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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 14, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON. D.C. 20549
------------------------
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)
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DELAWARE 5812 33-0602639
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
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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)
------------------------
ANDREW F. PUZDER
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
CKE RESTAURANTS, INC.
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:
C. CRAIG CARLSON, ESQ.
J. MICHAEL VAUGHN, ESQ.
STRADLING YOCCA CARLSON & RAUTH
660 NEWPORT CENTER DRIVE
NEWPORT BEACH, CALIFORNIA 92660
(714) 725-4000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
From time to time after this Registration Statement becomes effective.
If the only 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. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS PROPOSED MAXIMUM PROPOSED MAXIMUM
OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED SHARE(1) PRICE(1) REGISTRATION FEE
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Common Stock, $.01 par value 4,500,000 shares $32.69 $147,105,000 $43,396
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(1) The offering price is estimated solely for the purpose of calculating the
registration fee in accordance with Rule 457(c), and is based upon the
average of the high and low sale prices reported on the New York Stock
Exchange on May 12, 1998, which average was $32.69 per share.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
PROSPECTUS SUBJECT TO COMPLETION
DATED MAY 14, 1998
CKE RESTAURANTS, INC.
4,500,000 SHARES
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
This Prospectus relates to 4,500,000 shares (the "Shares") of the Common
Stock, par value $.01 per share ("Common Stock"), of CKE Restaurants, Inc. (the
"Company") which may be offered and issued by the Company from time to time in
connection with the acquisition by the Company directly, or indirectly through
subsidiaries, of various businesses or assets, or interests therein. The Shares
may be issued in mergers or consolidations, in exchange for shares of capital
stock, partnership interests or other assets representing an interest, direct or
indirect, in other companies or other entities, or in exchange for tangible or
intangible assets, including, without limitation, assets constituting all or
substantially all of the assets and businesses of such entities. Shares may also
be reserved for issuance pursuant to, or offered, issued and sold upon exercise
or conversion of, warrants, options, convertible debt obligations, equity
securities, contingent rights or other similar instruments or rights issued by
the Company from time to time in connection with any such acquisition. In
certain instances, the Company may guaranty that some or all of the aggregate
net proceeds from the sale of Shares during a limited period following their
issuance will not be less than the valuation used for purposes of their
issuance, or a specific amount related to such valuation, and may make up any
shortfall (including any shortfall attributable to brokers' commissions and
selling expenses) by issuing additional Shares under this Prospectus or in cash.
It is expected that the terms of acquisitions involving the issuance of
Shares will be determined by direct negotiations with the owners or controlling
persons of the businesses or assets to be acquired, and that the Shares so
issued will be valued at prices based on or related to market prices for the
Common Stock on the New York Stock Exchange, Inc. (the "NYSE") at or about the
time the terms of an acquisition are agreed upon or at or about the time of
delivery of such Shares, or based on average market prices for periods ending at
or about such times. No underwriting discounts or commissions will be paid,
although brokers' or finders' fees may be paid from time to time with respect to
specific acquisitions; under some circumstances, the Company may issue Shares in
full or partial payment of such fees. Any person receiving any such fees may be
deemed to be an underwriter within the meaning of the United States Securities
Act of 1933, as amended (the "Securities Act").
With the consent of the Company, this Prospectus may also be used by
persons ("Selling Stockholders") who have received or will receive Shares in
connection with acquisitions and who may wish to sell such Shares under
circumstances requiring or making desirable its use. See "Resales of Shares."
The Shares will, prior to their issuance, be listed on the NYSE subject to
official notice of issuance. The Common Stock is traded under the symbol "CKR".
The last reported sale price of the Common Stock on the NYSE on May 12, 1998 was
$32.69 per share.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS.
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is May , 1998.
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FORWARD-LOOKING STATEMENTS
The information contained and incorporated by reference herein contains
forward-looking statements that involve a number of risks and uncertainties. A
number of factors could cause results to differ materially from those
anticipated by such forward-looking statements. These factors include, but are
not limited to, the competitive environment in the quick-service restaurant
industry in general and in the Company's specific market areas, changes in
prevailing interest rates and the availability of financing, inflation, changes
in costs of goods and services, economic conditions in general and in the
Company's specific market areas, and uncertainties related to the Company's
acquisitions of Hardee's and FEI (as each is defined herein). In addition, such
forward-looking statements are necessarily dependent upon assumptions, estimates
and data that may be incorrect or imprecise. Accordingly, any forward-looking
statements included or incorporated by reference herein do not purport to be
predictions of future events or circumstances and may not be realized.
Forward-looking statements can be identified by, among other things, the use of
forward-looking terminology such as "believes," "contemplates," "expects,"
"may," "will," "should," "would," "seeks," "pro forma," or "anticipates" or the
negative thereof or other variations thereon or comparable terminology, or by
discussions of strategies, plans or intentions. The accompanying information
contained and incorporated by reference in this Prospectus, including without
limitation the information set forth under the heading "Risk Factors",
identifies important factors that could cause such differences.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act"), as amended, and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the Commission's Regional Offices at 7 World Trade
Center, Suite 1300, New York, New York 10048 and Northwestern Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Information on
the operation of the public reference facilities can be obtained by calling the
Commission at 1-800-SEC-0330. Copies of these materials can be obtained from the
Commission at prescribed rates by writing to the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. The Commission
maintains an Internet Web site that contains certain reports, proxy statements
and other information regarding issuers like the Company who file electronically
with the Commission. The address of that site is http://www.sec.gov. The Common
Stock is listed on the NYSE. The reports, proxy statements and other information
filed by the Company with the Commission may also be inspected at the offices of
the NYSE, 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a registration statement on Form
S-4 (including all amendments, exhibits and schedules thereto, the "Registration
Statement"), with respect to the offering made hereby. As permitted by the rules
and regulations of the Commission, this Prospectus omits certain information
contained in the Registration Statement. Such additional information may be
obtained from the Commission's principal office in Washington, D.C. as set forth
above. For further information, reference is made to the Registration Statement.
