-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LWm1mH5RyCGHpKGLT8DJAVEAwQb4duq90ICpi2MJi44z/I3hvj2WemZ/Se3g8A0X EGtC41v63+2ZtSdioAnVqw== 0000892569-97-000584.txt : 19970306 0000892569-97-000584.hdr.sgml : 19970306 ACCESSION NUMBER: 0000892569-97-000584 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19970305 SROS: NYSE GROUP MEMBERS: ANDREW F. PUZDER GROUP MEMBERS: BYRON E. ALLUMBAUGH GROUP MEMBERS: C. HOWARD LESTER GROUP MEMBERS: C. THOMAS THOMPSON GROUP MEMBERS: CARL A. STRUNK GROUP MEMBERS: CARL LEO KARCHER GROUP MEMBERS: CARL N. KARCHER GROUP MEMBERS: CARY H. THOMPSON GROUP MEMBERS: CKE RESTAURANTS INC GROUP MEMBERS: DANIEL D. LANE GROUP MEMBERS: DANNY LANE GROUP MEMBERS: ERNIE SMITH GROUP MEMBERS: FIDELITY NATIONAL FINANCIAL, INC. GROUP MEMBERS: FRANK P. WILLEY GROUP MEMBERS: GLEN W. COCHRAN GROUP MEMBERS: PATRICK F. STONE GROUP MEMBERS: PAUL D. DEFALCO GROUP MEMBERS: RONALD R. MAUDSLEY GROUP MEMBERS: STEPHEN C. MAHOUD GROUP MEMBERS: WILLIAM A. IMPARATO GROUP MEMBERS: WILLIAM P. FOLEY, II SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CHECKERS DRIVE IN RESTAURANTS INC /DE CENTRAL INDEX KEY: 0000879554 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 581654960 STATE OF INCORPORATION: DE FISCAL YEAR END: 0101 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-42091 FILM NUMBER: 97550564 BUSINESS ADDRESS: STREET 1: 600 CLEVELAND ST 8TH FL STREET 2: STE 1050 CITY: CLEARWATER STATE: FL ZIP: 34615 BUSINESS PHONE: 8134413500 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CKE RESTAURANTS INC CENTRAL INDEX KEY: 0000919628 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 330602639 STATE OF INCORPORATION: DE FISCAL YEAR END: 0130 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1200 N HARBOR BLVD CITY: ANAHEIM STATE: CA ZIP: 92801 BUSINESS PHONE: 7147745796 SC 13D/A 1 AMENDMENT NO. 1 TO SCHEDULE 13D 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------- SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 1) CHECKERS DRIVE-IN RESTAURANTS, INC. (Name of Issuer) Common Stock, par value $.001 per share Title of Class of Securities 162809-10-7 (CUSIP Number) Andrew F. Puzder Executive Vice President and General Counsel CKE Restaurants, Inc. 1200 North Harbor Boulevard Anaheim, California 92801 Tel. (714) 774-5796 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) FEBRUARY 19, 1997 (Date of Event Which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(3) or (4), check the following box //. Check the following box if a fee is being paid with the statement //. 2 SCHEDULE 13D CUSIP NO.: 162809 10 7 (1) NAME OF REPORTING PERSON: CKE Restaurants, Inc. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: IRS No. 33-0602639 (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] (3) SEC USE ONLY (4) SOURCE OF FUNDS: WC (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 13,512,727 (1) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 13,512,727 (1) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 13,512,727 (1) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 19.9% (2) (14) TYPE OF REPORTING PERSON: CO - ------------------------- (1) Represents 6,162,299 shares of common stock and 7,350,428 warrants to purchase shares of common stock. Does not include 61,636 shares of Series A Preferred Stock which is not beneficially held. (2) Based upon 51,768,480 shares of Common Stock outstanding as of October 24, 1996 as reported by the issuer in its 10-Q for the quarterly period ended September 9, 1996 and an additional 8,771,929 shares of Common Stock as announced in the Checkers Drive-In Restaurants, Inc. ("Checkers") press release dated February 21, 1997, describing the $20 Million Private Placement. Page 2 of 72 Pages 3 SCHEDULE 13D CUSIP NO.: 162809 10 7 (1) NAME OF REPORTING PERSON: Fidelity National Financial, Inc. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: IRS No. 86-0498599 (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] (3) SEC USE ONLY (4) SOURCE OF FUNDS: WC (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 2,546,858 (1) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 2,546,858 (1) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 2,546,858 (1) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 4.1% (2) (14) TYPE OF REPORTING PERSON: CO - ------------------------- (1) Represents 438,596 shares of common stock and 2,108,262 warrants to purchase shares of common stock. Does not include 4,385 shares of Series A Preferred Stock which is not beneficially held. (2) Based upon 51,768,480 shares of Common Stock outstanding as of October 24, 1996 as reported by the issuer in its 10-Q for the quarterly period ended September 9, 1996 and an additional 8,771,929 shares of Common Stock as announced in the Checkers press release dated February 21, 1997, describing the $20 Million Private Placement. Page 3 of 72 Pages 4 SCHEDULE 13D CUSIP NO.: 162809 10 7 (1) NAME OF REPORTING PERSON: William P. Foley, II S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-#### (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] (3) SEC USE ONLY (4) SOURCE OF FUNDS: PF (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 1,073,998 (1) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 1,073,998 (1) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 1,073,998 (1) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 1.7% (2) (14) TYPE OF REPORTING PERSON: IN - ------------------------- (1) Represents 219,298 shares of common stock and 854,700 warrants to purchase shares of common stock. Does not include 2,192 shares of Series A Preferred Stock which is not beneficially held. (2) Based upon 51,768,480 shares of Common Stock outstanding as of October 24, 1996 as reported by the issuer in its 10-Q for the quarterly period ended September 9, 1996 and an additional 8,771,929 shares of Common Stock as announced in the Checkers press release dated February 21, 1997, describing the $20 Million Private Placement. Page 4 of 72 Pages 5 SCHEDULE 13D CUSIP NO.: 162809 10 7 (1) NAME OF REPORTING PERSON: Carl Leo Karcher S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-#### (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] (3) SEC USE ONLY (4) SOURCE OF FUNDS: PF (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 679,449 (1) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 679,449 (1) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 679,449 (1) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 1.1% (2) (14) TYPE OF REPORTING PERSON: IN - ------------------------- (1) Represents 109,649 shares of common stock and 569,800 warrants to purchase shares of common stock. Does not include 1,096 shares of Series A Preferred Stock which is not beneficially held. (2) Based upon 51,768,480 shares of Common Stock outstanding as of October 24, 1996 as reported by the issuer in its 10-Q for the quarterly period ended September 9, 1996 and an additional 8,771,929 shares of Common Stock as announced in the Checkers press release dated February 21, 1997, describing the $20 Million Private Placement. Page 5 of 72 Pages 6 SCHEDULE 13D CUSIP NO.: 162809 10 7 (1) NAME OF REPORTING PERSON: Stephen C. Mahood S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-#### (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] (3) SEC USE ONLY (4) SOURCE OF FUNDS: PF (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 186,309 (1) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 186,309 (1) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 186,309 (1) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3) (14) TYPE OF REPORTING PERSON: IN - ------------------------- (1) Represents 43,859 shares of common stock and 142,450 warrants to purchase shares of common stock. Does not include 438 shares of Series A Preferred Stock which is not beneficially held. (2) Based upon 51,768,480 shares of Common Stock outstanding as of October 24, 1996 as reported by the issuer in its 10-Q for the quarterly period ended September 9, 1996 and an additional 8,771,929 shares of Common Stock as announced in the Checkers press release dated February 21, 1997, describing the $20 Million Private Placement. (3) Less than 1%. Page 6 of 72 Pages 7 SCHEDULE 13D CUSIP NO.: 162809 10 7 (1) NAME OF REPORTING PERSON: William A. Imparato S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-#### (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] (3) SEC USE ONLY (4) SOURCE OF FUNDS: PF (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 166,629 (1) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 166,629 (1) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 166,629 (1) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3) (14) TYPE OF REPORTING PERSON: IN - ------------------------- (1) Represents 109,649 shares of common stock and 56,980 warrants to purchase shares of common stock. Does not include 1,096 shares of Series A Preferred Stock which is not beneficially held. (2) Based upon 51,768,480 shares of Common Stock outstanding as of October 24, 1996 as reported by the issuer in its 10-Q for the quarterly period ended September 9, 1996 and an additional 8,771,929 shares of Common Stock as announced in the Checkers press release dated February 21, 1997, describing the $20 Million Private Placement. (3) Less than 1%. Page 7 of 72 Pages 8 SCHEDULE 13D CUSIP NO.: 162809 10 7 (1) NAME OF REPORTING PERSON: C. Thomas Thompson S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-#### (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] (3) SEC USE ONLY (4) SOURCE OF FUNDS: PF (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 50,419 (1) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 50,419 (1) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 50,419 (1) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3) (14) TYPE OF REPORTING PERSON: IN - ------------------------- (1) Represents 21,929 shares of common stock and 28,490 warrants to purchase shares of common stock. Does not include 219 shares of Series A Preferred Stock which is not beneficially held. (2) Based upon 51,768,480 shares of Common Stock outstanding as of October 24, 1996 as reported by the issuer in its 10-Q for the quarterly period ended September 9, 1996 and an additional 8,771,929 shares of Common Stock as announced in the Checkers press release dated February 21, 1997, describing the $20 Million Private Placement. (3) Less than 1%. Page 8 of 72 Pages 9 SCHEDULE 13D CUSIP NO.: 162809 10 7 (1) NAME OF REPORTING PERSON: Andrew F. Puzder S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-#### (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] (3) SEC USE ONLY (4) SOURCE OF FUNDS: PF (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 50,419 (1) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 50,419 (1) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 