<PAGE> 1
As filed with the Securities and Exchange Commission on September 1, 1994
Registration No. 33-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
CKE RESTAURANTS, INC.
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
DELAWARE 33-0602639
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1200 NORTH HARBOR BOULEVARD, ANAHEIM, CALIFORNIA 92801
(Address of Principal Executive Offices) (Zip Code)
</TABLE>
CKE RESTAURANTS, INC. 1994 STOCK INCENTIVE PLAN
(Full title of the plan)
<TABLE>
<S> <C>
DONALD E. DOYLE (714) 774-5796
PRESIDENT AND (Telephone Number,
CHIEF EXECUTIVE OFFICER Including Area Code,
1200 NORTH HARBOR BOULEVARD of Agent For Service)
ANAHEIM, CALIFORNIA 92801
(Name and Address of Agent For Service)
</TABLE>
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum Amount of
Title of securities Amount to be offering price aggregate registration
to be registered registered(1) per share(2) offering price(2) fee
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 1,750,000 shares $8.625 $15,093,750 $5,205
(Under the CKE Restaurants, Inc.
1994 Stock Incentive Plan)
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Registrant's 1994 Stock
Incentive Plan by reason of any stock dividend, stock split,
recapitalization or any other similar transaction without receipt of
consideration which results in an increase in the number of outstanding
shares of Common Stock of CKE Restaurants, Inc.
(2) Estimated solely for the purpose of calculating the registration fee
and, pursuant to Rule 457(h) of the Securities Act of 1933, based on
the average of the high and low prices of a share of Common Stock of
the Registrant on the New York Stock Exchange on August 31, 1994.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by Carl Karcher Enterprises, Inc. and
its successor corporation CKE Restaurants, Inc. (collectively, the "Company"),
are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended January 31, 1994, filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act").
(b) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act since January 31, 1994.
(c) The description of the Company's common stock, no par value
(the "Common Stock"), contained in the Company's registration statement on Form
8-B filed under the Exchange Act, including any subsequent amendment or any
report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents (such documents, and the
documents enumerated above, being hereinafter referred to as "Incorporated
Documents").
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
II-1
<PAGE> 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of
Delaware (the "Delaware Law") provides for the indemnification of directors and
officers under certain circumstances, as therein set forth.
The Registrant's By-laws provides that the Registrant shall
indemnify its officers and directors in the manner and to the fullest extent
permitted by the Delaware Law. The By-Laws also permit the Registrant to enter
into indemnification agreements with any one or more of its directors,
officers, employees and agents upon the approval of the Registrant's Board of
Directors.
In addition, the Registrant's Certificate of Incorporation
provides that, pursuant to the Delaware Law, the Registrant's directors shall
not be liable to the Registrant or its stockholders for monetary damages for
breach of fiduciary duty as a director. This provision in the Certificate of
Incorporation does not eliminate the duty of care, and in appropriate
circumstances equitable remedies such as injunctive or other forms of
non-monetary relief will remain available under the Delaware Law. This
provision also does not affect a director's responsibilities under any other
law, such as the federal securities laws or federal environmental laws. The
Certificate of Incorporation further provides that the Registrant shall
indemnify its directors and officers in the manner and to the fullest extent
permitted by the Delaware Law, and requires the Registrant to advance
litigation expenses under certain circumstances. The Certificate of
Incorporation also provides that the indemnification provided therein shall not
be deemed to be exclusive of any other rights to which any person seeking
indemnification from the Registrant may be entitled under any agreement, vote
of stockholders or disinterested directors, or otherwise.
The above discussion of the Registrant's Bylaws, Certificate
of Incorporation and of the Delaware Law is not intended to be exhaustive and
is respectively qualified in its entirety by such Bylaws, Certificate of
Incorporation and the Delaware Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- ------- ----------------------
<S> <C>
4.1 Certificate of Incorporation of the Registrant.
4.2 By-Laws of the Registrant.
5 Opinion and consent of McDermott, Will & Emery as to the legality of the securities being registered.
</TABLE>
II-2
<PAGE> 4
<TABLE>
<S> <C>
23.1 Consent of McDermott, Will & Emery (included in its opinion filed as Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
24 Power of Attorney. Reference is made to page II-5 of this Registration Statement.
99 CKE Restaurants, Inc. 1994 Stock Incentive Plan.
</TABLE>
ITEM 9. UNDERTAKINGS.
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (i) and (ii) shall not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for the purposes of determining any liability under the
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act and each filing of an employee benefit plan's
annual report pursuant to
II-3
<PAGE> 5
Section 15(d) of the Exchange Act that is incorporated by reference in
the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Anaheim, State of California, on August 31,
1994.
CKE RESTAURANTS, INC.
By: /s/ DONALD E. DOYLE
-------------------------------------
Donald E. Doyle
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints each of Donald E. Doyle and Loren
C. Pannier his true and lawful attorney-in-fact and agent, each with full power
of substitution and revocation, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto each such
attorney-in-fact and agent, full power and authority to do and perform such
each and every act and thing requisite and necessary to be done, as fully to
all intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement and the foregoing Power of Attorney have been
signed on August 31, 1994, by the following persons in the capacities
indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE
<S> <C>
/s/ WILLIAM P. FOLEY II Chairman of the Board
- ---------------------------------------
William P. Foley II
/s/ DONALD E. DOYLE President and Chief Executive
- --------------------------------------- Officer and Director (Principal
Donald E. Doyle Executive Officer)
</TABLE>
II-5
<PAGE> 7
<TABLE>
<CAPTION>
SIGNATURES TITLE
<S> <C>
/s/ LOREN C. PANNIER Senior Vice President,
- --------------------------------------- Chief Financial Officer
Loren C. Pannier (Principal Financial Officer)
/s/ LAURIE A. BALL Vice President, Controller
- --------------------------------------- (Principal Accounting Officer)
Laurie A. Ball
/s/ PETER CHURM Director
- ---------------------------------------
Peter Churm
/s/ FRANK P. WILLEY Director
- ---------------------------------------
Frank P. Willey
/s/ CARL L. KARCHER Director
- ---------------------------------------
Carl L. Karcher
/s/ CARL N. KARCHER Director
- ---------------------------------------
Carl N. Karcher
/s/ DANIEL D. (RON) LANE Director
- ---------------------------------------
Daniel D. (Ron) Lane
/s/ ELIZABETH A. SANDERS Director
- ---------------------------------------
Elizabeth A. Sanders
</TABLE>
II-6
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION OF EXHIBIT NUMBER
- ------ ---------------------- ------
<S> <C> <C>
4.1 Certificate of Incorporation of the Registrant.
4.2 By-Laws of the Registrant.
5 Opinion and consent of McDermott, Will & Emery as to the
legality of the securities being registered.
23.1 Consent of McDermott, Will & Emery (included in its opinion
filed as Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
24 Power of Attorney. Reference is made to page II-5 of this
Registration Statement.
99 CKE Restaurants, Inc. 1994 Stock Incentive Plan.
</TABLE>
II-7
<PAGE> 1
EXHIBIT 4.1
CERTIFICATE OF INCORPORATION
OF
CKE RESTAURANTS, INC.
ARTICLE I: Name
The name of the Corporation is CKE Restaurants, Inc.
ARTICLE II: Definitions
For purposes of this Certificate of Incorporation, the following terms
shall have the meanings indicated, and all capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to such terms in Section
203(c) of the Delaware General Corporation Law, as in effect on the date
hereof:
(A) "Beneficially Owns" has the meaning set forth in Rule
13d-3 under the Securities Exchange Act of 1934 as in effect on
January 1, 1994.
(B) "Board" means the Board of Directors of the Corporation.
(C) "Business Combination" shall have the meaning ascribed to
it in Section 203(c)(3) of the Delaware General Corporation Law; provided,
however, that for purposes hereof the term "interested stockholder"
appearing therein shall have the meaning ascribed to it in Article II(D)
hereof.