Statements contained in this Prospectus as to the contents of any agreement,
instrument or other document are not necessarily complete, and, in each
instance, reference is made to the copy of such agreement, instrument or
document filed as an exhibit to the Registration Statement, incorporated by
reference into this Prospectus or otherwise filed with the Commission, each such
statement being qualified in its entirety by such reference. Additional updating
information with respect to the Company may be provided in the future by means
of appendices or supplements to this Prospectus.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following reports and other documents previously filed by the Company
with the Commission under the Exchange Act are incorporated by reference in this
Prospectus:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
January 31, 1998;
(b) the Company's Current Reports on Form 8-K dated July 15, 1997, January
15, 1998, February 19, 1998, March 2, 1998, March 10, 1998, March 16, 1998 and
April 1, 1998.
All reports and other documents filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to
the date of this Prospectus and prior to the termination of the offering to
which this Prospectus relates shall be deemed to be incorporated by reference in
this Prospectus and to be part hereof from the date of filing such documents.
Any statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein, or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference herein, modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide, without charge, to each person to whom a copy of
this Prospectus is delivered, upon written or oral request of such person, a
copy of any and all of the information that has been or may be incorporated by
reference herein (other than exhibits to such documents unless such exhibits are
specifically incorporated by reference into such documents). Such requests
should be directed to CKE Restaurants, Inc., Attn: General Counsel, 1200 North
Harbor Boulevard, Anaheim, California 92801 (telephone (714) 774-5796).
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THE COMPANY
The Company is a leading nationwide owner, operator and franchisor of
quick-service restaurants with 3,981 branded restaurant units operating as of
January 26, 1998, primarily under the Carl's Jr. and Hardee's brand names. Based
on domestic system-wide sales, the Company's Hardee's and Carl's Jr. chains are
the fourth and seventh largest quick-service hamburger restaurant chains in the
United States, respectively. The Company also owns and operates quick-service
Mexican restaurants under the Taco Bueno brand name.
- Carl's Jr.(R) -- Carl's Jr. was founded in 1956 and is located primarily
in the Western United States, with a leading market presence in
California. The Carl's Jr. menu features several charbroiled hamburgers,
chicken sandwiches, steak sandwiches and other signature items, including
the Famous Star, Western Bacon Cheeseburger(R), Super Star(R),
Charbroiler Chicken Sandwiches(R), Crispy Chicken Sandwiches and the
Charbroiled Sirloin Steak Sandwich. The Company believes that Carl's Jr.
maintains a strong price-value image with its customers because its menu
items are generally made-to-order, meet exacting quality standards, are
offered in generous portions and have a strong reputation for quality and
taste. As of January 26, 1998, the Carl's Jr. system included 708
restaurants, of which 443 were operated by the Company and 265 were
operated by the Company's franchisees and licensees.
- Hardee's(R) -- Hardee's, which was acquired by the Company in July 1997,
was founded in 1961 and has a leading market presence in the Southeastern
and Midwestern United States. Hardee's strength is its breakfast menu,
generating approximately 30% of its overall revenues, which is one of the
highest percentages in the quick-service hamburger restaurant industry.
Hardee's breakfast menu features made-from-scratch biscuits, biscuit
breakfast sandwiches and other items such as hash rounds and breakfast
platters. The current Hardee's lunch and dinner menu includes hamburgers
and fried chicken. Since its acquisition of Hardee's, the Company's
management has implemented certain improvements to the Hardee's menu by
streamlining its product offerings and is in the process of adding in
selected markets certain Carl's Jr. lunch and dinner menu items to
complement Hardee's strong breakfast menu. As of January 26, 1998, the
Hardee's system included 3,038 restaurants, of which 863 were operated by
the Company and 2,175 were operated by the Company's franchisees and
licensees. On April 1, 1998, the Company acquired Flagstar Enterprises,
Inc. ("FEI"), an operator of 557 Hardee's restaurants located in the
Southeast and the largest franchisee of the Hardee's system (the "FEI
Acquisition"). As a result of the FEI Acquisition, 1,420 of the 3,038
Hardee's restaurants operated as of January 26, 1998 are operated by the
Company and 1,618 are operated by the Company's franchisees and
licensees.
- Taco Bueno(R) -- The Company owns and operates 109 Taco Bueno
quick-service Mexican restaurants located in Texas and Oklahoma. Taco
Bueno seeks to differentiate itself from its principal competitors by
offering a diverse menu featuring generous portions of freshly prepared,
high quality food items. In addition to typical quick-service Mexican
offerings, such as burritos, tacos, tostadas and combination meals, Taco
Bueno features a number of signature menu items, such as its Chicken Taco
Salad and Mucho Burrito Platter.
