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EXHIBIT 2.1
SECOND AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
AND REORGANIZATION
This Second Amendment, dated as of April 2, 1996 (this "Second
Amendment"), to the Agreement and Plan of Merger and Reorganization, dated as of
November 30, 1995 (the "Original Agreement"), as amended pursuant to the First
Amendment to Agreement and Plan of Reorganization, dated as of January 24, 1996
(the "First Amendment") is by and among Summit Family Restaurants Inc., a
Delaware corporation ("Summit"), and CKE Restaurants, Inc., a Delaware
corporation ("CKE"). Capitalized terms not defined herein have the meanings set
forth in the Original Agreement and the First Amendment. Except as specifically
amended below, all provisions of the Original Agreement and First Amendment
remain in full force and effect.
RECITAL
The respective Boards of Directors of Summit and CKE have
determined to amend the Original Agreement and the First Amendment as set forth
in this Second Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and promises contained herein and for other good and
valuable consideration the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. PURCHASE OF SUMMIT PREFERRED STOCK. On or prior to April 4,
1996, CKE shall purchase all of the shares of Summit Preferred Stock from the
holder thereof at a purchase price of $5.27 per share in cash. CKE hereby agrees
to vote all of such shares of Summit Preferred Stock in favor of the
transactions set forth in the Original Agreement, as amended by the First
Amendment and the Second Amendment.
2. CONVERSION OF SECURITIES (SECTION 2.1). The first paragraph
of Section 2.1 of the Original Agreement and the first paragraph of the
definition of "Merger Consideration" in Section 2.1 of the Original Agreement,
as amended by the First Amendment, are amended to read in full as follows:
At the Effective Time, by virtue of the Merger and without any action
on the part of the parties hereto each share of Summit Common Stock and
Summit Preferred Stock issued and outstanding immediately prior
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to the Effective Time, other than shares of Summit Common Stock for
which appraisal rights have been exercised pursuant to Section 262 of
the DGCL, and other than shares owned by CKE or its subsidiaries (which
will be cancelled), will be converted into the right to receive the
Merger Consideration.
"Merger Consideration" means, for each share of Summit Common
Stock and Summit Preferred Stock (other than shares owned by CKE or its
subsidiaries, which will be cancelled): (a) $2.63 in cash (without
interest) and (b) a number of shares of CKE Common Stock equal to $2.64
divided by the Adjusted CKE Price.
3. FAIRNESS OPINION (SECTION 6.9): Section 6.9 of the Original
Agreement, as amended by the First Amendment, is hereby modified to read in full
as follows:
Summit shall have received letters from Piper Jaffray Inc. confirming
the opinions rendered to Summit's Board of Directors on or prior to the
date of the Original Agreement, on or prior to the date of the First
Amendment and on or prior to the date of the Second Amendment to the
effect that the terms of the Merger are fair to the holders of Summit
Common Stock from a financial point of view, copies of which will be
delivered to CKE at the Closing.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. Sections 3.19(i)
and 4.12(i) of the Original Agreement are hereby deleted in their entirety. CKE
acknowledges receipt of the information provided to it regarding the separation
compensation plan and procedures and other matters pursuant to the letter, dated
February 29, 1996, from Summit. CKE and Summit agree that the such information
does not constitute a violation of the Original Agreement, as amended, including
Sections 3.19(vii) and 5.2(a) thereof.
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5. TERMINATION (SECTION 9.1). Sections 9.1(c)(i)(A) and
9.1(d)(i)(A) are hereby deleted in their entirety. The date May 30, 1996 in
every instance it appears in Section 9.1 in the Original Agreement, as amended
by the First Amendment, is hereby changed to June 30, 1996.
6. ADOPTION OF ORIGINAL AGREEMENT BY MERGER SUB. Summit
Merger, Inc., a Delaware corporation ("Summit Merger"), was recently organized
by CKE for purposes of completing the Merger. Summit Merger, by its execution
and delivery hereof, agrees to be bound by the terms and provisions of the
Original Agreement, as amended, and is hereby made a party to the Original
Agreement. For all purposes of the Original Agreement, all references to "Merger
Sub" shall be deemed to refer to Summit Merger.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment, or have caused this Amendment to be duly executed on their respective
behalf by their respective officers thereunto duly authorized, as of the day and
year first above written.
SUMMIT FAMILY RESTAURANTS INC.
By ____________________________________________
Don M. McComas
President and Chief Executive Officer
By ____________________________________________
Charlotte L. Miller
Senior Vice President &
General Counsel
CKE RESTAURANTS, INC.
By ____________________________________________
By ____________________________________________
SUMMIT MERGER, INC.
By ____________________________________________
By ____________________________________________