__________________________
Name:________________________
Title:_______________________
BUYER ___________________________
By:__________________________
Name:________________________
Title:_______________________
23
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<PAGE> 25
EXHIBIT A
BUYER _____________________________________
Common Stock
Purchased _______________________________ shares
($1.14 per share or an aggregate purchase
price of $ ________________________)
Series A Preferred
Stock Purchased _______________________________ shares
($114.00 per share or an aggregate purchase
price of $ _________________________)
24
Page 52 of 72 Pages
<PAGE> 1
EXHIBIT 99.02
Designation of Rights Agreement dated February 19, 1997
Page 53 of 72 Pages
<PAGE> 2
State of Delaware
PAGE 1
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "CHECKERS DRIVE-IN RESTAURANTS, INC.", FILED IN THIS OFFICE ON
THE EIGHTEENTH DAY OF FEBRUARY, A.D. 1997, AT 1 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
[SEAL]
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
2272161 8100 AUTHENTICATION: 8334651
971052144 DATE: 02-18-97
Page 54 of 72 Pages
<PAGE> 3
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 01:00 PM 02/18/1997
971052144 - 2272161
CERTIFICATE OF DESIGNATION
of
SERIES A PREFERRED STOCK
of
CHECKERS DRIVE-IN RESTAURANTS, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
CHECKERS DRIVE-IN RESTAURANTS, INC., a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"Corporation"), in accordance with the provisions of Section 103 thereof, DOES
HEREBY CERTIFY:
That pursuant to the authority vested in the Board of Directors in
accordance with the provisions of the Corporation's Restated Certificate of
Incorporation, as amended (the "Restated Certificate of Incorporation"), the
said Board of Directors on February 12, 1997, adopted the following resolution
creating a series of 87,719 shares of Preferred Stock designated as "Series A
Preferred Stock":
RESOLVED, that pursuant to the authority vested in the
Board of Directors of this Corporation in accordance with the
provisions of the Certificate of Incorporation, Series A of
Preferred Stock, par value $.001 per share, of the Corporation
be and hereby is created, and that the designation and number
of shares thereof and the voting and other powers, preferences
and relative, participating, optional or other rights of the
shares of such series and the qualifications, limitations and
restrictions thereof are as follows:
SERIES A PREFERRED STOCK
1. Designation and Amount. There shall be a series of Preferred
Stock that shall be designated as "Series A Preferred Stock" (hereinafter
referred to as the "Series A Preferred"), and the number of shares constituting
such series shall be 87,719. Such number of shares may be decreased by
resolution of the Board of Directors; provided, however, that no decrease shall
reduce the number of shares of Series A Preferred to less than the number of
shares then issued and outstanding.
1
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<PAGE> 4
2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders
of any shares of any series of Preferred Stock ranking prior and superior to
the shares of Series A Preferred with respect to dividends and distributions
(other than payments on liquidation, dissolution or winding up to which Section
6 hereof is applicable) (hereinafter "Dividends"), each share of Series A
Preferred at that time issued and outstanding, in preference to shares of any
class or series of stock of the Corporation ranking junior to the Series A
Preferred with respect to Dividends, shall be entitled to receive, out of funds
or property legally available for the purpose, a Dividend accruing from the
date hereof and equal, on a per share basis, to $16.53 per annum; provided, that
such Dividends shall accrue from the closing date for the sale of the Series A
Preferred only if either (i) the conversion of the Series A Preferred pursuant
to Section 9 hereof and any change in the number of authorized or outstanding
shares of Common Stock needed to enable the Corporation to fulfill its
obligations hereunder are not approved at the first action by the Corporation's
stockholders occurring after the date hereof (the "Stockholder Approval") or
(ii) the Series A Preferred is not converted into Common Stock prior to June
30, 1997. Such Dividends shall be payable in arrears in cash commencing on
August 19, 1997 and quarterly thereafter, on the 19th day of November, February,
May and August, to holders of record of the Series A Preferred on such dates as
the Board of Directors (or any authorized Committee thereof) may from time to
time determine, but only when and as declared by the Board of Directors (or
such Committee). Such Dividends shall be payable before any Dividends shall be
declared or paid upon, or set apart for, the issued and outstanding Common
Stock or such other stock of the Corporation into which the Common Stock may be
converted (the "Common Stock"), and shall be cumulative, so that if at any time
any Dividends upon the outstanding shares of Series A Preferred shall not have
been paid thereon, or declared and set apart therefor, with respect to all
preceding dividend periods, the amount of the deficiency shall be fully paid,
or declared and funds or property set apart for payment, but without interest,
before any Dividend shall be paid upon, or declared and funds or property set
apart for, the Common Stock.