The Company's principal executive offices are located at 1200 North Harbor
Boulevard, Anaheim, California 92801, and its telephone number is (714)
774-5796. References herein to the Company refer to CKE Restaurants, Inc. and
its subsidiaries, unless the context requires otherwise.
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RISK FACTORS
In addition to the other information set forth and incorporated by
reference in this Prospectus, prospective investors should consider carefully
the following factors relating to the business of the Company, before acquiring
the securities offered hereby.
Uncertainties Related to the Integration of Hardee's and FEI. The
acquisition of Hardee's significantly increased the size of the Company.
Managing the Company and integrating the acquired business operations of
Hardee's will continue to present a significant challenge to the Company's
management. Historically, Hardee's has been a well-established but
underperforming brand which has recently experienced declining system-wide
same-store sales and a declining market share in the quick-service hamburger
restaurant industry. The Company continues to evaluate the restaurant operations
of Hardee's and various short- and long-term strategic considerations in the
process of assessing the extent to which Hardee's restaurant operations will be
integrated, restructured or otherwise modified by the Company. One of the
objectives of the Company's turnaround strategies for Hardee's is to stem the
recent negative operating trends experienced by Hardee's. However, there can be
no assurance that these strategies will be successful. If the Company is unable
to achieve anticipated improvements in restaurant-level operating margins or
reductions in corporate overhead costs in its Hardee's operations on a timely
basis, cash flows generated from Hardee's operations may not be adequate to
support the Company's turnaround strategies for Hardee's, some of which require
significant capital expenditures. The Company's success will also depend, in
part, on its Hardee's franchisees. Hardee's franchisees are not required to
participate in implementing the Company's strategies and there can be no
assurance that Hardee's franchisees will participate. Lack of participation by
Hardee's franchisees in implementing the Company's strategies could delay or
limit the success of the Company's strategies. Restructuring and integrating the
restaurant operations of Hardee's will require the dedication of significant
capital and management resources, which may cause an interruption of, or a loss
of momentum in, the activities of the Company. The difficulties of such
restructuring and integration may be increased by the necessity of coordinating
geographically separate organizations and selectively introducing the Carl's Jr.
brand into markets in which Carl's Jr. restaurants have never operated, all of
which, together with other factors beyond the Company's control, may adversely
affect the cost, implementation, execution and timing of the Company's
turnaround strategies for Hardee's. Failure to effectively accomplish the
integration of the Company's operations or to improve Hardee's results of
operations could have a material adverse effect on the Company's financial
condition and results of operations.
The FEI Acquisition results in another significant increase in the size of
the Company. Integrating the acquired business operations of FEI also presents a
significant challenge to the Company's management, and may affect the
implementation and timing of the Company's turnaround strategies for Hardee's.
The Company believes that the FEI Acquisition will help the Company achieve a
greater degree of control over the entire Hardee's system; however, no
assurances can be given that the Company will realize the benefits it
anticipates from the FEI Acquisition or that the FEI Acquisition will not
adversely affect the Company's financial condition or results of operations.
Increased Leverage. In order to finance the Hardee's acquisition and to
make borrowings available to the Company for working capital and other corporate
purposes, in July 1997 the Company entered into a term loan facility of $75.0
million (the "Term Loan Facility") and a $225.0 million revolving credit
facility (the "Revolving Credit Facility" and, collectively with the Term Loan
Facility, the "Senior Credit Facility"). As of January 26, 1998, borrowings of
$67.5 million remained outstanding under the Term Loan Facility and borrowings
of $71.0 million remained outstanding under the Revolving Credit Facility. On
April 1, 1998, the Company amended the Senior Credit Facility to increase the
aggregate principal amounts of the lenders' commitments under the Term Loan
Facility to $250.0 million and under the Revolving Credit Facility to $250.0
million. The Company incurred borrowings of $213.2 million thereunder to finance
a portion of the purchase price of the FEI Acquisition. In addition, in March
1998 the Company completed a private placement of $197.2 million aggregate
principal amount of 4 1/4% Convertible Subordinated Notes due 2004 (the
"Notes"), the net proceeds of which were also used to finance the FEI
acquisition. As a result, the ratio of the Company's long-term debt to its total
capitalization at January 26, 1998 has increased from 28.2% to 56.5%, as
adjusted to give pro forma effect to the FEI Acquisition and related financing
transactions. The
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Company's increased degree of leverage could have important consequences to
investors, including the following: (i) the Company's ability to obtain
additional financing for working capital, capital expenditures, acquisitions and
general corporate purposes may be decreased in the future; (ii) an increased
portion of the Company's cash flow from operations will be dedicated to the
payment of principal and interest on its indebtedness, thereby reducing the
funds available to the Company for other purposes; (iii) most of the Company's
borrowings are and will continue to be at variable rates of interest (including
borrowings under the Senior Credit Facility), which exposes the Company to the
risk of increased interest rates; (iv) the Company may be substantially more
leveraged than certain of its competitors, which may place the Company at a
competitive disadvantage; and (v) the Company's substantial degree of leverage
may limit its flexibility to adjust to changing market conditions, reduce its
ability to withstand competitive pressures and make it more vulnerable to a
downturn in general economic conditions or its businesses. The Company's ability
to make scheduled payments or to refinance its obligations with respect to its
indebtedness, and to comply with the financial covenants and other obligations
under its debt instruments, will depend on its financial and operating
performance, which in turn will be subject to economic conditions and to
financial, business and other factors beyond its control. There can be no
assurance that the Company's operating results, cash flow and capital resources
will be sufficient for payment of its indebtedness in the future.