(D) "Interested Stockholder" means any Person (other than the
Corporation and any direct or indirect majority-owned subsidiary of the
Corporation) that (1) Beneficially Owns 5% or more of the outstanding
Voting Stock, or (2) is an Affiliate or Associate of the Corporation and
Beneficially Owned 5% or more of the outstanding Voting Stock at any time
within the three-year period immediately prior to the date on which it is
sought to be determined whether such Person is an Interested Stockholder,
or (3) is an Affiliate or Associate of a Person described in (1) or (2)
preceding; provided, however, that the term "interested Stockholder"
shall not include (i) any Person who (a) Beneficially Owned shares in
excess of the 5% limitation set forth herein as of the first date upon
which shares of Voting Stock of the Corporation are held of record or
beneficially by more than one hundred (100) stockholders
<PAGE> 2
and continued to Beneficially Own shares in excess of such 5% limitation
or would have Beneficially Owned such shares but for action by the
Corporation or (b) acquired such shares from a Person described in
(a) above by gift, inheritance or in a transaction in which no
consideration was exchanged; or (ii) any Person whose ownership of
shares in excess of the 5% limitation set forth herein is the result of
action taken solely by the Corporation, provided that such Person shall
be an Interested Stockholder if thereafter such Person acquires
additional shares of Voting Stock except as a result of further corporate
action not caused, directly or indirectly, by such Person. For the
purpose of determining whether a Person is an Interested Stockholder,
(1) the Voting Stock deemed to be outstanding shall include stock deemed
to be owned by the Person through application of Section 203(c)(8) of the
Delaware General Corporation Law, except that the Voting Stock deemed to
be outstanding shall not include any other unissued stock of the
Corporation which may be issuable pursuant to any agreement, arrangement
or understanding, or upon exercise of conversion rights, warrants or
options, or otherwise, and (2) a Person engaged in business as an
underwriter of securities shall not be deemed to own any Voting Stock
acquired through such Person's participation in good faith in a firm
commitment underwriting until the expiration of 40 days after the date
of such acquisition.
(E) "Voting Stock" means stock of the Corporation of any class
or series entitled to vote generally in the election of directors of the
Corporation, and each reference herein to a percentage or portion of
shares of Voting Stock shall refer to such percentage or portion of the
votes entitled to be cast by the holders of such shares.
ARTICLE III: Registered Office
The address of the registered office of the Corporation in the State
of Delaware is Corporation Service Company, 1013 Centre Road, City of
Wilmington, County of New Castle and the name of its registered agent at
that address is Corporation Service Company.
ARTICLE IV: Purpose
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Delaware General
Corporation Law.
2
<PAGE> 3
ARTICLE V: Authorized Capital Stock
SECTION 1. Number of Authorized Shares. The Corporation shall be
authorized to issue two classes of shares of stock to be designated,
respectively, "Common Stock" and "Preferred Stock"; the total number of shares
of all classes of stock that the Corporation shall have authority to issue is
Fifty-Five Million (55,000,000) shares, consisting of Fifty Million
(50,000,000) shares of Common Stock par value $.01 per share, and Five Million
(5,000,000) shares of Preferred Stock par value $.01 per share.
SECTION 2. Preferred Stock. Shares of Preferred Stock may be issued
from time to time in one or more series. Shares of Preferred Stock that are
redeemed, purchased or otherwise acquired by the Corporation may be reissued
except as otherwise provided by law. The Board is hereby authorized to fix or
alter the designations, powers and preferences, and relative, participating,
optional or other rights, if any, and qualifications, limitations, dividend
rights (and whether dividends are cumulative), conversion rights, if any,
voting rights (including the number of votes, if any, per share, as well as the
number of members, if any, of the Board or the percentage of members, if any,
of the Board each class or series of Preferred Stock may be entitled to elect),
rights and terms of redemption (including sinking fund provisions, if any),
redemption price and liquidation preferences or any wholly unissued series of
Preferred Stock, and the number of shares constituting any such series and the
designation thereof, and to increase or decrease the number of shares of any
such series subsequent to the issuance of shares of such series, but not below
the number of shares of such series then outstanding. Notwithstanding the
foregoing, the Board shall have no power to alter the rights of any shares of
Preferred Stock than outstanding.
SECTION 3. Distributions Upon Liquidation. In the event of any
dissolution, liquidation or winding up of the affairs of the Corporation,
whether voluntary or involuntary, after payment of provision for payment of the
debts and other liabilities of the Corporation, the holders of each series of
Preferred Stock shall be entitled to receive, out of the net assets of the
Corporation, an amount for each share of such series of Preferred Stock equal to
the amount fixed and determined by the Board in the resolution or resolutions
creating such series and providing for the issuance of such shares, and no
more, before any of the assets of the Corporation shall be divided among and
paid to the holders of shares of Common Stock. If, upon such dissolution,
liquidation or winding up, the assets of the Corporation distributable as
aforesaid among the holders of Preferred
3
<PAGE> 4
Stock of all series shall be insufficient to permit full payment to them of
said preferential amounts, then such assets shall be distributed ratably among
such holders of Preferred Stock in proportion to the respective total amounts
which they shall be entitled to receive as provided in this Section.
ARTICLE VI: Annual Meetings of Stockholders
The annual meeting of stockholders shall be held at such time, on such
date and at such place (within or without the State of Delaware) as provided
in the Bylaws of the Corporation. Subject to any requirement of applicable law,
the books of the Corporation may be kept outside the State of Delaware at such
place or places as may be designated from time to time by the Board or in the
Bylaws of the Corporation. Elections of directors need not be by written ballot
unless the Bylaws of the Corporation shall so provide.
ARTICLE VII: Call of Special Meetings of Stockholders
Special meetings of stockholders of the Corporation for any purpose or
purposes may be called at any time by a majority of the members of the Board of
Directors or by a committee of the Board of Directors that has been duly
designated by the Board of Directors and whose power and authority, as provided
in a resolution adopted by the Board of Directors or in the Bylaws of the
Corporation, includes the power to call such meetings, but such special
meetings of stockholders of the Corporation may not be called by any other
Person or Persons or in any other manner; provided, however, that if and to the
extent that any special meeting of stockholders may be called by any other
Person or Persons specified in any certificate of designations filed under
Section 151(g) of the Delaware General Corporation Law (or its successor
statute as in effect from time to time), then such special meeting may also be
called by the Person or Persons, in the manner, at the times and for the
purposes so specified.
ARTICLE VIII: Number of Directors
SECTION 1. Number of Directors. The number of directors that shall
constitute the whole Board shall be as specified in the Bylaws of the
Corporation, as the same may be amended from time to time. Notwithstanding the
foregoing, during any period in which the holders of any one or more series of
Preferred Stock, voting as a class, shall be entitled to elect a specific
number of directors by reason of dividend arrearages or other contingencies
giving them the right to do so, then and during such time as such right
continues, (A) the then otherwise authorized number of directors shall be
increased by such specified number of
4
<PAGE> 5
directors and the holders of shares of such series of Preferred Stock, voting
as a class, shall be entitled to elect such specified number of directors in
accordance with the procedure set forth in the resolution or resolutions of the
Board creating such series and providing for the issuance of such shares and
(B) each such additional director shall serve until his or her successor shall
be elected and shall qualify, or until his or her right to hold such office
terminates pursuant to the resolution or resolutions of the Board creating such
series of Preferred Stock and providing for the issuance of shares of such
series, whichever occurs earlier. Whenever the holders of shares of such series
of Preferred Stock are divested of such right to elect directors pursuant to
the resolution or resolutions of the Board creating such series and providing
for the issuance of such shares, the terms of office of all directors elected
by the holders of such series of Preferred Stock pursuant to such rights, or
elected to fill any vacancies resulting from the death, resignation or removal
of directors so elected by the holders of such series, shall forthwith
terminate and the authorized number of directors shall be reduced accordingly.
SECTION 2. Cumulative Voting. Except as otherwise provided in this
Certificate of Incorporation, all rights to vote and all voting power shall be
exclusively vested in the Common Stock of the Corporation, and the holders
thereof shall be entitled at all elections of directors to as many votes as
shall equal the number of votes that (except for this provision as to
cumulative voting) he or she would be entitled to cast for the election of
directors with respect to his or her shares of stock multiplied by the number
of directors to be elected, and such holder may cast all of such votes for a
single director or may distribute them among the number to be voted for, or for
any two or more of them as he or she may see fit, and to one vote for each
share upon all other matters.
ARTICLE IX: Stockholder Action by Written Consent
Any election of directors or other action by the stockholders of the
Corporation may be effected at an annual or special meeting of stockholders and
may not be effected by written consent without a meeting.
ARTICLE X: Election of Directors
SECTION 1. Classified Board. Except to the extent otherwise provided
in any certificate of designations filed under Section 151(g) of the Delaware
General Corporation Law (or its successor statute as in effect from time to
time), the Board of Directors shall be and is divided into three classes, Class
I, Class II and Class III. Such classes shall
5
<PAGE> 6
be as nearly equal in number of directors as reasonably possible. Each director
shall serve for a term ending on the third annual meeting following the annual
meeting at which such director was elected, provided, however, that the
directors first elected to Class I shall serve for a term ending on the annual
meeting date next following the end of calendar year 1994, the directors first
elected to Class II shall serve for a term ending on the second annual meeting
date next following the end of calendar year 1994, and the directors first
elected to Class III shall serve for a term ending on the third annual meeting
date next following the end of calendar year 1994. The foregoing
notwithstanding, each director shall serve until his successor shall have been
duly elected and qualified unless he shall resign, become disqualified or shall
otherwise be removed.