(B) If at any time any cash Dividend on any other class or
series of Preferred Stock of the Corporation having cumulative Dividend rights
shall be in default, in whole or in part, no cash Dividend shall be paid, or
declared and set apart for payment, on the Series A Preferred unless
concurrently therewith, there shall be paid, or declared and set apart for
payment, without interest, all Dividends for all prior dividend periods on any
other class or series of cumulative Preferred Stock of the Corporation which
may hereafter be created having with respect to Dividend rights priority over
or parity with the Series A Preferred; provided, however, in the event such
default in Dividend payments is with respect only to the Series A Preferred and
any other class or any series of cumulative Preferred Stock of the Corporation
which may hereafter be created having with respect to Dividend rights parity
with the Series A Preferred. Dividends may be paid or declared and set apart
for payment, without interest, on the Series A Preferred and such other class
or series of cumulative Preferred Stock in amount proportional to the amounts
by which such Dividends are in default for the Series A Preferred and such
other class or series of cumulative Preferred Stock.
2
Page 56 of 72 Pages
<PAGE> 5
(C) Dividends paid on the Series A Preferred in an amount
less than the total amount of Dividends at the time accrued and payable shall
be allocated pro rata on a share-by-share basis among all such shares at the
time outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Preferred entitled to receive
payment of a Dividend declared thereon, which record date shall be no more than
60 days prior to the date fixed for the payment thereof.
(D) Any reference to "Dividends" contained herein shall not
be deemed to include any Dividend payable in capital stock of the Corporation,
or in rights or warrants to acquire capital stock of the Corporation, nor shall
any such reference to "Dividends" in relation to issued and outstanding shares
be deemed to limit, curtail, or divest the authority of the Board of Directors
to make any proper distributions of authorized but unissued Common Stock, if
any.
3. Voting Rights. The holders of shares of Series A Preferred
shall have only the following voting rights:
(A) If the Corporation fails to declare and pay two
Dividends, which holders of Series A Preferred are entitled to receive pursuant
to Section 2 hereof, whether or not such failure is for consecutive periods,
then and in such event, the number of directors constituting the Corporation's
Board of Directors shall be increased by two, and the holders of the Series A
Preferred (voting as a separate class) shall be entitled at any annual meeting
of the stockholders to elect two directors of the Corporation; provided,
however, that the holders of Series A Preferred may, through the written
consent of holders of Series A Preferred representing a majority of the issued
and outstanding shares thereof, elect two directors to serve as directors of
the Corporation until their successors are elected at the next annual meeting
of stockholders. The presence in person or by proxy of the person entitled to
vote a majority of the shares of the Series A Preferred at any such meeting
shall constitute a quorum for the purpose of electing directors as hereinabove
provided. Such right of the holders of the Series A Preferred to elect
directors may be exercised until the stockholders of the Corporation approve
the conversion of the Series A Preferred into Common Stock pursuant to Section
9 hereof, and when such conversion is so approved, the right of the holders of
Series A Preferred to elect any directors shall cease. The directors so
elected shall serve until their respective successors shall be elected and
qualified; provided, however, that whenever the holders of the Series A
Preferred shall cease to have the special rights to elect directors as above
provided, the terms of office of all persons elected as directors by the
holders of the Series A Preferred, or elected to fill any vacancies or
directors so elected by the holders of the Series A Preferred, shall thereupon
automatically terminate.
If, during any interval between annual meetings of stockholders for the
election of directors, and while the holders of the Series A Preferred shall be
entitled to elect directors pursuant to this Paragraph (A) of Section 3, the
number of directors who have been elected by the holders of the Series A
Preferred shall, by reason of death, resignation or removal, be less than two,
the vacancy or vacancies in the directors elected by the holders of the Series
A
3
Page 57 of 72 Pages
<PAGE> 6
Preferred may be filled by the written consent of holders of Series A Preferred
representing a majority of the issued and outstanding shares thereof.