Risks Associated with Growth Strategy. The Company's growth strategy
includes, among other things, opening additional Company-operated and franchised
restaurants, dual-branding its restaurant concepts and remodeling its
restaurants. The success of the Company's growth strategy will depend on
numerous factors, many of which are beyond the control of the Company and its
franchisees, including the hiring, training and retention of qualified
management and other restaurant personnel, the ability to obtain necessary
governmental permits and approvals, the availability of appropriate financing
and general economic conditions. The Company and its franchisees face
competition from other restaurant operators, retail chains, companies and
developers for desirable site locations, which may adversely affect the cost,
implementation and timing of the Company's expansion plans. To manage its
planned expansion, the Company must ensure the continuing adequacy of its
existing systems and procedures, including its supply and distribution
arrangements, restaurant management, financial controls and information systems.
The Company's growth will also depend in part on its ability to increase
sales at existing restaurants. In addition to its turnaround strategies for
Hardee's, the Company expects to continue remodeling and upgrading equipment at
its Hardee's restaurants. The Company has substantially completed its remodeling
program for its Company-operated Carl's Jr. restaurants and plans to convert at
least 60 of its Carl's Jr. restaurants to Carl's Jr./Green Burrito dual-brand
restaurants in each of the next three years. The Company will incur significant
capital expenditures in remodeling and converting restaurants and will
experience a loss of revenues during the brief periods of time that restaurants
are closed for remodeling or conversion. There can be no assurance that such
remodels and conversions will increase the revenues generated by these
restaurants or, even if revenues are increased, that such increases will be
sustainable. In addition, although the sales results experienced by the
Company-operated Carl's Jr. restaurants that have been remodeled or converted to
dual-brand restaurants have generally been favorable to date, there can be no
assurance that such favorable sales results are sustainable or that they are
indicative of sales results that will be achieved by restaurants to be remodeled
or converted in the future. There can also be no assurance that the Company will
be able to achieve same-store sales increases in its Company-operated
restaurants.
Environmental Matters. The Company is subject to federal, state and local
laws, regulations and ordinances that (i) govern activities or operations that
may have adverse environmental effects, such as discharges to air and water, as
well as handling and disposal practices for solid and hazardous wastes, and (ii)
impose liability for the costs of cleaning up, and certain damages resulting
from, sites of past spills, disposals or other releases of hazardous materials
(together, "Environmental Laws"). In particular, under applicable Environmental
Laws, the Company may be responsible for remediation of environmental conditions
and may be subject to associated liabilities (including liabilities resulting
from lawsuits brought by private litigants) relating to its restaurants and the
land on which its restaurants are located, regardless of whether the Company
leases or owns the restaurants or land in question and regardless of whether
such environmental conditions were created by the Company or by a prior owner or
tenant. There can be no
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assurance that environmental conditions relating to prior, existing or future
restaurants or restaurant sites will not have a material adverse effect on the
Company.
Risks Related to Acquisition Strategy. Although the Company is not
currently contemplating any significant additional acquisitions of other
restaurant companies, it will continue to evaluate investment opportunities in
other restaurant companies. Acquisitions involve a number of risks that could
adversely affect the Company's operating results, including the diversion of
management's attention, the assimilation of the operations and personnel of the
acquired companies, the amortization of acquired intangible assets and the
potential loss of key employees. No assurance can be given that any acquisition
or investment by the Company will not materially and adversely affect the
Company or that any such acquisition or investment will enhance the Company's
business. If the Company determines to make any significant acquisitions of, or
investments in, other businesses, the Company may be required to sell additional
equity or debt securities or obtain additional credit facilities. The sales, if
any, of additional equity or convertible debt securities could result in
additional dilution to the Company's stockholders.
Competition. The food service industry is intensely competitive with
respect to the quality and value of food products offered, concept, service,
price, dining experience and location. The Company primarily competes with major
restaurant chains, some of which dominate the quick-service restaurant industry,
and also competes with a variety of other food service companies and fast-food
restaurants. The Company's competitors also include a variety of mid-price,
full-service casual dining restaurants, health and nutrition-oriented
restaurants, delicatessens and prepared food stores, as well as supermarkets and
convenience stores. Many of the Company's competitors have substantially greater
financial, marketing and other resources than the Company, which may give them
certain competitive advantages. Certain of the major quick-service restaurant
chains have increasingly offered selected food items and combination meals at
discounted prices. In recent years, the Company's restaurant sales were
adversely affected by aggressive promotions and price reductions by its
competitors. Future changes in the pricing or other marketing strategies of one
or more of the Company's competitors could have a material adverse effect on the
Company's financial condition and results of operations. As the Company's
competitors expand operations, competition can be expected to intensify. Such
increased competition could have a material adverse effect on the Company's
financial condition and results of operations.