At each annual election, the directors chosen to succeed those terms
then expiring shall be of the same class of the directors they succeed unless,
by reason of any intervening changes in the authorized number of directors, the
designated board shall designate one or more directorships whose term then
expires as directorships of another class in order more nearly to achieve
equality of number of directors among the classes. If a director dies, resigns
or is removed, the director chosen to fill the vacant directorship shall be of
the same class as the director he succeeds, unless, by reason of any previous
changes in the authorized number of directors, the Board shall designate such
vacant directorship as a directorship of another class in order more nearly to
achieve equality in the number of directors among the classes.
Notwithstanding the rule that the three classes shall be as nearly
equal in number of directors as reasonably possible, in the event of any change
in the authorized number of directors, each director then continuing to serve
as such shall nevertheless continue as a director of the class of which he is a
member until the expiration of his current term or his prior death, resignation
or removal. If any newly created directorship may, consistently with the rule
that the three classes shall be as nearly equal in number of directors as
reasonably possible, be allocated to one of two or more classes, the Board
shall allocate it to that of the available classes whose term of office is due
to expire at the earliest date following such allocation.
Vacancies and newly created directorships resulting from any increase
in the authorized number of directors may, unless the Board of Directors
determines otherwise, only be filled by a majority of the directors then in
office, although less than a quorum, or by a sole remaining director; provided,
however, that if the holders of any class or classes of stock or series thereof
are entitled to elect one or more directors,
6
<PAGE> 7
vacancies and newly created directorships of such class or classes or series
may only be filled by a majority of the directors elected by such class or
classes or series thereof then in office, or by a sole remaining director so
elected.
SECTION 2. Stockholder Nominees. Nominations by stockholders of
persons for election to the Board shall be made only in accordance with the
procedures set forth in the Bylaws of the Corporation.
SECTION 3. Removal. Subject to the rights of the holders of any
series of Preferred Stock then outstanding, any director, or the entire Board,
may be removed from office only for cause at any time, and only by the
affirmative vote of the holders of a majority of the shares of Voting Stock
then outstanding.
ARTICLE XI: Business Combinations
SECTION 1. Vote Required for Certain Business Combinations. In
addition to any affirmative vote required by applicable law or any other
provision of this Certificate of Incorporation or specified in any agreement,
and in addition to any voting rights granted to or held by the holders of
Common Stock or Preferred Stock, the approval or authorization of any Business
Combination that has not been approved in advance by at least 66-2/3% of the
Directors shall require the affirmative vote of the holders of not less than
66-2/3% of the Voting Stock then outstanding.
SECTION 2. Express Election Not to be Governed by Section 203. The
Corporation hereby expressly elects not to be governed by the provisions of
Section 203 of the Delaware General Corporation Law; provided, however, that
nothing set forth herein shall affect the application of the definitions in
clause (c) thereof, to the extent provided in Article II hereof.
ARTICLE XII: Liability and Indemnification
To the fullest extent permitted by the Delaware General Corporation
Law, as the same exists or may hereafter be amended (the "Delaware Law"), a
director of the Corporation shall not be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
The Corporation shall indemnify, in the manner and to the fullest extent
permitted by the Delaware Law, any person (or the estate of any person) who is
or was a party to, or is threatened to be made a party to, any threatened,
pending or completed action, suit or proceeding, whether or not by or in the
right of the Corporation, and whether civil, criminal, administrative,
investigative or otherwise, by reason of the
7
<PAGE> 8
fact that such person is or was a director or officer of the Corporation, or is
or was serving at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise. The
Corporation may indemnify, in the manner and to the fullest extent permitted by
the Delaware Law, any person (or the estate of any person) who is or was a
party to, or is threatened to be made a party to, any threatened, pending or
completed action, suit or proceeding, whether or not by or in the right of the
Corporation, and whether civil, criminal, administrative, investigative or
otherwise, by reason of the fact that such person is or was an employee or
agent of the Corporation, or is or was serving at the request of the
Corporation as an employee or agent of another corporation, partnership, joint
venture, trust or other enterprise. The Corporation may, to the fullest extent
permitted by the Delaware Law, purchase and maintain insurance on behalf of any
such director, officer, employee or agent against any liability which may be
asserted against such person. To the fullest extent permitted by the Delaware
Law, the indemnification provided herein shall include expenses (including
Attorneys' fees), judgments, fines and amounts paid in settlement and, in the
manner provided by the Delaware Law, any such expenses may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding. The indemnification provided herein shall not be deemed to limit
the right of the Corporation to indemnify any other person for any such
expenses to the fullest extent permitted by the Delaware Law, nor shall it be
deemed exclusive of any other rights to which any person seeking
indemnification from the Corporation may be entitled under any agreement, vote
of stockholders or disinterested directors, or otherwise, both as to action in
such person's official capacity and as to action in another capacity while
holding such office.
No repeal or modification of the foregoing paragraph shall adversely
affect any right or protection of a director of the Corporation existing by
virtue of the foregoing paragraph at the time of such repeal or modification.
ARTICLE XIII: Amendment of Corporate Documents
SECTION 1. Certificate of Incorporation. In addition to any affirmative
vote required by applicable law or any other provision of this Certificate of
Incorporation or specified in any agreement, and in addition to any voting
rights granted to or held by the holders of Common Stock or Preferred Stock,
any alteration, amendment, repeal or rescission (any "Change") of any provision
of this Certificate of Incorporation must be approved by a majority of the
directors of the Corporation then in office and by the affirmative vote of the
holders of a majority of the Voting
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Stock then outstanding; provided, however, that if any such Change relates to
Articles II, VII, IX, X, XI and XIV hereof or this Article XIII, such Change
must also be approved by the affirmative vote of the holders of not less than
66-2/3% of the shares of Voting Stock then outstanding. Subject to the
foregoing, the Corporation reserves the right to alter, amend, repeal or
rescind any provision contained in this Certificate of Incorporation in any
manner now hereafter prescribed by law.
SECTION 2. Bylaws. The Board shall have the power to make, alter,
amend, repeal or rescind the Bylaws of the Corporation.
ARTICLE XIV: Appraisal Rights
To the maximum extent permissible under Section 262 of the Delaware
General Corporation Law, the stockholders of the Corporation shall be entitled
to the statutory appraisal rights provided therein, notwithstanding any
exception otherwise provided therein, with respect to any transaction described
in Article XI involving the Corporation that requires the affirmative vote of
the holders of not less than 66-2/3% of the Voting Stock then outstanding.
ARTICLE XV: Incorporator
The name and mailing address of the incorporator of the Corporation
is:
Jacqueline N. Casper
c/o Corporation Service Company
1013 Center Road
Wilmington, Delaware 19805
The undersigned, being the incorporator hereinbefore named, for the
purpose of forming a corporation to do business both within and without the
State of Delaware, and in pursuance of the Delaware General Corporation Law,
does make the file this Certificate.
/s/ JACQUELINE N. CASPER
------------------------------------
Jacqueline N. Casper
Incorporator
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EXHIBIT 4.2
CKE RESTAURANTS, INC.
A DELAWARE CORPORATION
BYLAWS
ARTICLE 1: OFFICES
SECTION 1.1 Registered Office. The registered office of CKE
Restaurants, Inc. (the "Corporation") shall be at Corporation Service Company,
1013 Centre Road, City of Wilmington, County of New Castle, State of Delaware,
and the name of the registered agent in charge thereof shall be Corporation
Service Company.
SECTION 1.2 Principal Office. The principal office for the
transaction of the business of the Corporation shall be at 1200 North Harbor
Boulevard, Anaheim, California 92801. The Board of Directors of the
Corporation (the "Board") is hereby granted full power and authority to change
said principal office from one location to another.
SECTION 1.3 Other Offices. The Corporation may also have an
office or offices at such other place or places, either within or without the
State of Delaware, as the Board may from time to time determine or as the
business of the Corporation may require.
ARTICLE II: MEETINGS OF STOCKHOLDERS
SECTION 2.1 Place of Meetings. All annual meetings of
stockholders and all other meetings of stockholders shall be held either at the
principal office of the Corporation or at any other place within or without the
State of Delaware that may be designated by the Board pursuant to authority
hereinafter granted to the Board.
SECTION 2.2 Annual Meetings. Annual meetings of stockholders of
the Corporation for the purpose of electing directors and for the transaction
of such other proper business as may come before such meetings may be held at
such time and place and on such date as the Board shall determine by
resolution.
SECTION 2.3 Special Meetings. Special meetings of stockholders of
the Corporation for any purpose or purposes may only be called in accordance
with the provisions of the Certificate of Incorporation.
