<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 3, 1996
REGISTRATION NO. 333-05305
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CKE RESTAURANTS, INC.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C> <C>
DELAWARE 5812 33-0602639
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification Number)
</TABLE>
1200 NORTH HARBOR BOULEVARD
ANAHEIM, CALIFORNIA 92801
(714) 774-5796
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
JOSEPH N. STEIN
1200 NORTH HARBOR BOULEVARD
ANAHEIM, CALIFORNIA 92801
(714) 774-5796
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
COPIES TO:
<TABLE>
<S> <C>
C. CRAIG CARLSON, ESQ. RICHARD G. BROWN, ESQ.
J. MICHAEL VAUGHN, ESQ. BRIAN G. LLOYD, ESQ.
STRADLING, YOCCA, CARLSON & RAUTH KIMBALL, PARR, WADDOUPS, BROWN & GEE
660 NEWPORT CENTER DRIVE, SUITE 1600 185 SOUTH STATE STREET, SUITE 1300
NEWPORT BEACH, CALIFORNIA 92660 SALT LAKE CITY, UTAH 84147
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As promptly as practicable after this Registration Statement becomes
effective and the effective time of the proposed merger of a wholly-owned
subsidiary of Registrant with and into Summit Family Restaurants Inc.
("Summit"), as described in the Agreement and Plan of Merger and Reorganization,
dated as of November 30, 1995, as amended, attached as Appendix A to the Proxy
Statement/Prospectus forming a part of this Registration Statement.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
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<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the DGCL provides that a corporation may indemnify any
person made a party to an action (other than an action by or in the right of the
corporation) by reason of the fact that he or she was a director, officer,
employee or agent of the corporation or was serving at the request of the
corporation against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action if he or she acted in good faith and in a manner he
or she reasonably believed to be in, or not opposed to, the best interests of
the corporation and, with respect to any criminal action (other than an action
by or in the right of the corporation), has no reasonable cause to believe his
or her conduct was unlawful.
Article XII of the Registrant's Certificate of Incorporation limits, to the
fullest extent permitted by the Delaware General Corporation Law, as the same
exists or may hereafter be amended (the "Delaware Law"), the liability of the
directors of the Registrant or its stockholders for monetary damages for breach
of their fiduciary duties as a director. Article XII also provides that the
Registrant 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 Registrant,
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
Registrant, or is or was serving at the request of the Registrant as a director
or officer of another corporation, partnership, joint venture, trust or other
enterprise. Article XII further authorizes the Registrant to (a) 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 Registrant, 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 Registrant, or is
or was serving at the request of the Registrant as an employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, and
(b) to the fullest extent permitted by the Delaware Law, the indemnification
provided in Article XII 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 Registrant in advance of
the final disposition of such action, suit or proceeding. The indemnification
provided in Article XII shall not be deemed to limit the right of the Registrant
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 Registrant 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 Registrant's Bylaws provide that the Registrant may enter into
indemnification agreements with any one or more if its directors, officers,
employees and agents upon resolution duly adopted by the Board of Directors, and
that such agreements may indemnify such persons to the fullest extent
permissible under law.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Securities Act") may be permitted to directors,
officers or persons controlling the Registrant pursuant to the foregoing
provisions, 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 Securities Act and is, therefore, unenforceable.
II-1
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ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(A) EXHIBITS:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
*2.1 -- Agreement and Plan of Merger and Reorganization, dated as of November 30,
1995, by and between CKE Restaurants, Inc. and Summit Family Restaurants
Inc., together with First Amendment to Agreement and Plan of Merger and
Reorganization, dated as of January 24, 1996, Second Amendment to Agreement
and Plan of Merger and Reorganization, dated as of April 2, 1996, and Third
Amendment to Agreement and Plan of Merger and Reorganization, dated as of
June 5, 1996 (included as Appendix A to the Proxy Statement/Prospectus). The
Schedules to the Merger Agreement are omitted. The Registrant agrees to
furnish supplementally any omitted schedule to the Securities and Exchange
Commission upon request.