Food Service Industry. Food service businesses are often affected by
changes in consumer tastes, national, regional and local economic conditions and
demographic trends. The performance of individual restaurants may be adversely
affected by factors such as traffic patterns, demographics and the type, number
and location of competing restaurants. Multi-unit food service businesses such
as the Company's can also be materially and adversely affected by publicity
resulting from poor food quality, illness, injury or other health concerns or
operating issues stemming from one restaurant or a limited number of restaurants
or from consumer concerns with respect to the nutritional value of quick-service
food. Dependence on frequent deliveries of fresh produce and groceries subjects
food service businesses such as the Company's to the risk that shortages or
interruptions in supply, caused by adverse weather or other conditions, could
adversely affect the availability, quality and cost of ingredients. In addition,
unfavorable trends or developments concerning factors such as inflation,
increased food, labor and employee benefit costs (including increases in hourly
wage and unemployment tax rates), increases in the number and locations of
competing quick-service restaurants, regional weather conditions and the
availability of experienced management and hourly employees may also adversely
affect the food service industry in general and the Company's financial
condition and results of operations in particular. Changes in economic
conditions affecting the Company's customers could reduce traffic in some or all
of the Company's restaurants or impose practical limits on pricing, either of
which could have a material adverse effect on the Company's financial condition
and results of operations. The continued success of the Company will depend in
part on the ability of the Company's management to anticipate, identify and
respond to changing conditions.
Dependence on Key Personnel. The Company believes that its success will
depend in part on the continuing services of its key executives, including
William P. Foley II, Chairman of the Board and Chief Executive Officer, and C.
Thomas Thompson, President and Chief Operating Officer. In addition to his
position with the Company, Mr. Foley currently serves as a director or executive
officer of certain other
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business entities and a meaningful portion of his time is devoted to such other
businesses. The loss of the services of either of these executives could have a
material adverse effect upon the Company's business, and there can be no
assurance that qualified replacements would be available. The Company's
continued growth will also depend in part on its ability to attract and retain
additional skilled management personnel.
Government Regulations. The restaurant industry is subject to extensive
federal, state and local governmental regulations, including those relating to
the preparation and sale of food and those relating to building and zoning
requirements. The Company and its franchisees are also subject to laws governing
their relationships with employees, including minimum wage requirements,
overtime, working and safety conditions and citizenship requirements. The
Company is also subject to federal regulation and certain state laws which
govern the offer and sale of franchises. Many state franchise laws impose
substantive requirements on franchise agreements, including limitations on
noncompetition provisions and on provisions concerning the termination or
nonrenewal of a franchise. Some states require that certain materials be
registered before franchises can be offered or sold in that state. The failure
to obtain or retain licenses or approvals to sell franchises could adversely
affect the Company and its franchisees. Many of the Company's employees are paid
hourly rates based upon the federal and state minimum wage laws. Recent
legislation increasing the minimum wage has resulted in higher labor costs to
the Company and its franchisees. The Company anticipates that increases in the
minimum wage may be offset through pricing and other cost control efforts;
however, there can be no assurance that the Company or its franchisees will be
able to pass such additional costs on to customers in whole or in part.
Litigation. The Company is from time to time the subject of complaints and
litigation from customers alleging illness, injury or other food quality, health
or operational concerns. The Company also is the subject of complaints or
allegations from employees and franchisees from time to time. The Company
believes that the lawsuits, claims and other legal matters to which it is
subject in the course of its business are not material to the Company's
financial condition or results of operations, but an existing or future lawsuit
or claim could result in an adverse decision against the Company that could have
a material adverse effect on the Company's financial condition and results of
operations.
Anti-Takeover Provisions. The Company's Certificate of Incorporation and
Bylaws include several provisions and features intended to render more difficult
certain unsolicited or hostile attempts to acquire the Company. These features
include, among other things, the establishment of a classified Board of
Directors with staggered terms of office and cumulative voting in the election
of directors, the requirement of a supermajority vote of stockholders to approve
certain business combinations, the elimination of the right of stockholders to
call special meetings of stockholders or to act by written consent, advance
notice requirements for stockholder proposals and director nominations,
provisions that directors may be removed only for cause and that vacancies in
the Board of Directors may (unless the Board of Directors determines otherwise)
be filled only by a majority of the remaining directors, and a requirement for a
supermajority vote of stockholders to amend certain of the foregoing provisions.
In light of the foregoing, the Company has elected, in its Certificate of
Incorporation, not to be governed by Section 203 of the Delaware General
Corporation Law, which limits the ability of a corporation to engage in certain
"business combinations" (as defined therein) with an "interested stockholder"
(as defined therein). In addition, the Board of Directors has the authority,
without further action by the Company's stockholders, to issue up to five
million shares of preferred stock in one or more series, and to fix the rights,
preferences and restrictions thereof. These provisions could have the effect of
making it more difficult for a third party to acquire, or of discouraging a
third party from attempting to acquire, control of the Company. Such provisions
could also limit the price that investors might be willing to pay in the future
for shares of the Company's Common Stock. See "Description of Capital Stock."
Stock Price Volatility. The market price of the Company's Common Stock has
risen substantially since fiscal 1996. The market price of the Common Stock
could be substantially affected by quarterly variations in the actual or
anticipated results of operations of the Company, its competitors and other
companies in the restaurant industry, as well as changes in general conditions
in the economy, the financial markets or the quick-service restaurant industry,
the failure by the Company to meet securities analysts' expectations, changes in
securities analysts' recommendations regarding the Common Stock, the occurrence
of natural disasters, or other developments affecting the Company or its
competitors. In recent years the stock market
8
<PAGE> 10
has experienced significant price and volume fluctuations. This volatility has
had a significant effect on the market prices of securities issued by many
companies for reasons unrelated to the operating performance of these companies.
These broad market fluctuations may adversely affect the market price of the
Company's Common Stock.