(B) The approval of the holders of two-thirds (2/3) of the
outstanding shares of Series A Preferred (voting as a separate class) shall be
required for an amendment of the Restated Certificate of Incorporation which
would materially alter or change the powers, preferences or special rights of
the Series A Preferred so as to affect them adversely.
(C) Except as required by law, holders of the Series A
Preferred shall have no other voting rights and their consent shall not be
required for taking any corporate action.
4. Certain Restrictions.
(A) Whenever Dividends payable on the Series A Preferred as
provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid Dividends, whether or not declared, on shares of Series A Preferred
outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay Dividends on, or redeem or
purchase or otherwise acquire for consideration any shares of stock ranking
with respect to Dividends junior (either as to Dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred;
(ii) declare or pay any Dividends on any shares of
stock ranking with respect to Dividends on a parity (either as to Dividends or
upon liquidation, dissolution or winding up) with the Series A Preferred 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; or
(iii) purchase or otherwise acquire for consideration
any shares of Series A Preferred, or any shares ranking with respect to
Dividends on a parity with the Series A Preferred, except in accordance with a
purchase offer made in writing or by publication (as determined by the Board
of Directors) to all holders of Series A Preferred, or to such holders and
holders of any such shares ranking on a parity therewith, 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 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.
5. Reacquired Shares. Any shares of Series A Preferred purchased
or otherwise acquired by the Corporation in any manner whatsoever shall be
retired promptly after the
4
Page 58 of 72 Pages
<PAGE> 7
acquisition thereof. All such shares shall upon their retirement become
authorized but unissued shares of Preferred Stock and may be reissued as part
of a new series of Preferred Stock to be created by resolution or resolutions
of the Board of Directors, subject to any conditions and restrictions on
issuance set forth herein.
6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the Corporation, no distribution shall be made to
the holders of shares of stock ranking junior (upon liquidation, dissolution or
winding up) to the Series A Preferred unless, prior thereto, the holders of
shares of Series A Preferred shall have received an amount per share equal to
$114.00 plus accrued unpaid Dividends, based upon the number of days elapsed
and a 360-day year (the "Liquidation Preference").
(B) In the event, however, that there are not sufficient
assets available to permit payment in full of the Liquidation Preference and the
liquidation preferences of all other series of Preferred Stock, if any, ranking
(upon liquidation, dissolution or winding up) on a parity with the Series A
Preferred, then such remaining assets shall be distributed ratably to the
holders of such parity shares in proportion to their respective liquidation
preferences.
(C) Neither the merger or consolidation of the Corporation
into or with another corporation nor the merger or consolidation of any other
corporation into or with the Corporation shall be deemed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of this Section
6.
7. Consolidation, Merger, Etc. In case (i) the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the Common Stock is to be exchanged for or changed into other stock or
securities, cash and/or any other property, (ii) a tender or exchange offer for
25% of the outstanding shares of Common Stock is successfully completed, (iii)
the Corporation shall sell all or substantially all of the Corporation's
assets, or (iv) any other event, occurring after a failure by the Company to
obtain the Stockholder Approval at the first action by the Corporation's
stockholders occurring after the date hereof, which results in a change of
control of the Corporation, then in any such case each share of Series A
Preferred shall at the same time be automatically redeemed for the then current
Liquidation Preference.
8. Redemption. The Series A Preferred shall be redeemed for the
then current Liquidation Preference on or prior to the second anniversary of
the date hereof. If the Corporation does not redeem the Series A Preferred as
required by this Section 8, then: (i) the Dividend which holders of the Series
A Preferred are entitled to receive hereunder shall increase to $20.52 per
share per annum; and (ii) if the holders of the Series A Preferred are not
otherwise entitled to elect two directors, the number of directors constituting
the Board of Directors shall be increased by two, and the holders of the Series
A Preferred (voting as a
5
Page 59 of 72 Pages
<PAGE> 8
separate class) shall be entitled to elect two directors of the Corporation in
accordance with the terms and procedures set forth in Section 3 hereof.