<PAGE> 2
SECTION 2.4 Notice of Meetings. Except as otherwise required by
law, notice of each meeting of stockholders, whether annual or special, shall
be given not less than 10 days nor more than 60 days before the date of the
meeting to each stockholder of record entitled to vote at such meeting by
delivering a typewritten or printed notice thereof to such stockholder
personally, or by depositing such notice in the United States mail, in a
postage prepaid envelope, directed to such stockholder at such stockholder's
post office address furnished by such stockholder to the Secretary of the
Corporation for such purpose, or, if such stockholder shall not have furnished
an address to the Secretary for such purpose, then at such stockholder's post
office address last known to the Secretary, or by transmitting a notice thereof
to such stockholder at such address by telegraph, cable, wireless or fax.
Except as otherwise expressly required by law, no publication of any notice of
a meeting of stockholders shall be required. Every notice of a meeting of
stockholders shall state the place, date and hour of the meeting and, in the
case of a special meeting, shall also state the purpose for which the meeting
is called. Notice of any meeting of stockholders shall not be required to be
given to any stockholder to whom notice may be omitted pursuant to applicable
Delaware law or who shall have waived such notice, and such notice shall be
deemed waived by any stockholder who shall attend such meeting in person or by
proxy, except a stockholder who shall attend such meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or convened. Except as
otherwise expressly required by law, notice of any adjourned meeting of
stockholders need not be given if the time and place thereof are announced at
the meeting at which the adjournment is taken.
SECTION 2.5 Quorum. Except as otherwise required by law, the
holders of record of a majority in voting interest of the shares of stock of
the Corporation entitled to be voted thereat, present in person or by proxy,
shall constitute a quorum for the transaction of business at any meeting of
stockholders of the Corporation or any adjournment thereof. Subject to the
requirement of a larger percentage vote contained in the Certificate of
Incorporation, these Bylaws or by statute, the stockholders present at a duly
called or held meeting at which a quorum is present may continue to do business
until adjournment, notwithstanding any withdrawal of stockholders that may
leave less than a quorum remaining, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum. In the absence of a quorum at any meeting or any
adjournment thereof, a majority in voting interest of the stockholders present
in person or by proxy and entitled to vote thereat or, in the absence therefrom
of all the
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stockholders, any officer entitled to preside at, or to act as secretary of,
such meeting may adjourn such meeting from time to time. At any such
adjourned meeting at which a quorum is present, any business may be transacted
that might have been transacted at the meeting as originally called.
SECTION 2.6 Voting.
(A) Each stockholder shall, at each meeting of stockholders,
be entitled to vote in person or by proxy each share of the stock
of the Corporation that has voting rights on the matter in question
and that shall have been held by such stockholder and registered in
such stockholder's name on the books of the Corporation:
(i) on the date fixed pursuant to Section 6.5 of
these Bylaws as the record date for the determination of
stockholders entitled to notice of and to vote at such
meeting; or
(ii) if no such record date shall have been so
fixed, then (a) at the close of business on the day next
preceding the day upon which notice of the meeting shall be
given or (b) if notice of the meeting shall be waived, at the
close of business on the day next preceding the day upon which
the meeting shall be held.
(B) Shares of its own stock belonging to the Corporation
or to another corporation, if a majority of the shares entitled to
vote in the election of directors in such other corporation is held,
directly or indirectly, by the Corporation, shall neither be entitled
to vote nor be counted for quorum purposes. Persons holding stock of
the corporation in a fiduciary capacity shall be entitled to vote such
stock. Persons whose stock is pledged shall be entitled to vote,
unless in the transfer by the pledgor on the books of the Corporation
the pledgor shall have expressly empowered the pledgee to vote
thereon, in which case only the pledgee, or the pledgee's proxy, may
represent such stock and vote thereon. Stock having voting power
standing of record in the names of two or more persons, whether
fiduciaries, members of a partnership, joint tenants, tenants in
common, tenants by the entirety or otherwise, or with respect to which
two or more persons have the same fiduciary relationship, shall be
voted in accordance with the provisions of the Delaware General
Corporation Law.
(C) Any such voting rights may be exercised by the
stockholder entitled thereto in person or by such stockholder as proxy
appointed by an instrument in
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writing, subscribed by such stockholder or by such stockholder's
attorney thereunto authorized and delivered to the secretary of the
meeting; provided, however, that no proxy shall be voted or acted upon
after three years from its date unless said proxy shall provide for a
longer period. The attendance at any meeting of a stockholder who may
theretofore have given a proxy shall not have the effect of revoking
the same unless such stockholder shall in writing so notify the
secretary of the meeting prior to the voting of the proxy. At any
meeting of stockholders, all matters, except as otherwise provided in
the Certificate of Incorporation, in these Bylaws or by law, shall be
decided by the vote of a majority in voting interest of the
stockholders present in person or by proxy and entitled to vote
thereat and thereon, a quorum being present. The vote at any meeting
of stockholders on any question need not be by ballot, unless so
directed by the chairman of the meeting. On a vote by ballot, each
ballot shall be signed by the stockholder voting, or by such
stockholder's proxy, if there be such proxy, and it shall state the
number of shares voted.
SECTION 2.7 List of Stockholders. The Secretary of the
Corporation shall prepare and make, at least 10 days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of such
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least 10 days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
SECTION 2.8 Judges. If at any meeting of stockholders a vote by
written ballot shall be taken on any question, the chairman of such meeting may
appoint a judge or judges to act with respect to such vote. Each judge so
appointed shall first subscribe an oath faithfully to execute the duties of a
judge at such meeting with strict impartiality and according to the best of
such judge's ability. Such judges shall decide upon the qualification of the
voters and shall report the number of shares represented at the meeting and
entitled to vote on such question, shall conduct and accept the votes, and,
when the voting is completed, shall ascertain and report the number of shares
voted respectively
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for and against the question. Reports of judges shall be in writing and
subscribed and delivered by them to the Secretary of the Co rporation. The
judges need not be stockholders of the Corporation, and any officer of the
Corporation may be a judge on any question other than a vote for or against a
proposal in which such officer shall have a material interest.
SECTION 2.9 Advance Notice of Stockholder Proposals and Stockholder
Nominations.
(A) At any meeting of the stockholders, only such
business shall be conducted as shall have been brought before the
meeting (i) by or at the direction of the Board or (ii) by any
stockholder of the Corporation who complies with the notice procedures
set forth in this Section 2.9(A). For business to be properly brought
before any meeting of the stockholders by a stockholder, the
stockholder must have given notice thereof in writing to the Secretary
of the Corporation not less than 90 days in advance of such meeting
or, if later, the seventh day following the first public announcement
of the date of such meeting. A stockholder's notice to the Secretary
shall set forth as to each matter the stockholder proposes to bring
before the meeting (1) a brief description of the business desired to
be brought before the meeting and the reasons for conducting such
business at the meeting, (2) the name and address, as they appear on
the Corporation's books, of the stockholder proposing such business,
(3) the class and number of shares of the Corporation that are
beneficially owned by the stockholder, and (4) any material interest
of the stockholder in such business. In addition, the stockholder
making such proposal shall promptly provide any other information
reasonably requested by the Corporation. Notwithstanding anything in
these Bylaws to the contrary, no business shall be conducted at any
meeting of the stockholders except in accordance with the procedures
set forth in this Section 2.9. The Chairman of any such meeting shall
direct that any business not properly brought before the meeting shall
not be considered.
(B) Nominations for the election of directors may be made
by the Board or by any stockholder entitled to vote in the election of
directors; provided, however, that a stockholder may nominate a person
for election as a director at a meeting only if written notice of such
stockholder's intent to make such nomination has been given to the
Secretary of the Corporation not later than 90 days in advance of such
meeting or, if later, the seventh day following the first public
announcement of the date of such meeting. Each such notice shall set
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forth: (i) the name and address of the stockholder who intends to make
the nomination and of the person or persons to be nominated; (ii) a
representation that the stockholder is a holder of record of stock of
the Corporation entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting and nominate the person or
persons specified in the notice; (iii) a description of all
arrangements or understandings between the stockholder and each
nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be
made by the stockholder; (iv) such other information regarding each
nominee proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
United States Securities and Exchange Commission had the nominee been
nominated, or intended to be nominated, by the Board; and (v) the
consent of each nominee to serve as a director of the Corporation if
so elected. In addition, the stockholder making such nomination shall
promptly provide any other information reasonably requested by the
Corporation. No person shall be eligible for election as a director
of the Corporation unless nominated in accordance with the procedures
set forth in this Section 2.9(B). The Chairman of any meeting of
stockholders shall direct that any nomination not made in accordance
with these procedures be disregarded.