Ability to Pay Dividends. The Company currently follows a policy of paying
semi-annual cash dividends on its Common Stock. However, the continued payment
of dividends on the Common Stock will depend on certain factors including the
Company's operating results, business requirements and financial condition and
such other factors that the Company's Board of Directors considers relevant.
Under certain circumstances, the Senior Credit Facility will restrict the
ability of the Company to pay cash dividends on the Common Stock.
RESALES OF SHARES
With the consent of the Company, this Prospectus may be used by Selling
Stockholders who have received or will receive Shares in connection with
acquisitions and who may wish to sell such Shares under circumstances requiring
or making desirable its use. The Company may consent to the use of this
Prospectus by Selling Stockholders for a limited period of time and subject to
limitations and conditions which may be varied by agreement between the Company
and one or more Selling Stockholders. Agreements with Selling Stockholders
permitting use of this Prospectus may provide that an offering of Shares be
effected in an orderly manner through securities dealers, acting as broker or
dealer, selected by the Company; that Selling Stockholders enter into custody
agreements with one or more banks with respect to such Shares; and that sales be
made only by one or more of the methods described in this Prospectus, as
appropriately supplemented or amended when required. Other than in circumstances
where the Company may receive certain benefits in connection with price guaranty
arrangements, the Company will not receive any of the proceeds from any sale of
Shares offered hereby by a Selling Stockholder.
Shares may be sold by Selling Stockholders hereunder on one or more
exchanges or otherwise; directly to purchasers in negotiated transactions; by or
through brokers or dealers, in ordinary brokerage transactions or transactions
in which the broker solicits purchasers; in block trades in which the broker or
dealer will attempt to sell Shares as agent but may position and resell a
portion of the block as principal; in transactions in which a broker or dealer
purchases as principal for resale for its own account; through underwriters or
agents or in any combination of the foregoing methods. Shares may be sold at a
fixed offering price, which may be changed, at the prevailing market price at
the time of sale, at prices related to such prevailing market price or at
negotiated prices. Any brokers, dealers, underwriters or agents may arrange for
others to participate in any such transaction and may receive compensation in
the form of discounts, commissions or concessions from Selling Stockholders
and/or the purchasers of Shares. The proceeds to a Selling Stockholder from any
sale of Shares will be net of any such compensation and of any expenses to be
borne by the Selling Stockholder. If required at the time that a particular
offer of Shares is made, a supplement to this Prospectus will be delivered that
describes any material arrangements for the distribution of Shares and the terms
of the offering, including, without limitation, the names of any underwriters,
brokers, dealers or agents and any discounts, commissions or concessions and
other items constituting compensation from the Selling Stockholder.
Selling Stockholders and any brokers, dealers, underwriters or agents that
participate with a Selling Stockholder in the distribution of Shares may be
deemed to be "underwriters" within the meaning of the Securities Act, in which
event any discounts, commissions or concessions received by any such brokers,
dealers, underwriters or agents and any profit on the resale of the Shares
purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act.
The Company may agree to indemnify Selling Stockholders and/or any such
brokers, dealers, underwriters or agents against certain civil liabilities,
including liabilities under the Securities Act, and to reimburse them for
certain expenses in connection with the offering and sale of Shares.
Selling Stockholders may also offer shares of Common Stock issued in past
and future acquisitions by means of prospectuses under other available
registration statements or pursuant to exemptions from the
9
<PAGE> 11
registration requirements of the Securities Act, including sales which meet the
requirements of Rule 144 or Rule 145(d) under the Securities Act.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 100,000,000 shares
of common stock, par value $0.01 per share (the "Common Stock"), and 5,000,000
shares of preferred stock, par value $0.01 per share (the "Preferred Stock"). As
of January 26, 1998, there were (i) 46,523,179 shares of Common Stock
outstanding, excluding 6,096,708 shares of Common Stock reserved for issuance
under the Company's stock option plans, of which 4,567,698 shares were issuable
upon the exercise of stock options outstanding as of January 26, 1998, and
excluding 4,091,465 shares of Common Stock reserved for issuance upon conversion
of the Notes, and (ii) no shares of Preferred Stock outstanding.
COMMON STOCK
The Company's Certificate of Incorporation provides for cumulative voting
by holders of Common Stock in the election of directors. Holders of Common Stock
are entitled to one vote per share with respect to all other matters as to which
they are entitled to vote. Cumulative voting rights in the election of directors
means that each holder of Common Stock is entitled at all elections of directors
to as many votes as shall equal the number of votes that (except for the
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 Common 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
of directors to be voted for, or for any two or more of them as he or she may
see fit. The Company's Board of Directors is divided into three classes, with
each class currently consisting of three directors (although one such class
currently has a vacancy). One class is elected at each annual meeting of
stockholders for a term of three years to succeed those directors whose terms
expire at that annual meeting. Cumulative voting, when combined with the
Company's classified Board of Directors, may make it more difficult for a third
party to gain control of the Board of Directors of the Company.
Subject to preferences that may be applicable to any then outstanding
Preferred Stock, the holders of Common Stock are entitled to receive ratably
such dividends, if any, as may be declared from time to time by the Board of
Directors out of funds legally available therefor. In the event of a
liquidation, dissolution or winding up of the Company, holders of Common Stock
are entitled to share ratably in all assets remaining after payment of or
provision for liabilities of the Company and the liquidation preference, if any,
of any then outstanding Preferred Stock. Holders of Common Stock have no
preemptive rights and have no right to convert their Common Stock into any other
securities.