9. Conversion
(A) The provisions of this Section 9 are subject to, and shall
not take effect until, approval by the Corporation's stockholders.
(B) Upon the date of the Stockholder Approval (the "Conversion
Date"), the Series A Preferred shall be automatically converted into the Common
Stock and such other capital stock of the corporation as hereinafter provided.
The corporation shall cause a notice of such stockholder approval to be mailed,
as soon as practicable thereafter, to the holders of record of the outstanding
Series A Preferred on the date of such approval, and to the transfer agent, if
any, for the Series A Preferred. Upon the Conversion Date, the holders of the
Series A Preferred shall be deemed to be holders of the number of shares of the
Common Stock into which their shares of Series A Preferred have been converted,
and shall have no rights with respect to the Series A Preferred except to
exchange the certificate(s) representing the holder's shares of Series A
Preferred for certificates representing Common Stock.
(C) Each share of Series A Preferred shall be convertible at
the office of the transfer agent for the Series A Preferred, if any, or at such
other office or offices, as the Board of Directors of the Corporation may
designate, into the number of fully paid and nonassessable shares of Common
Stock of the Corporation (calculated as to each conversion to the nearest
1/100th of a share) obtained by dividing the then current Liquidation
Preference attributable to a share of Series A Preferred by $1.14, subject to
adjustment as provided in Paragraph (F) of this Section 9 (the "Conversion
Rate"). Notwithstanding any other provisions of this Section 9, no change in
the Conversion Rate shall actually be made until the cumulative effect of the
adjustments called for by this Section 9 since the date of the last change in
the Conversion Rate would change the Conversion Rate by more than two percent
(2%). However, once the cumulative effect would result in a two percent (2%)
change, then the conversion rate shall be changed to reflect all adjustments
called for by this paragraph and not previously made.
(D) No fractional shares of Common Stock shall be issued upon
conversion of Series A Preferred but, in lieu of any fraction of a share of
Common Stock which would otherwise be issuable in respect of the aggregate
number of shares surrendered for conversion at one time by the same holder, the
Corporation shall pay in cash an amount equal to the sum of the current market
price of the Corporation's Common Stock multiplied by a number equal to the
fraction of a share.
(E) For the purposes of any computation pursuant to this
Section 9, the current market price of the Corporation's Common Stock shall be
deemed to be the average of the daily closing prices of the Corporation's
Common Stock for the thirty (30) consecutive business days commencing
forty-five (45) business days before the date on which such shares are duly
converted. For purposes of this Section 9, the closing price for each day
shall be the last sale
6
Page 60 of 72 Pages
<PAGE> 9
price of the Corporation's Common Stock on the NASDAQ National Market, or if
the Corporation's Common Stock is not traded on the NASDAQ National Market, the
average of the bid and asked prices as furnished by any New York Stock Exchange
member firm selected from time to time by the Corporation for such purpose, or
if no such bid and asked prices can be obtained from any such firm, the fair
market value of one share of the Common Stock on such day as determined in good
faith by the Board of Directors of the Corporation.
(F) The Conversion Rate shall be subject to adjustment from time to
time in certain cases as follows:
(i) In case the Corporation shall (a) pay a dividend on its
Common Stock in shares of its capital stock, (b) subdivide its outstanding
Common Stock into a greater number of shares, (c) combine the shares of its
outstanding Common Stock into a smaller number of shares, or (d) issue by
reclassification of its Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Corporation is the
continuing corporation) any shares of its capital stock, the Conversion Rate in
effect immediately prior thereto shall be proportionately adjusted so that the
holder of any Series A Preferred thereafter surrendered for conversion shall be
entitled to receive, to the extent permitted by applicable law, the number and
kind of shares of capital stock of the Corporation which he would have owned or
have been entitled to receive after the happening of such event had such Series
A Preferred been converted immediately prior to the happening of such event.
Such adjustment shall be made whenever any of such events shall occur. An
adjustment made pursuant to this Paragraph (F)(i) of Section 9 shall become
effective, retroactively, immediately after the record date in the case of a
stock dividend and shall become effective immediately after the effective date
in the case of subdivision, combination or reclassification.
