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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)
DELAWARE 5812 33-0602639
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification Number)
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:
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
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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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.
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ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(A) EXHIBITS:
EXHIBIT
NUMBER DESCRIPTION
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*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.
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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.
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(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.
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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
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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.
SIGNATURE TITLE DATE
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* Chairman of the Board and July 2, 1996
- ---------------------------------------- Chief Executive Officer
William P. Foley II (Principal Executive Officer)
* Chief Financial Officer July 2, 1996
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Joseph N. Stein
* Controller July 2, 1996
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John C. Fuller
* Director July 2, 1996
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Peter Churm
* Director July 2, 1996
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Carl L. Karcher
* Director July 2, 1996
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Carl N. Karcher
* Vice Chairman of the Board July 2, 1996
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Daniel D. (Ron) Lane
* Director July 2, 1996
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Frank P. Willey
* Director July 2, 1996
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W. Howard Lester
*By: /s/ ROBERT A. WILSON
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Robert A. Wilson
Attorney-in-fact
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INDEX TO EXHIBITS
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGES
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*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..........................................................
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* Previously filed.