*3.1 -- Certificate of Incorporation of the Registrant, incorporated herein by
reference to Exhibit 3.1 to the Registrant's Form S-4 Registration Statement
(Registration No. 33-52523).
3.2 -- Bylaws of the Registrant, as amended to date and currently in effect.
*5.1 -- Opinion of Stradling, Yocca, Carlson & Rauth regarding legality.
*8.1 -- Opinion of Latham & Watkins regarding federal income tax matters.
*21.1 -- Subsidiaries of the Registrant.
*23.1 -- Consent of KPMG Peat Marwick LLP (with respect to the consolidated financial
statements of the Registrant and its subsidiaries).
*23.2 -- Consent of KPMG Peat Marwick LLP (with respect to the consolidated financial
statements of Summit Family Restaurants Inc. and its subsidiaries).
*23.3 -- Consent of Stradling, Yocca, Carlson & Rauth (included in Exhibit 5.1).
*23.4 -- Consent of Latham & Watkins (included in Exhibit 8.1).
*23.5 -- Consent of Piper Jaffray Inc. (included in Appendix B to the Proxy
Statement/Prospectus).
23.6 -- Consent of Houlihan, Lokey, Howard & Zukin, Inc.
*24.1 -- Power of Attorney (included on Page II-4).
*99.1 -- Forms of Proxy Card for use in connection with the Special Meeting.
</TABLE>
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* Previously filed.
(B) FINANCIAL STATEMENT SCHEDULES:
All schedules are omitted because of the absence of the condition under
which they are required or because the information is included in the
Consolidated Financial Statements or Notes thereto.
(C) Fairness Opinion of Piper Jaffray Inc. (included as Appendix B to the
Proxy Statement/Prospectus) and Fairness Opinion of Houlihan, Lokey, Howard &
Zukin, Inc. (included as Appendix A to the Proxy Statement/Prospectus Supplement
dated July 2, 1996).
ITEM 22. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act; (ii) to reflect
in the prospectus any facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement; (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.
II-2
<PAGE> 4
(2) that, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof;
(3) to remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering;
(4) that, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof;
(5) that prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this Registration
Statement, by any person or party who is deemed to be an underwriter within the
meaning of Rule 145(c), such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other items of the applicable form;
(6) that every prospectus (i) that is filed pursuant to paragraph (5)
immediately preceding, or (ii) that purports to meet the requirements of Section
10(a)(3) of the Securities Act and is used in connection with an offering of
securities subject to Rule 415, will be filed as a part of an amendment to the
Registration Statement and will not be used until such amendment is effective,
and that, for purposes of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof;
(7) to respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of Form S-4,
within one business day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the effective date of the
Registration Statement through the date of responding to the request; and
(8) to supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein, that
was not the subject of and included in the Registration Statement when it became
effective.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to provisions described in Item 20 above, 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
Securities Act and is therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act, as amended, the
registrant has duly caused this Post-Effective Amendment No. 1 to Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Anaheim, State of California on July 2, 1996.
CKE RESTAURANTS, INC.