(ii) In case the Corporation shall issue rights or warrants to
all holders of its Common Stock entitling them (for a period expiring within
forty-five (45) days after the record date mentioned below) to subscribe for or
purchase Common Stock at a price per share less than the current market price
per share of the Common Stock (as defined above) at the record date mentioned
below, the Conversion Rate then in effect shall be adjusted by multiplying it by
the ratio which (a) the number of shares of Common Stock outstanding on the date
of issuance of such rights or warrants plus the number of shares which the
aggregate offering price of the total number of shares so offered would purchase
at such current market price bears to (b) the number of shares of Common Stock
outstanding on the date of issuance of such rights or warrants plus the number
of additional Common Shares offered for subscription or purchase. Such
adjustment shall be made whenever such rights or warrants are issued, and shall
become effective, retroactively, immediately after the record date for the
determination of shareholders entitled to receive such rights or warrants.
(iii) In case the Corporation shall distribute to all holders
of its Common Stock (including any such distribution made in connection with a
consolidation or merger in which the Corporation is the continuing corporation)
evidences of its indebtedness or assets, then in such case the Conversion Rate
then in effect shall be adjusted by multiplying it by the ratio
7
Page 61 of 72 Pages
<PAGE> 10
which (a) the current market price per share of the Common Stock (as defined
above) less the fair market value (as determined in good faith by the Board of
Directors of the Corporation, (based upon the opinion of an independent
investment banking firm), whose determination shall be conclusive) of the
portion of such evidences of indebtedness so distributed applicable to one
share of Common Stock bears to (b) such current market price per share of the
Common Stock at the date of such distribution. Such adjustment shall be made
whenever any such distribution is made, and shall become effective,
retroactively, immediately after the record date for the determination of
shareholders entitled to receive such distribution.
(iv) All calculations hereunder shall be made to the nearest
cent or to the nearest one-hundredth (1/100) of a share, as the case may be.
(v) In the event that at any time, as a result of an
adjustment made pursuant to Paragraph (F)(i) above, the holder of any Series A
Preferred thereafter converted shall become entitled to receive any shares of
capital stock of the Corporation other than its Common Stock, thereafter the
number of such other shares so receivable upon conversion shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Common Stock contained in
Paragraphs (F)(i) to (iv), inclusive, above.
Except as otherwise provided for in this Paragraph (F) of Section 9, no
adjustment shall be made on any conversion for share distributions, dividends,
including, without limitation, dividends in property distributions, theretofore
declared and paid or payable on the Common Stock.
Whenever the Conversion Rate is adjusted as herein provided, the
Corporation shall send to the transfer agent, if any, for the Series A
Preferred and to the record holders of the Series A Preferred a statement
executed by the President as to the new Conversion Rate.
(G) Upon obtaining the Stockholder Approval, the Corporation shall at
all times reserve and keep available, out of its authorized and unissued stock,
solely for the purpose of effecting the conversion of the Series A Preferred,
such number of shares of Common Stock as shall from time to time be sufficient
to effect the conversion of all shares of Series A Preferred from time to time
outstanding.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
14th day of February, 1997.
CHECKERS DRIVE-IN RESTAURANTS, INC.
By: /s/ JAMES T. HOLDER
---------------------------------
James T. Holder
Senior Vice President and
General Counsel
8
Page 62 of 72 Pages
<PAGE> 1
EXHIBIT 99.03
Joint Filing Agreement
Page 63 of 72 Pages
<PAGE> 2
JOINT FILING AGREEMENT
This Agreement dated as of this 17th day of February, 1996 by and among
CKE Restaurants, Inc., a Delaware corporation ("CKE"), Fidelity National
Financial, Inc., a Delaware corporation ("Fidelity"), William P. Foley II
("Foley"), Carl Leo Karcher ("Karcher"), Stephen Mahood ("Mahood"), William A.
