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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 19, 1996
Au Bon Pain Co., Inc.
(Exact name of registrant as specified in its charter)
Delaware 0-19253 04-2723701
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
19 Fid Kennedy Avenue, Boston, Massachusetts 02210
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (617) 423-2100
N/A
(Former name or former address, if changed since last report.)
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Item 5. Other Events.
On April 19, 1996, the Board of Directors of Au Bon Pain Co., Inc. (the
"Corporation") voted to amend and restate the Corporation's By-laws. The
following summary of the principal amendments to the Corporation's By-laws does
not purport to be complete and is subject to, and qualified in its entirety by
reference to, the amended and restated By-laws which are attached as an exhibit
to this Report.
Section 4 of Article III and Section 3 of Article IV of the
Corporation's By-laws have been amended to provide for certain advance notice
and informational requirements for any new business or any Director nomination
which a stockholder wishes to propose for consideration at an annual meeting of
stockholders. Formerly, the Corporation's By-laws did not contain any provisions
relating to stockholder proposals or nominations of candidates for election as
Directors. Under the amended and restated By-laws, a stockholder who wishes to
submit such a proposal or nomination must be a stockholder of record both at the
time notice of the proposal or nomination is given and as of the record date for
the annual meeting in question. To be timely, a stockholder's notice must be
delivered to the Corporation not less than 60 days nor more than 150 days prior
to the anniversary date of the immediately preceding annual meeting of
stockholders (the "Anniversary Date"); provided, that in the event that the
annual meeting of stockholders in any year is to be held more than 30 days prior
to or more than 60 days after the Anniversary Date, then a stockholder's notice
must be delivered to the Corporation not later than the close of business on the
later of (i) the 10th day following the first date on which the date of such
meeting was publicly disclosed or (ii) the 60th day prior to the scheduled date
of such meeting. A stockholder notice must contain certain information intended
to identify the stockholder and the nature of the proposal and, in the case of
Director nominations, information comparable to that required under applicable
rules and regulations of the Securities and Exchange Commission.
Section 4 of Article III and Section 3 of Article IV further provide
that if the Board of Directors determines that any stockholder proposal or
nomination is not timely made or fails to satisfy the informational requirements
in any material respect, such proposal or nomination will not be considered at
the annual meeting. In addition, a stockholder's proposal or nomination will not
be acted upon at the annual meeting unless such stockholder or his
representative is present in person at the annual meeting.
Notwithstanding the amendments to Section 4 of Article III and Section
3 of Article IV of the Corporation's By-laws described above, a stockholder must
also comply with all applicable requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the rules and regulations thereunder
in connection with any stockholder proposal. Nothing in the amended and restated
By-laws shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the Corporation's proxy statement pursuant to Rule
14a-8 under the Exchange Act.
Section 2 of Article III of the Corporation's By-laws has been amended
to provide that special meetings of stockholders may be called only by the Board
of Directors or a Co-Chairman of the Board. The By-laws previously provided that
special meetings of stockholders could be called by (i) the Board of Directors,
(ii) a Co-Chairman of the Board or (iii) the Secretary of the Corporation upon
written application of one or more stockholders holding shares of stock
entitling such stockholder or stockholders to cast not less than 10% of the
votes entitled to be cast at such meeting.
Section 5 of Article III has been amended to authorize the Board of
Directors to reschedule and postpone any annual or special meeting of
stockholders and any record date with respect thereto. Section 5 also allows
adjournment of any stockholder meeting if the
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Board of Directors determines that adjournment (i) is necessary or appropriate
to enable the stockholders to consider fully information which the Board of
Directors determines has not been made sufficiently or timely available or (ii)
is otherwise in the best interests of the stockholders.
Section 12 has been added to Article I authorizing the Corporation to
appoint an inspector (who may be an officer, employee or agent of the
Corporation) to tabulate votes at stockholder meetings and to determine the
legality and sufficiency of the votes cast. All determinations made by the
inspector are subject to review by both the presiding officer of the meeting and
a court of competent jurisdiction.
Section 2 of Article VI has been amended to provide that Directors may
be removed only for "cause," and defines "cause" as (i) conviction of a felony,
(ii) declaration of unsound mind by order of court, (iii) gross dereliction of
duty, (iv) conviction of any crime involving moral turpitude, or (v) commission
of an action which constitutes intentional misconduct or a knowing violation of
law if such action in either event results both in an improper substantial
personal benefit and a material injury to the Corporation.
Item 7. Exhibits.
Exhibit No. Description
3(ii) By-laws of Au Bon Pain Co., Inc.
as amended and restated as of
April 19, 1996.
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Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Company has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AU BON PAIN CO., INC.
By: /s/ Anthony J. Carroll
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Anthony J. Carroll
Vice President and Chief
Financial Officer (Principal
Financial and Accounting
Officer)
Date: June 12, 1996
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