ARTICLE III: BOARD OF DIRECTORS
SECTION 3.1 General Powers. Subject to any requirements in the
Certificate of Incorporation, these Bylaws, and of the Delaware General
Corporation Law as to action which must be authorized or approved by the
stockholders, any and all corporate powers shall be exercised by or under the
authority of, and the business and affairs of the Corporation shall be under
the direction of, the Board to the fullest extent permitted by law. Without
limiting the generality of the foregoing, it is hereby expressly declared that
the Board shall have the following powers, to wit:
(A) to select and remove all the officers, agents and
employees of the Corporation, prescribe such powers and duties for
them as may not be inconsistent with law, the Certificate of
Incorporation or these Bylaws, fix their compensation, and require
from them security for faithful service;
(B) to conduct, manage and control the affairs and
business of the Corporation, and to make such rules and regulations
therefor not inconsistent with law, the
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Certificate of Incorporation or these Bylaws (as the same may be
amended from time to time), as it may deem best;
(C) to change the location of the registered office of
the Corporation in Section 1.1 hereof; to change the principal office
and the principal office for the transaction of the business of the
Corporation from one location to another as provided in Section 1.2
hereof; to fix and locate from time to time one or more subsidiary
offices of the Corporation within or without the State of Delaware as
provided in Section 1.3 hereof; to designate any place within or
without the State of Delaware for the holding of any meeting or
meetings of stockholders; and to adopt, make and use a corporate seal,
and to prescribe the forms of certificates of stock, and to alter the
form of such seal and of such certificates from time to time, and in
its judgment as it may deem best, provided such seal and such
certificate shall at all times comply with the provisions of law;
(D) to authorize the issue of shares of stock of the
Corporation from time to time, upon such terms and for such
considerations as may be lawful;
(E) to borrow money and incur indebtedness for the
purposes of the Corporation, and to cause to be executed and delivered
therefor, in the corporate name, promissory notes, bonds, debentures,
deeds of trust and securities therefor; and
(F) by resolution adopted by a majority of the
authorized number of directors, to designate an executive and other
committees of the Board, each consisting of one or more directors, to
serve at the pleasure of the Board, and to prescribe the manner in
which proceedings of such committee or committees shall be conducted.
SECTION 3.2 Number and Term of Office. The authorized number of
directors of the Corporation shall be nine (9) until this Section 3.2 is
amended by a resolution duly adopted by the Board. Directors need not be
stockholders. With the exception of Carl N. Karcher, no person who has
attained the age of 70 shall be eligible for election to the Board. Each of
the directors of the Corporation shall hold office until such director's
successor shall have been duly elected and shall qualify or until such director
shall resign or shall have been removed in the manner provided in these Bylaws.
SECTION 3.3 Election of Directors. The directors shall be elected
by the stockholders of the Corporation, and at each election the persons
receiving the greater number of
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votes, up to the number of directors then to be elected, shall be the persons
then elected. The election of directors is subject to any provisions contained
in the Certificate of Incorporation relating thereto, including any provisions
for a classified Board.
SECTION 3.4 Resignations. Any director of the Corporation may
resign at any time by giving written notice to the Board or to the Secretary of
the Corporation. Any such resignation shall take effect at the time specified
therein, or, if the time be not specified, it shall take effect immediately
upon receipt; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 3.5 Vacancies. Except as otherwise provided in the
Certificate of Incorporation, any vacancy in the Board, whether because of
death, resignation, disqualification, an increase in the number of directors or
any other cause, may be filled by vote of the majority of the remaining
directors, even though less than a quorum, or by a sole remaining director;
provided, however, that whenever the holders of any class or series of shares
are entitled to elect one or more directors, any vacancy or newly created
directorship of such class or series may be filled by a majority of the
directors elected by such class or series then in office, or by a sole
remaining director so elected. Each director so chosen to fill a vacancy shall
hold office until such director's successor shall have been elected and shall
qualify or until such director shall resign or shall have been removed. No
reduction of the authorized number of directors shall have the effect of
removing any director prior to the expiration of such director's term of
office.
SECTION 3.6 Place of Meeting. The Board or any committee thereof
may hold any of its meetings at such place or places within or without the
State of Delaware as the Board or such committee may from time to time by
resolution designate or as shall be designated by the person or persons calling
the meeting or in the notice or a waiver of notice of any such meeting.
Directors may participate in any regular or special meeting of the Board or any
committee thereof by means of conference telephone or similar communications
equipment pursuant to which all persons participating in the meeting of the
Board or such committee can hear each other, and such participation shall
constitute presence in person at such meeting.
SECTION 3.7 Regular Meetings. Regular meetings of the Board may
be held at such times as the Board shall from time to time by resolution
determine. If any day fixed for a regular meeting shall be a legal holiday at
the place where
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the meeting is to be held, then the meeting shall be held at the same hour and
place on the next succeeding business day not a legal holiday. Except as
provided by law, notice of regular meetings need not be given.
SECTION 3.8 Special Meetings. Special meetings of the Board for
any purpose or purposes shall be called at any time by the Chairman of the
Board or, if the Chairman of the Board is absent or unable or refuses to act by
the Chief Executive Officer or the President. Except as otherwise provided by
law or by these Bylaws, written notice of the time and place of special
meetings shall be delivered personally or by facsimile transmission to each
director, or sent to each director by mail or by other form of written
communication, charges prepaid, addressed to such director at such director's
address, or in the case of facsimile transmission at the facsimile number, as
it is shown upon the records of the Corporation, or, if it is not so shown on
such records and is not readily ascertainable, at the place in which the
meetings of the directors are regularly held. In case such notice is mailed or
telegraphed, it shall be deposited in the United States mail or delivered to
the telegraph company in the County in which the principal office for the
transaction of the business of the Corporation is located at least 48 hours
prior to the time of the holding of the meeting. In case such notice is
delivered personally or by facsimile transmission as above provided, it shall
be delivered at least 24 hours prior to the time of the holding of the meeting.
Such mailing, telegraphing, delivery or facsimile transmission as above
provided shall be due, legal and personal notice to such director. Except
where otherwise required by law or by these Bylaws, notice of the purpose of a
special meeting need not be given. Notice of any meeting of the Board shall
not be required to be given to any director who is present at such meeting,
except a director who shall attend such meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
SECTION 3.9 Quorum and Manner of Acting. Except as otherwise
provided in these Bylaws, the Certificate of Incorporation or by applicable
law, the presence of a majority of the authorized number of directors shall be
required to constitute a quorum for the transaction of business at any meeting
of the Board, and all matters shall be decided at any such meeting, a quorum
being present, by the affirmative vote of a majority of the directors present.
A meeting at which a quorum is initially present may continue to transact
business notwithstanding the withdrawal of directors, provided any action taken
is approved by at least a majority of the required quorum for such meeting. In
the absence of a quorum, a majority of directors present at any meeting may
adjourn the
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same from time to time until a quorum shall be present. Notice of any
adjourned meeting need not be given. The directors shall act only as a Board,
and the individual directors shall have no power as such.
SECTION 3.10 Action by Consent. Any action required or permitted
to be taken at any meeting of the Board or of any committee thereof may be
taken without a meeting if consent in writing is given thereto by all members
of the Board or of such committee, as the case may be, and such consent is
filed with the minutes of proceedings of the Board or of such committee.
SECTION 3.11 Compensation. Directors who are not employees of the
Corporation or any of its subsidiaries may receive an annual fee for their
services as directors in an amount fixed by resolution of the Board, and, in
addition, a fixed fee, with or without expenses of attendance, may be allowed
by resolution of the Board for attendance at each meeting, including for
attendance at each meeting of a committee of the Board. Nothing herein
contained shall be construed to preclude any director from serving the
Corporation in any other capacity as an officer, agent, employee, or otherwise,
and receiving compensation therefor.
SECTION 3.12 Committees. By resolution adopted by a majority of
the authorized number of directors, the Board may designate an audit committee
and a compensation committee and such other committees as it shall determine.
Each committee shall consist of two or more of the members of the Board and
shall serve at the pleasure of the Board. Each such committee shall be
governed by a charter adopted by a majority of the authorized number of
directors. To the extent provided in any such charter and subject to any
restrictions or limitations on the delegation of power and authority imposed by
applicable law, any such committee shall have and may exercise all the powers
and authority of the Board in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it. Any such committee shall keep written minutes of
its meetings and report the same to the Board at the next regular meeting of
the Board. Unless the Board or these Bylaws shall otherwise prescribe the
manner of proceedings of any such committee, meetings of such committee may be
regularly scheduled in advance and may be called at any time by the chairman of
the committee or by any two members thereof; otherwise, the provisions of these
Bylaws with respect to notice and conduct of meetings of the Board shall govern
committees of the Board and actions by such committees.
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ARTICLE IV: OFFICERS
SECTION 4.1 Officers. The officers of the Corporation
shall be a Chief Executive Officer, a President, one or more Vice Presidents
(the number thereof and their respective titles to be determined by the Board),
a Secretary, and such other officers as may be appointed at the discretion of
the Board in accordance with the provisions of Section 4.3 hereof. The Board
may appoint a Chairman of the Board and, if the Board so designates, the
Chairman of the Board may be an officer of the Corporation. Any number of
offices may be held by the same person.