PREFERRED STOCK
The Board of Directors has the authority, without further action by the
stockholders, to issue shares of Preferred Stock from time to time in one or
more series and to fix the number of shares to be included in each series, the
designations, powers, preferences and rights of the shares of each such series
and any qualifications, limitations or restrictions on such series, including
but not limited to dividend rights, conversion rights, voting rights, rights and
terms of redemption (including sinking fund provisions), redemption prices,
liquidation preferences and to increase or decrease the number of shares of any
such series. Although it presently has no intention to do so, the Board of
Directors, without stockholder approval, could issue Preferred Stock with
dividend, voting, conversion and other rights which could adversely affect the
payment of dividends to, or the voting power or other rights of, the holders of
Common Stock. The issuance of Preferred Stock may make it more difficult for a
third party to gain control of the Company.
CERTAIN CHARTER PROVISIONS
Certain of the provisions of the Company's Certificate of Incorporation and
Bylaws will likely make it more difficult for another person or entity to effect
certain business combinations with the Company or to take control of the Board
of Directors of the Company. These provisions include, among others, (a) the
10
<PAGE> 12
establishment of a classified Board of Directors with staggered terms of office
and the cumulative voting rights described above; (b) the requirements of a
supermajority vote of stockholders to approve certain business combinations; (c)
the elimination of the right of stockholders to call special meetings of
stockholders or to act by written consent; (d) advance notice requirements for
stockholder proposals and director nominations; (e) a provision that directors
may be removed only for cause; and (f) a provision that a vacancy in any
directorship, including a vacancy arising through an increase in the number of
directors, may (unless the Board of Directors determines otherwise) be filled
only by a majority of the remaining directors, even though less than a quorum,
or by the sole remaining director. Any amendment or repeal of the provisions
described in the preceding sentence (other than the provisions described in
clause (d) above) must be approved by a majority of the directors then in office
and by the affirmative vote of the holders of not less than 66 2/3% of the
shares of Voting Stock (as defined in the Certificate of Incorporation) then
outstanding. See "Risk Factors -- Anti-Takeover Provisions."
The Company has elected in its Certificate of Incorporation not to be
governed by Section 203 of the Delaware General Corporation Law, which limits
the ability of a corporation to engage in certain "business combinations" (as
defined in Section 203) with an "interested stockholder" (as defined in Section
203).
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Company's Common Stock is
ChaseMellon Shareholder Services, L.L.C.
VALIDITY OF COMMON STOCK
The validity of the Shares will be passed upon for the Company by Stradling
Yocca Carlson & Rauth, a Professional Corporation, Newport Beach, California.
EXPERTS
The consolidated financial statements of CKE Restaurants, Inc. and its
subsidiaries as of January 31, 1998 and 1997 and for each of the years in the
three-year period ended January 31, 1998, incorporated in this Prospectus by
reference to the Company's Annual Report on Form 10-K for the year ended January
31, 1998, have been so incorporated in reliance upon the report of KPMG Peat
Marwick LLP, independent certified public accountants, and upon the authority of
said firm as experts in accounting and auditing.
The combined financial statements of Hardee's Food Systems, Inc. for each
of the years in the three-year period ended December 31, 1996 incorporated in
this Prospectus by reference from the Company's Current Report on Form 8-K dated
July 15, 1997, have been audited by Deloitte & Touche LLP, independent auditors,
as stated in their report which is incorporated herein by reference and have
been so incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
11
<PAGE> 13
======================================================
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES OR AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN
WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY OFFER OR SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE
COMPANY OR THAT INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Forward-Looking Statements............ 2
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 3
The Company........................... 4
Risk Factors.......................... 5
Resales of Shares..................... 9
Description of Capital Stock.......... 10
Validity of Common Stock.............. 11
Experts............................... 11
</TABLE>
------------------------
======================================================
======================================================
[LOGO OF CKE RESTAURANTS]
LOGO
CKE RESTAURANTS, INC.
4,500,000 SHARES
COMMON STOCK
PROSPECTUS
, 1998
======================================================
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL") makes
provision for the indemnification of officers and directors in terms
sufficiently broad to indemnify officers and directors of the Registrant under
certain circumstances from liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933. The Registrant's Certificate
of Incorporation and Bylaws provide, in effect, that, to the fullest extent and
under the circumstances permitted by Section 145 of the DGCL, the Registrant
will indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he or she is 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
or enterprise. The Registrant may, in its discretion, similarly indemnify its
employees and agents. The Registrant's Certificate of Incorporation relieves the
Registrant's directors from monetary damages to the Registrant or its
stockholders for breach of such directors' fiduciary duty as directors to the
fullest extent permitted by the DGCL. Under Section 102(b)(7) of the DGCL, a
corporation may relieve its directors from personal liability to such
corporation or its stockholders for monetary damages for any breach of their
fiduciary duty as directors except (i) for any breach of the directors' duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) for willful or negligent violations of certain provisions of the DGCL
imposing certain requirements with respect to stock repurchases, redemptions and
dividends, or (iv) for any transaction from which the director derived an
improper personal benefit. Depending upon the character of the proceeding, under
Delaware law, the Registrant may indemnify against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with any action, suit or proceeding if the
person indemnified acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interest of the Registrant, and,
with respect to a criminal action or proceeding, had no cause to believe his or
her conduct was unlawful. To the extent that the director or officer of the
Registrant has been successful in the defense of any action, suit or proceeding
referred to above, the Registrant would have the right to indemnify him or her
against expenses (including attorneys' fees) actually and reasonably incurred in
connection therewith.