Imparato ("Imparato"), Frank P. Willey ("Willey"), C. Thomas Thompson
("Thompson"), Andrew F. Puzder ("Puzder"), Carl A. Strunk ("Strunk")
(collectively, the "Reporting Lender Group"), Patrick F. Stone ("Stone"), Daniel
D. Lane ("Lane"), Danny Lane ("D. Lane"), Cary H. Thompson ("Thompson"), Carl N.
Karcher ("C. N. Karcher"), C. Howard Lester ("Lester'), Byron E. Allumbaugh
("Allumbaugh"), Ernie Smith ("Smith), Ronald R. Maudsley ("Maudsley"), Paul D.
DeFalco ("DeFalco') and Glen W. Cochran ("Cochran") (collectively, the
"Reporting Buyers").
W I T N E S S E T H:
WHEREAS, the Reporting Buyers are required to file an
amendment to Schedule 13D reporting on November 22, 1996, transaction pursuant
to Section 13(d) of the Securities Exchange Act of 1934 (the "Exchange Act"),
and Rule 13d-1 promulgated thereunder, in connection with the Private Placement
of Securities with respect to Checkers Drive-In Restaurants, Inc., a Delaware
corporation ("Checkers"); and
WHEREAS, pursuant to Paragraph (f) of Rule 13d-1, the
undersigned desire to satisfy any Schedule 13D filing obligation under Rule
13d-1 by a single joint filing.
NOW, THEREFORE, in consideration of the premises, the
undersigned hereto agree as follows:
1. The undersigned agree that any amendments to the previously
filed Statement on Schedule 13D a copy of which is attached, and any further
Amendments of such Statement, are filed on behalf of each one of them.
This Agreement may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
Page 64 of 72 Pages
<PAGE> 3
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be duly executed and delivered on the date above indicated.
CKE RESTAURANTS, INC., in its capacity
as a Lender and Buyer and as the Agent
By: /s/ William P. Foley, II
---------------------------------------------
Name: William P. Foley, II
Title: Chief Executive Officer
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ Carl A. Strunk
---------------------------------------------
Name: Carl A. Strunk
Title: Chief Financial Officer
/s/ William P. Foley II
---------------------------------------------
William P. Foley II
/s/ Carl Leo Karcher
---------------------------------------------
Carl Leo Karcher
/s/ Stephen Mahood
---------------------------------------------
Stephen Mahood
/s/ William A. Imparato
---------------------------------------------
William A. Imparato
/s/ Frank P. Willey
---------------------------------------------
Frank P. Willey
/s/ C. Thomas Thompson
---------------------------------------------
C. Thomas Thompson
Page 65 of 72 Pages
<PAGE> 4
/s/ Andrew F. Puzder
---------------------------------------------
Andrew F. Puzder
/s/ Carl A. Strunk
---------------------------------------------
Carl A. Strunk
/s/ Patrick F. Stone
---------------------------------------------
Patrick F. Stone
/s/ Daniel D. Lane
---------------------------------------------
Daniel D. Lane
/s/ Danny Lane
---------------------------------------------
Danny Lane
/s/ Cary H. Thompson
---------------------------------------------
Cary H. Thompson
/s/ Carl N. Karcher
---------------------------------------------
Carl N. Karcher
/s/ C. Howard Lester
---------------------------------------------
C. Howard Lester
/s/ Bryon E. Allumbaugh
---------------------------------------------
Bryon E. Allumbaugh
/s/ Ernie Smith
---------------------------------------------
Ernie Smith
/s/ Ronald R. Maudsley
---------------------------------------------
Ronald R. Maudsley
Page 66 of 72 Pages
<PAGE> 5
/s/ Paul D. DeFalco
---------------------------------------------
Paul D. DeFalco
/s/ Glen W. Cochran
---------------------------------------------
Glen W. Cochran
Page 67 of 72 Pages
<PAGE> 1
EXHIBIT 99.04
Power of Attorney
Page 68 of 72 Pages
<PAGE> 2
POWER OF ATTORNEY
Each of the undersigned hereby constitutes and appoints William
P.Foley II, Andrew F. Puzder and M'Liss Jones Kane, and each of them, with full
power of substitution, his/her true and lawful attorney-in-fact with full power
to sign on his/her behalf any amendments to a Schedule 13D under the Securities
Exchange Act of 1934 originally filed pursuant to a November 22, 1996 event, and
to file the same with theSecurities and Exchange Commission, and to execute any
and all other instruments and take any and all other actions on his/her behalf
as such attorney-in-fact deems necessary or advisable in connection therewith,
and hereby ratifies and confirms all that such attorney-in-fact may lawfully do
or cause to be done by virtue hereof.