SECTION 4.2 Election. The officers of the Corporation, except such
officers as may be appointed or elected in accordance with the provisions of
Sections 4.3 or 4.5 hereof, shall be chosen annually by the Board at the first
meeting thereof held after the annual meeting of stockholders, and each officer
shall hold office until such officer shall resign or shall be removed or
otherwise disqualified to serve, or until such officer's successor shall be
elected and qualified.
SECTION 4.3 Other Officers. In addition to the officers
chosen annually by the Board at its first meeting, the Board also may appoint
or elect such other officers as the business of the Corporation may require,
each of whom shall have such authority and perform such duties as are provided
in these Bylaws or as the Board may from time to time specify and each of whom
shall hold office until such officer shall resign or shall be removed or
otherwise disqualified to serve, or until such officer's successor shall be
elected and qualified.
SECTION 4.4 Removal and Resignation. Any officer may be
removed, either with or without cause, by resolution of the Board passed by a
majority of the directors at the time in office, at any regular or special
meeting of the Board, or, except in case of an officer chosen by the Board, by
any officer upon whom such power of removal may be conferred by the Board.
SECTION 4.5 Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in
the manner prescribed in these Bylaws for regular appointments to such office.
ARTICLE V: CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 5.1 Execution of Contracts. The Board, except as in these
Bylaws otherwise provided, may authorize any officer or officers, or agent or
agents, to enter into any
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contract or execute any instrument in the name of and on behalf of the
Corporation, and such authority may be general or confined to specific
instances; and unless so authorized by the Board or by these Bylaws, no
officer, agent or employee shall have any power or authority to bind the
Corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or in any amount.
SECTION 5.2 Checks, Drafts, Etc. All checks, drafts or other
orders for payment of money, notes or other evidence of indebtedness, issued in
the name of or payable to the Corporation, shall be signed or endorsed by such
person or persons and in such manner as, from time to time, shall be determined
by resolution of the Board. Each such officer, assistant, agent or attorney
shall give such bond, if any, as the Board may require.
SECTION 5.3 Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board may select,
or as may be selected by any officer or officers, assistant or assistants,
agent or agents, or attorney or attorneys of the Corporation to whom such power
shall have been delegated by the Board. For the purpose of deposit and for the
purpose of collection for the account of the Corporation, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President or the
Treasurer (or any other officer or officers, assistant or assistants, agent or
agents, or attorney or attorneys of the Corporation who shall from time to time
be determined by the Board) may endorse, assign and deliver checks, drafts and
other orders for the payment of money which are payable to the order of the
Corporation.
SECTION 5.4 General and Special Bank Accounts. The Board may from
time to time authorize the opening and keeping of general and special bank
accounts with such banks, trust companies or other depositories as the Board
may select or as may be selected by any officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of the Corporation to
whom such power shall have been delegated by the Board. The Board may make
such special rules and regulations with respect to such bank accounts, not
inconsistent with the provisions of these Bylaws, as it may deem expedient.
ARTICLE VI: SHARES AND THEIR TRANSFER
SECTION 6.1 Certificates for Stock. Every owner of stock of the
Corporation shall be entitled to have a certificate or certificates, to be in
such form as the Board shall prescribe, certifying the number and class or
series of
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shares of the stock of the Corporation owned by such owner. The certificates
representing shares of such stock shall be numbered in the order in which they
shall be issued and shall be signed in the name of the Corporation by the
Chairman of the Board, the Chief Executive Officer, the President or any Vice
President, and by the Secretary or the Treasurer. Any or all of the signatures
on the certificates may be a facsimile. In case any officer, transfer agent or
registrar who has signed, or whose facsimile signature has been placed upon,
any such certificate, shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, such certificate may nevertheless
be issued by the Corporation with the same effect as though the person who
signed such certificate, or whose facsimile signature shall have been placed
thereupon, were such officer, transfer agent or registrar at the date of issue.
A record shall be kept of the respective names of the persons, firms or
corporations owning the stock represented by such certificates, the number and
class or series of shares represented by such certificates, respectively, and
the respective dates thereof, and in case of cancellation, the respective dates
of cancellation. Every certificate surrendered to the Corporation for exchange
or transfer shall be canceled, and no new certificate or certificates shall be
issued in exchange for any existing certificate until such existing certificate
shall have been so canceled, except in cases provided for in Section 6.4
hereof.
SECTION 6.2 Transfers of Stock. Transfers of shares of stock of
the Corporation shall be made only on the books of the Corporation by the
registered holder thereof, or by such holder's attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary, or with a
transfer clerk or a transfer agent appointed as provided in Section 6.3 hereof,
and upon surrender of the certificate or certificates for such shares properly
endorsed and the payment of all taxes thereon. The person in whose name shares
of stock stand on the books of the Corporation shall be deemed the owner
thereof for all purposes as regards the Corporation. Whenever any transfer of
shares shall be made for collateral security, and not absolutely, such fact
shall be so expressed in the entry of transfer if, when the certificate or
certificates shall be presented to the Corporation for transfer, both the
transferor and the transferee request the Corporation to do so.
SECTION 6.3 Regulations. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with these Bylaws,
concerning the issue, transfer and registration of certificates for shares of
the stock of the Corporation. It may appoint, or authorize any officer or
officers to appoint, one or more transfer clerks or one or more transfer agents
and one or more registrars, and may
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require all certificates for stock to bear the signature or signatures of any
of them.
SECTION 6.4 Lost, Stolen, Destroyed, and Mutilated Certificates.
In any case of loss, theft, destruction, or mutilation of any certificate of
stock, another may be issued in its place upon proof of such loss, theft,
destruction, or mutilation and upon the giving of a bond of indemnity to the
Corporation in such form and in such sum as the Board may direct; provided,
however, that a new certificate may be issued without requiring any bond when,
in the judgment of the Board, it is proper so to do.
SECTION 6.5 Fixing Date for Determination of Stockholders of
Record. In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in respect of
any other change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board may fix, in advance, a record date, which shall
not be more than 60 nor less than 10 days before the date of such meeting, nor
more than 60 days prior to any other action. If in any case involving the
determination of stockholders for any purpose other than notice of or voting at
a meeting of stockholders the Board shall not fix such a record date, then the
record date for determining stockholders for such purpose shall be the close of
business on the day on which the Board shall adopt the resolution relating
thereto. A determination of stockholders entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of such meeting;
provided, however, that the Board may fix a new record date for the adjourned
meeting.
ARTICLE VII: INDEMNIFICATION
SECTION 7.1 Scope of Indemnification. The Corporation shall
indemnify, in the manner and to the fullest extent permitted by the Delaware
General Corporation Law, as the same exists or may hereinafter be amended (the
"Delaware Law"), and by the Certificate of Incorporation, any person (or the
estate of any person) who is or was a party, or is threatened to be made a
party to, any threatened, pending or completed action, suit or proceeding,
whether or not by or in the right of the Corporation, and whether civil,
criminal, administrative, investigative or otherwise, by reason of the fact
that such person is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise.
The indemnification provided herein shall not be deemed to limit
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the right of the Corporation to indemnify any other person to the fullest
extent permitted by the Delaware Law, nor shall it be deemed exclusive of any
other rights to which any person seeking indemnification from the Corporation
may be entitled under any agreement, vote of stockholders or disinterested
directors, or otherwise, both as to action in such person's official capacity
and as to action in another capacity while holding such office. The
Corporation may enter into indemnification agreements with any one or more of
its directors, officers, employees and agents upon resolution duly adopted by
the Board of Directors. Such agreements may indemnify such persons to the
fullest extent permissible under law.
ARTICLE VIII: MISCELLANEOUS
SECTION 8.1 Seal. The Board shall adopt a corporate seal, which
shall be in the form of a circle and shall bear the name of the Corporation and
words showing that the Corporation was incorporated in the State of Delaware.
SECTION 8.2 Waiver of Notices. Whenever notice is required to be
given by these Bylaws or the Certificate of Incorporation or by law, the person
entitled to said notice may waive such notice in writing, either before or
after the time stated therein, and such waiver shall be deemed equivalent to
notice.
SECTION 8.3 Amendments. Except as otherwise provided herein or in
the Certificate of Incorporation, these Bylaws or any of them may be altered,
amended, repealed or rescinded and new Bylaws may be adopted by the Board, or
by the stockholders at any annual or special meeting of stockholders provided
that notice of such proposed alteration, amendment, repeal, rescission or
adoption is given in the notice of such meeting.
SECTION 8.4 Representation of other Corporations. The Chairman of
the Board, the Chief Executive Officer, the President or the Secretary or any
Vice President of the Corporation is authorized to vote, represent and exercise
on behalf of the Corporation all rights incident to any and all shares of any
other corporation or corporations standing in the name of the Corporation. The
authority herein granted to said officers to vote or represent on behalf of the
Corporation any and all shares held by the Corporation in any other corporation
or corporations may be exercised either by such officers in person or by any
person authorized so to do by proxy or power of attorney duly executed by such
officers.