ITEM 21. EXHIBITS
<TABLE>
<S> <C>
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation.
23.1 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney (included on the signature page to the
Registration Statement -- see page II-3.)
</TABLE>
ITEM 22. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(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; and
II-1
<PAGE> 15
(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) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 of 1933, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 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), the issuer undertakes that 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 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 of 1933, 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 this
Form, 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.
(8) To supply by means of a post-effective amendment all required
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 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-2
<PAGE> 16
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-4 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 the 14th day of May,
1998.
CKE RESTAURANTS, INC.
By: /s/ WILLIAM P. FOLEY II,
------------------------------------
William P. Foley II,
Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned officers and directors of CKE Restaurants, Inc.
hereby constitutes and appoints William P. Foley II, Carl A. Strunk and Andrew
F. Puzder, and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments to
this Registration Statement, including post-effective amendments, and to file
the same, with all exhibits thereto, and other documentation in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in or about the premises,
as fully to all interests and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
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 has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ WILLIAM P. FOLEY II Chairman of the Board, Chief May 14, 1998
- ----------------------------------------------------- Executive Officer and Director
William P. Foley II (Principal Executive Officer)
/s/ CARL A. STRUNK Executive Vice President and May 14, 1998
- ----------------------------------------------------- Chief Financial Officer
Carl A. Strunk (Principal Financial Officer and
Accounting Officer)
/s/ BYRON ALLUMBAUGH Director May 14, 1998
- -----------------------------------------------------
Byron Allumbaugh
/s/ PETER CHURM Director May 14, 1998
- -----------------------------------------------------
Peter Churm
/s/ CARL L. KARCHER Director May 14, 1998
- -----------------------------------------------------
Carl L. Karcher
</TABLE>
II-3
<PAGE> 17
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ CARL N. KARCHER Director May 14, 1998
- -----------------------------------------------------
Carl N. Karcher
/s/ DANIEL D. (RON) LANE Vice Chairman of the Board and May 14, 1998
- ----------------------------------------------------- Director
Daniel D. (Ron) Lane
/s/ W. HOWARD LESTER Director May 14, 1998
- -----------------------------------------------------
W. Howard Lester
/s/ FRANK P. WILLEY Director May 14, 1998
- -----------------------------------------------------
Frank P. Willey
</TABLE>
II-4
<PAGE> 18
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NUMBER
- ------- ----------- -----------
<C> <S> <C>
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation, Counsel to the Registrant. --
23.1 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit 5.1). --
23.2 Consent of KPMG Peat Marwick LLP. --
23.3 Consent of Deloitte & Touche LLP
24.1 Power of Attorney (included on signature page to the
Registration Statement at page II-3). --
</TABLE>
<PAGE> 1
EXHIBIT 5.1
[STRADLING YOCCA CARLSON & RAUTH LETTERHEAD]
May 14, 1998
CKE Restaurants, Inc.
1200 North Harbor Boulevard
Anaheim, California 92801
Re: Registration Statement on Form S-4
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-4
filed by CKE Restaurants, Inc., a Delaware corporation (the "Company"), with the
Securities and Exchange Commission on May 14, 1998 (the "Registration
Statement"), in connection with the registration under the Securities Act of
1933, as amended, of an aggregate of up to 4,500,000 shares (the "Shares") of
Common Stock, par value $.01 per share, of the Company (the "Common Stock"),
that may be offered and issued by the Company from time to time in connection
with the acquisition by the Company, directly or indirectly, of various
businesses or assets or interests therein.
As your counsel in connection with this transaction, we have examined the
proceedings taken and are familiar with the proceedings proposed to be taken by
the Company in connection with the authorization, issuance and sale of the
Shares.
Based on the foregoing, it is our opinion that the Shares, when authorized
by the Company and issued and sold in the manner described in the Registration
Statement, will be validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and to the use of our name under the caption "Validity of Common
Stock" in the Prospectus which forms a part of the Registration Statement.
Very truly yours,
/s/ STRADLING YOCCA CARLSON & RAUTH
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
To the Board of Directors and Stockholders
CKE Restaurants, Inc.
We consent to the use in the Registration Statement on Form S-4 of CKE
Restaurants, Inc. of our report dated March 17, 1998, except for Note 9 and Note
22, relating to the amendment to the Company's Senior Credit Facility and
acquisition of Flagstar Enterprises, Inc., which are as of April 1, 1998,
incorporated by reference herein and the reference to our firm under the heading
"Experts" in the Prospectus, which is a part of the Registration Statement.
/s/ KPMG PEAT MARWICK LLP
Orange County, California
May 14, 1998
<PAGE> 1
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement of
CKE Restaurants, Inc. on Form S-4 of our report dated January 17, 1997, except
for Note 20, as to which the date is April 27, 1997, (which expresses an
unqualified opinion and includes an explanatory paragraph relating to the
adoption of Statement of Financial Accounting Standards No. 121 in 1996) on the
combined financial statements of Hardee's Food Systems, Inc. appearing in CKE
Restaurants, Inc.'s Current Report on Form 8-K dated July 15, 1997 and to the
reference to Deloitte & Touche LLP under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Raleigh, North Carolina
May 14, 1998