By: /s/ ROBERT A. WILSON
--------------------------------------
Robert A. Wilson,
Vice President and
General Counsel
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Post-Effective Amendment No. 1 to Registration Statement has been signed by
the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<C> <S> <C>
* Chairman of the Board and July 2, 1996
- ---------------------------------------- Chief Executive Officer
William P. Foley II (Principal Executive Officer)
* Chief Financial Officer July 2, 1996
- ---------------------------------------- (Principal Financial Officer)
Joseph N. Stein
* Controller July 2, 1996
- ---------------------------------------- (Principal Accounting Officer)
John C. Fuller
* Director July 2, 1996
- ----------------------------------------
Peter Churm
* Director July 2, 1996
- ----------------------------------------
Carl L. Karcher
* Director July 2, 1996
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Carl N. Karcher
* Vice Chairman of the Board July 2, 1996
- ----------------------------------------
Daniel D. (Ron) Lane
* Director July 2, 1996
- ----------------------------------------
Frank P. Willey
* Director July 2, 1996
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W. Howard Lester
*By: /s/ ROBERT A. WILSON
- ----------------------------------------
Robert A. Wilson
Attorney-in-fact
</TABLE>
II-4
<PAGE> 6
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGES
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<S> <C> <C> <C>
*2.1 -- Agreement and Plan of Merger and Reorganization, dated as of
November 30, 1995, by and between CKE Restaurants, Inc. and
Summit Family Restaurants Inc., together with First Amendment to
Agreement and Plan of Merger and Reorganization, dated as of
January 24, 1996, Second Amendment to Agreement and Plan of
Merger and Reorganization, dated as of April 2, 1996, and Third
Amendment to Agreement and Plan of Merger and Reorganization,
dated as of June 5, 1996 (included as Appendix A to the Proxy
Statement/Prospectus). The Schedules to the Merger Agreement are
omitted. The Registrant agrees to furnish supplementally any
omitted schedule to the Securities and Exchange Commission upon
request..........................................................
*3.1 -- Certificate of Incorporation of the Registrant, incorporated
herein by reference to Exhibit 3.1 to the Registrant's Form S-4
Registration Statement (Registration No. 33-52523)...............
3.2 -- Bylaws of the Registrant, as amended to date and currently in
effect...........................................................
*5.1 -- Opinion of Stradling, Yocca, Carlson & Rauth regarding
legality.........................................................
*8.1 -- Opinion of Latham & Watkins regarding federal income tax
matters..........................................................
*21.1 -- Subsidiaries of the Registrant...................................
*23.1 -- Consent of KPMG Peat Marwick LLP (with respect to the
consolidated financial statements of the Registrant and its
subsidiaries)....................................................
*23.2 -- Consent of KPMG Peat Marwick LLP (with respect to the
consolidated financial statements of Summit Family Restaurants
Inc. and its subsidiaries).......................................
*23.3 -- Consent of Stradling, Yocca, Carlson & Rauth (included in Exhibit
5.1).............................................................
*23.4 -- Consent of Latham & Watkins (included in Exhibit 8.1)............
*23.5 -- Consent of Piper Jaffray Inc. (included in Appendix B to the
Proxy Statement/Prospectus)......................................
23.6 -- Consent of Houlihan, Lokey, Howard & Zukin, Inc..................
*24.1 -- Power of Attorney (included on Page II-4)........................
*99.1 -- Forms of Proxy Card for use in connection with the Special
Meeting..........................................................
</TABLE>
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* Previously filed.
<PAGE> 1
EXHIBIT 3.2
CKE RESTAURANTS, INC.
A DELAWARE CORPORATION
BYLAWS
(as Amended through May 5, 1996)
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
2
<PAGE> 3
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
3
<PAGE> 4
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
4
<PAGE> 5
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
5
<PAGE> 6
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 Election of Directors. 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 75 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 23.6
[HOULIHAN LOKEY HOWARD & ZUKIN LETTERHEAD]
July 2, 1996
Consent of Houlihan Lokey Howard & Zukin
We consent to the use in the Registration Statement of CKE Restaurants, Inc.
and in the Proxy Statement of Summit Family Restaurants Inc. of our opinion to
the Board of Directors of Summit Family Restaurants Inc., dated June 26, 1996,
and to the references to us in the Supplement, dated July 2, 1996, to the
Summit Proxy Statement and to the CKE Restaurant, Inc. Prospectus.
Houlihan Lokey Howard & Zukin, Inc.
Los Angeles, California
By /s/ WILLIAM EPSTEIN
---------------------------
William Epstein
Sr. Vice President