SECTION 8.5 Jurisdiction for Stockholder Suits. Any action brought
by any stockholder against the Corporation
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or against any officer, director, employee, agent or advisor of the
Corporation, including without limitation any such action brought on behalf of
the Corporation, shall be brought solely in a court of competent jurisdiction
located in the State of Delaware.
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EXHIBIT 5
(LETTERHEAD) August 31, 1994
CKE Restaurants, Inc.
1200 North Harbor Boulevard
P.O. Box 4349
Anaheim, California 92803-4349
Re: CKE Restaurants, Inc. -
Registration Statement for Offering of 1,750,000
Shares of Common Stock
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, of an aggregate of
1,750,000 shares of Common Stock under the CKE Restaurants, Inc. 1994 Stock
Incentive Plan (the "Plan"). We advise you that, in our opinion, when such
shares have been issued and sold pursuant to the applicable provisions of the
Plan in accordance with the Registration Statement, such shares will be validly
issued, fully paid and non-assessable shares of CKE Restaurants, Inc. Common
Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
McDERMOTT, WILL & EMERY
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
CKE Restaurants, Inc.
We consent to the use of our reports relating to Carl Karcher Enterprises, Inc.
(now known as CKE Restaurants, Inc.), dated March 21, 1994, incorporated herein
by reference.
KPMG PEAT MARWICK LLP
Orange County, California
August 30, 1994
<PAGE> 1
Exhibit 99
CKE RESTAURANTS, INC.
1994 STOCK INCENTIVE PLAN
Section 1. PURPOSE OF PLAN
The purpose of this 1994 Stock Incentive Plan ("Plan") of CKE
Restaurants, Inc., a Delaware corporation (the "Company"), is to enable the
Company to attract, retain and motivate its employees by providing for or
increasing the proprietary interests of such employees in the Company, and to
enable the Company to attract, retain and motivate its nonemployee directors
and further align their interest with those of the shareholders of the Company
by providing for or increasing the proprietary interest of such directors in
the Company.
Section 2. PERSONS ELIGIBLE UNDER PLAN
Any person, including any director of the Company, who is an employee
of the Company or any of its subsidiaries (an "Employee") shall be eligible
to be considered for the grant of Awards (as hereinafter defined) hereunder.
Any director of the Company who is not an Employee (a "Nonemployee Director")
shall automatically receive Nonemployee Director Options (as hereinafter
defined) pursuant to Section 4 hereof, but shall not otherwise participate in
this Plan.
Section 3. AWARDS
(a) The Committee (as hereinafter defined), on behalf of the Company,
is authorized under this Plan to enter into any type of arrangement with an
Employee that is not inconsistent with the provisions of this Plan and that, by
its terms, involves or might involve the issuance of (i) shares of common stock
of the Company ("Common Shares") or (ii) a Derivative Security (as such term is
defined in Rule 16a-1 promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as such Rule may be amended from time to time)
with an exercise or conversion privilege at a price related to the Common Shares
or with a value derived from the value of the Common Shares. The entering into
of any such arrangement is referred to herein as the "grant" of an "Award."
(b) Awards are not restricted to any specified form or structure and
may include, without limitation, sales or bonuses of stock, restricted stock,
stock options, reload stock options, stock purchase warrants, other rights to
acquire stock, securities convertible into or redeemable for stock, stock
appreciation rights, limited stock appreciation rights, phantom stock, dividend
equivalents, performance units or performance shares, and an Award may consist
of one such security or benefit, or two or more of them in tandem or in the
alternative.
EXHIBIT "A"
<PAGE> 2
(c) Awards may be issued, and Common Shares may be issued pursuant to
an Award, for any lawful consideration as determined by the Committee,
including, without limitation, services rendered by the recipient of such
Award.
(d) Subject to the provisions of this Plan, the Committee, in its sole
and absolute discretion, shall determine all of the terms and conditions of
each Award granted under this Plan, which terms and conditions may include,
among other things:
(i) a provision permitting the recipient of such Award,
including any recipient who is a director or officer of the Company, to
pay the purchase price of the Common Shares or other property issuable
pursuant to such Award, or such recipient's tax withholding obligation
with respect to such issuance, in whole or in part, by any one or more
of the following:
(A) the delivery of cash;
(B) the delivery of other property deemed acceptable by the
Committee;
(C) the delivery of previously owned shares of capital
stock of the Company (including "pyramiding") or other
property;
(D) a reduction in the amount of Common Shares or other
property otherwise issuable pursuant to such Award; or
(E) the delivery of a promissory note, the terms and
conditions of which shall be determined by the Committee;
(ii) a provision conditioning or accelerating the receipt of
benefits pursuant to such Award, either automatically or in the
discretion of the Committee, upon the occurrence of specified events,
including, without limitation, a change of control of the Company, an
acquisition of a specified percentage of the voting power of the
Company, the dissolution or liquidation of the Company, a sale of
substantially all of the property and assets of the Company or an event
of the type described in Section 8 hereof; or
(iii) a provision required in order for such Award to qualify
as an incentive stock option under Section 422 of the Internal Revenue
Code (an "Incentive Stock Option").
(e) Notwithstanding Section 3(b), in the event any Award is made while
this Plan is subject to Rule 16b-3 as in effect on April 30, 1991 and under
which Common Shares are or may in the future be issued for any type of
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<PAGE> 3
consideration other than as a bonus without the payment of any consideration,
the amount of such consideration shall be equal to (i) the amount (such as par
value) required to be received by the Company in order to assure compliance
with applicable state law, or (ii) an amount equal to or greater than 50% of
the fair market value of such shares on the date of grant of such Award.
Section 4. NONEMPLOYEE DIRECTOR OPTIONS
(a) Each year, on the first business day following the date of the
annual meeting of stockholders of the Company, or any adjournment thereof, at
which directors of the Company are elected (the "Date of Grant"), each
Nonemployee Director shall automatically be granted an option (a "Nonemployee
Director Option") to purchase the number of Common Shares as follows: each
nonemployee director shall receive an option to purchase 2,500 shares; each
nonemployee director member of the executive committee shall receive an option
to purchase an additional 5,000 shares; and the nonemployee chairman of the
Board of Directors shall receive an option to purchase an additional 20,000
shares.
(b) If, on any date upon which Nonemployee Director Options are to be
automatically granted pursuant to this Section 4, the number of Common Shares
remaining available for options under this Plan is insufficient for the grant to
each Nonemployee Director of a Nonemployee Director Option to purchase the
entire number of Common Shares specified in this Section 4, then a Nonemployee
Director Option to purchase a proportionate amount of such available number of
Common Shares (rounded to the nearest whole share) shall be granted to each
Nonemployee Director on such date.
(c) Each Nonemployee Director Option granted under this Plan shall
become exercisable for the first time to purchase 33-1/3% of the Common Shares
subject thereto (rounded to the nearest whole share) on each of the first,
second and third anniversaries of the Date of Grant of such Nonemployee
Director Option; provided, however, that such Nonemployee Director Option shall
become fully exercisable on the date upon which the optionee shall cease to be
a Nonemployee Director as a result of death or total disability.
(d) Each Nonemployee Director Option granted under this Plan shall
expire upon the first to occur of the following:
(i) The first anniversary of the date upon which the optionee
shall cease to be a Nonemployee Director as a result of death or total
disability;
(ii) The 90th day after the date upon which the optionee shall
cease to be a Nonemployee Director for any reason other than death or total
disability as defined in Section 22(e)(3) Internal Revenue Code;
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<PAGE> 4
(iii) The fifth anniversary of the Date of Grant of such
Nonemployee Director Option.
(e) Each Nonemployee Director Option shall have an exercise price
equal to the greater of (i) the aggregate Fair Market Value on the Date of
Grant of such option of the Common Shares subject thereto or (ii) the aggregate
par value of such Common Shares on such date.
(f) Payment of the exercise price of any Nonemployee Director Option
granted under this Plan shall be made in full in cash concurrently with the
exercise of such Nonemployee Director Option; provided, however, that, in
the discretion of the Board of Directors of the Company (the "Board"), the
payment of such exercise price may instead be made;
(i) in whole or in part, with Common Shares delivered
concurrently with such exercise (such shares to be valued on the
basis of the Fair Market Value of such shares on the date of such
exercise), provided that the Company is not then prohibited from
purchasing or acquiring Common Shares; and/or
(ii) in whole or in part, by the delivery, concurrently with such
exercise and in accordance with Section 220.3(e)(4) of Regulation T
promulgated under the Exchange Act, of a properly executed exercise
notice for such Nonemployee Director Option and irrevocable instructions
to a broker promptly to deliver to the Company a specified dollar amount
of the proceeds of a sale of or a loan secured by the Common Shares
issuable upon exercise of such Nonemployee Director Option.