EXECUTED as of the date set forth below.
Date: March 3, 1997 /s/ WILLIAM P. FOLEY II
--------------------------------
William P. Foley II
Date: March 3, 1997 /s/ CARL LEO KARCHER
--------------------------------
Carl Leo Karcher
Date: March 3, 1997 /s/ STEPHEN MAHOOD
--------------------------------
Stephen Mahood
Date: March 3, 1997 /s/ WILLIAM A. IMPARATO
--------------------------------
William A. Imparato
Date: March 3, 1997 /s/ FRANK P. WILLEY
--------------------------------
Frank P. Willey
Date: March 3, 1997 /s/ C. THOMAS THOMPSON
--------------------------------
C. Thomas Thompson
Page 69 of 72 Pages
<PAGE> 3
Date: March 3, 1997 /s/ ANDREW F. PUZDER
--------------------------------
Andrew F. Puzder
Date: March 3, 1997 /s/ ROBERT A. WILSON
--------------------------------
Robert A. Wilson
Date: March 3, 1997 /s/ CARL A. STRUNK
--------------------------------
Carl A. Strunk
Date: March 3, 1997 /s/ PATRICK F. STONE
--------------------------------
Patrick F. Stone
Date: March 3, 1997 /s/ DANIEL D. LANE
--------------------------------
Daniel D. Lane
Date: March 3, 1997 /s/ DANNY LANE
--------------------------------
Danny Lane
Date: March 3, 1997 /s/ CARY H. THOMPSON
--------------------------------
Cary H. Thompson
Date: March 3, 1997 /s/ CARL N. KARCHER
--------------------------------
Carl N. Karcher
Date: March 3, 1997 /s/ C. HOWARD LESTER
--------------------------------
C. Howard Lester
Page 70 of 72 Pages
<PAGE> 1
EXHIBIT 99.05
The Press Release issued by Checkers dated February 21, 1997
Page 71 of 72 Pages
<PAGE> 2
FOR IMMEDIATE RELEASE
CHECKERS DRIVE-IN RESTAURANTS, INC. ANNOUNCES COMPLETION OF
$20.0 MILLION PRIVATE PLACEMENT OFFERING
CLEARWATER, FL -- FEBRUARY 21, 1997 -- CHECKERS DRIVE-IN RESTAURANTS, INC.
(NASDAQ:CHKR) today announced that it has received $20.0 million in
consideration for issuing 8,771,929 shares of common stock, $.001 par value,
and 87,719 shares of Series A preferred stock, $114.0 par value. CKE
Restaurants, Inc. which led a qualified investor group, purchased 6,162,299 of
Checkers common stock and 61,636 shares of Checkers Series A preferred stock in
the private placement.
The Series A preferred stock will be converted into common stock upon
shareholder approval at the annual shareholders' meeting and carries a dividend
rate of 14.5% if the shareholders fail to approve the conversion.
Checkers plans to use the proceeds from the private placement to immediately
pay the following:
o $8.0 million to reduce the primary credit facility debt carrying a
13% interest rate;
o $2.5 million outstanding under a revolving line of credit carrying
a 13% interest rate;
o $2.3 million to pay key food and paper distributors; and
o remaining amounts to be used primarily to pay certain other
existing vendors.
Joe Stein, executive vice president and chief financial officer commented, "The
completion of this private placement allows us to improve our relationship with
key suppliers and move forward on certain purchasing projects that will reduce
our food and other costs. Additionally, we will use a portion of the proceeds
to reduce amounts due to our lender group, which will result in a reduction of
interest expense in excess of $1.3 million annually."
Rick Fortman, president and chief operating officer stated, "The receipt of the
private placement funds will allow us to concentrate on improving restaurant
operations and focus on reducing costs associated with food, paper and labor."
Checkers Drive-In Restaurants, Inc., along with its franchisees, operates
approximately 475 double drive-thru hamburger restaurants primarily located in
the Southeast.
Page 72 of 72 Pages