(g) For purposes of this Section 4, the "Fair Market Value" of a
Common Share or other security on any date (the "Determination Date") shall be
equal to the closing price per Common Share or unit of such other security on
the business day immediately preceding the Determination Date, as reported in
The Wall Street Journal, Western Edition, or, if no closing price was so
reported for such immediately preceding business day, the closing price for the
next preceding business day for which a closing price was so reported, or, if
no closing price was so reported for any of the 30 business days immediately
preceding the Determination Date, the average of the high bid and low asked
prices per Common Share or unit of such other security on the business day
immediately preceding the Determination Date on the New York Stock Exchange,
or, if the Common Shares or such other security were not traded on the New York
Stock Exchange or quoted by the National Association of Securities Dealers,
Inc. Automated Quotation System or such other system then in use on such
immediately preceding business day, the average of the closing bid and asked
prices on such day as furnished by a professional market maker making a market
in the Common Shares or such other security selected by the Board.
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<PAGE> 5
(h) All outstanding Nonemployee Director Options theretofore granted
under this Plan shall become fully exercisable upon the first to occur of the
following:
(i) the date of shareholder approval of a reorganization,
merger or consolidation of the Company as a result of which the
outstanding securities of the class then subject to this Plan are
exchanged for or converted into cash, property and/or securities not issued
by the Company;
(ii) the first date upon which the directors of the Company who
were nominated by the Board for election as directors shall cease to
constitute a majority of the authorized number of directors of the Company;
(iii) the dissolution or liquidation of the Company;
(iv) the sale of substantially all of the property and assets
of the Company; or
(v) the date of dissemination to the shareholders of the
Company of a proxy statement disclosing a change of control of the Company.
(i) Each Nonemployee Director Option shall be nontransferable by the
optionee other than by will or the laws of descent and distribution, and shall
be exercisable during the optionee's lifetime only by the optionee or the
optionee's guardian or legal representative.
(j) Nonemployee Director Options are not intended to qualify as
Incentive Stock Options.
Section 5. STOCK SUBJECT TO PLAN
(a) Subject to adjustment as provided in Section 8 hereof, the
aggregate number of Common Shares issued and issuable pursuant to all Incentive
Stock Options granted under this Plan shall not exceed 1,750,000. Such maximum
number does not include the number of Common Shares subject to the unexercised
portion of any Incentive Stock Option granted under this Plan that expires or
is terminated.
(b) The aggregate number of Common Shares subject to Awards granted
during any calendar year to any one Employee (including the number of shares
involved in Awards having a value derived from the value of Common Shares)
shall not exceed 200,000; provided, however, that the limitation set forth in
this Section 5(b) shall not apply if such provision is not required in order
for Awards to qualify as "performance based compensation" under Section 162(m)
of the Internal Revenue Code. Further, such aggregate number of shares shall be
subject to adjustment under
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<PAGE> 6
Section 8 only to the extent permitted by Section 162(m) of the Internal
Revenue Code.
(c) Subject to adjustment as provided in Section 8(b) hereof, at any
time, the aggregate number of Common Shares issued and issuable pursuant to all
Awards (including all Incentive Stock Options) granted under this Plan shall
not exceed 1,750,000.
(d) For purposes of Section 5(c) hereof, the aggregate number of
Common Shares issued and issuable pursuant to Awards granted under this Plan
shall at any time be deemed to be equal to the sum of the following:
(i) the number of Common Shares that were issued prior to such
time pursuant to Awards granted under this Plan, other than Common
Shares that were subsequently reacquired by the Company pursuant to the
terms and conditions of such Awards and with respect to which the
holder thereof received no benefits of ownership such as dividends;
plus
(ii) the number of Common Shares that were otherwise issuable
prior to such time pursuant to Awards granted under this Plan, but that
were withheld by the Company as payment of the purchase price of the
Common Shares issued pursuant to such Awards or as payment of the
recipient's tax withholding obligation with respect to such issuance;
plus
(iii) the maximum number of Common Shares that are or may be
issuable at or after such time pursuant to Awards granted under this
Plan prior to such time.
Section 6. DURATION OF PLAN
No Awards shall be made under this Plan after April 30, 1999. Although
Common Shares may be issued after April 30, 1999 pursuant to Awards made prior
to such date, no Common Shares shall be issued under this Plan after April 30,
2009.
Section 7. ADMINISTRATION OF PLAN
(a) This Plan shall be administered by a committee (the "Committee")
of the Board of Directors of the Company (the "Board") consisting of two or
more directors, each of whom: (i) is a "disinterested person" (as such term
is defined in Rule 16b-3 promulgated under the Exchange Act, as such Rule may
be amended from time to time), and (ii) is an "outside director" (as such
term is defined under Section 162(m) of the Internal Revenue Code).
(b) Subject to the provisions of this Plan, the Committee shall be
authorized and empowered to do all things necessary or desirable in connection
with the administration of this Plan, including, without limitation, the
following:
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<PAGE> 7
(i) adopt, amend and rescind rules and regulations relating to this
Plan;
(ii) determine which persons are Employees and to which of such
Employees, if any, Awards shall be granted hereunder;
(iii) grant Awards to Employees and determine the terms and conditions
thereof, including the number of Common Shares issuable pursuant thereto;
(iv) determine the terms and conditions of the Nonemployee Director
Options that are automatically granted hereunder, other than the terms and
conditions specified in Section 4 hereof;
(v) determine whether, and the extent to which adjustments are
required pursuant to Section 8 hereof; and
(vi) interpret and construe this Plan and the terms and conditions of
any Award granted hereunder.
Section 8. ADJUSTMENTS
(a) If the outstanding securities of the class then subject to this
Plan are increased, decreased or exchanged for or converted into a different
number or kind of shares or securities as a result of a reorganization, merger,
consolidation, recapitalization, reclassification, stock dividend, stock split,
reverse stock split, spin-off or the like, then, unless the terms of such
transaction shall provide otherwise, the Committee shall make appropriate and
proportionate adjustments in (a) the number and type of shares or other
securities that may be acquired pursuant to Incentive Stock Options and the
exercise price thereof theretofore granted under this Plan, and (b) the maximum
number and type of shares or other securities that may be issued pursuant to
Incentive Stock Options thereafter granted under this Plan.
(b) If the outstanding securities of the class then subject to this
Plan are increased, decreased, or exchanged for or converted into cash, property
or a different number or kind of shares or securities, or if cash, property or
shares or securities are distributed in respect of such outstanding securities,
in either case as a result of a reorganization, merger, consolidation,
recapitalization, restructuring, reclassification, dividend (other than a
regular, quarterly cash dividend) or other distribution, stock split, reverse
stock split, spin-off or the like, or if substantially all of the property and
assets of the Company are sold, then, unless the terms of such transaction
shall provide otherwise, the Committee shall make appropriate and proportionate
adjustments in (a) the number and type of shares of other securities or cash or
other property that may be acquired pursuant to Awards other than
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Incentive Stock Options theretofore granted under this Plan, and (b) the
maximum number and type of shares or other securities that may be issued
pursuant to such Awards thereafter granted under this Plan.
Section 9. AMENDMENT AND TERMINATION OF PLAN
The Board may amend or terminate this Plan at any time and in any
manner; provided, however, that no such amendment or termination shall deprive
the recipient of any Award theretofore granted under this Plan, without the
consent of such recipient, of any of his or her rights thereunder or with
respect thereto; provided, further, that if an amendment to the Plan would (a)
increase the maximum number of Common Shares that may be issued pursuant to all
Incentive Stock Options granted under this Plan, and other Awards granted
during any calendar year to any one Employee, (b) change the class of persons
eligible to receive Awards under the Plan, (c) otherwise materially increase
the benefits accruing to participants who are subject to Section 16 of the
Exchange Act in a manner not specifically contemplated herein or (d) affect the
Plan's compliance with Rule 16b-3 under the Exchange Act or applicable
provisions of the Internal Revenue Code, the amendment shall be approved by the
Company's stockholders to the extent required to comply with Rule 16b-3 under
the Exchange Act, Section 422 and 162(m) of the Internal Revenue Code, or other
applicable provisions of or rules under the Internal Revenue Code.
Section 10. EFFECTIVE DATE OF PLAN
(a) This Plan shall be effective as of the date upon which it was
approved by the Board; provided, however, that no Common Shares may be issued
under this Plan until it has been approved, directly or indirectly, by the
affirmative votes of the holders of a majority of the securities of the Company
present, or represented, and entitled to vote at a meeting duly held in
accordance with the laws of the State of Delaware.
(b) Notwithstanding the foregoing, Section 4 of this Plan shall not be
effective until the close of business on the date of the 1994 Annual Meeting of
the Stockholders of the Company, or any adjournment thereof, at which directors
of the Company are elected.
8