50,419 (1) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3) (14) TYPE OF REPORTING PERSON: IN - ------------------------- (1) Represents 21,929 shares of common stock and 28,490 warrants to purchase shares of common stock. Does not include 219 shares of Series A Preferred Stock which is not beneficially held. (2) Based upon 51,768,480 shares of Common Stock outstanding as of October 24, 1996 as reported by the issuer in its 10-Q for the quarterly period ended September 9, 1996 and an additional 8,771,929 shares of Common Stock as announced in the Checkers press release dated February 21, 1997, describing the $20 Million Private Placement. (3) Less than 1%. Page 9 of 72 Pages 10 SCHEDULE 13D CUSIP NO.: 162809 10 7 (1) NAME OF REPORTING PERSON: Carl A. Strunk S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-#### (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] (3) SEC USE ONLY (4) SOURCE OF FUNDS: PF (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 69,419 (1) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 69,419 (1) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 69,419 (1) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3) (14) TYPE OF REPORTING PERSON: IN - ------------------------- (1) Represents 40,929 shares of common stock and 28,490 warrants to purchase shares of common stock. Does not include 219 shares of Series A Preferred Stock which is not beneficially held. (2) Based upon 51,768,480 shares of Common Stock outstanding as of October 24, 1996 as reported by the issuer in its 10-Q for the quarterly period ended September 9, 1996 and an additional 8,771,929 shares of Common Stock as announced in the Checkers press release dated February 21, 1997, describing the $20 Million Private Placement. (3) Less than 1%. Page 10 of 72 Pages 11 SCHEDULE 13D CUSIP NO.: 162809 10 7 (1) NAME OF REPORTING PERSON: Frank P. Willey S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-#### (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] (3) SEC USE ONLY (4) SOURCE OF FUNDS: PF (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 252,099 (1) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 252,009 (1) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 252,099 (1) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3) (14) TYPE OF REPORTING PERSON: IN - ------------------------- (1) Represents 109,649 shares of common stock and 142,450 warrants to purchase shares of common stock. Does not include 1,096 shares of Series A Preferred Stock which is not beneficially held. (2) Based upon 51,768,480 shares of Common Stock outstanding as of October 24, 1996 as reported by the issuer in its 10-Q for the quarterly period ended September 9, 1996 and an additional 8,771,929 shares of Common Stock as announced in the Checkers press release dated February 21, 1997, describing the $20 Million Private Placement. (3) Less than 1%. Page 11 of 72 Pages 12 SCHEDULE 13D CUSIP NO.: 162809 10 7 (1) NAME OF REPORTING PERSON: Patrick F. Stone S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No.###-##-#### (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] (3) SEC USE ONLY (4) SOURCE OF FUNDS: PF (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 21,929 (1) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 21,929(1) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 21,929 (1) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3) (14) TYPE OF REPORTING PERSON: IN - ------------------------- (1) Represents 21,929 shares of common stock. Does not include 219 shares of Series A Preferred Stock which is not beneficially held. (2) Based upon 51,768,480 shares of Common Stock outstanding as of October 24, 1996 as reported by the issuer in its 10-Q for the quarterly period ended September 9, 1996 and an additional 8,771,929 shares of Common Stock as announced in the Checkers press release dated February 21, 1997, describing the $20 Million Private Placement. (3) Less than 1%. Page 12 of 72 Pages 13 SCHEDULE 13D CUSIP NO.: 162809 10 7 (1) NAME OF REPORTING PERSON: Daniel D. Lane S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-#### (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] (3) SEC USE ONLY (4) SOURCE OF FUNDS: PF (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 87,719 (1) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 87,719 (1) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 87,719 (1) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3) (14) TYPE OF REPORTING PERSON: IN - ------------------------- (1) Represents 87,719 shares of common stock. Does not include 877 shares of Series A Preferred Stock which is not beneficially held. (2) Based upon 51,768,480 shares of Common Stock outstanding as of October 24, 1996 as reported by the issuer in its 10-Q for the quarterly period ended September 9, 1996 and an additional 8,771,929 shares of Common Stock as announced in the Checkers press release dated February 21, 1997, describing the $20 Million Private Placement. (3) Less than 1%. Page 13 of 72 Pages 14 SCHEDULE 13D CUSIP NO.: 162809 10 7 (1) NAME OF REPORTING PERSON: Danny Lane S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-#### (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] (3) SEC USE ONLY (4) SOURCE OF FUNDS: PF (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 21,929 (1) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 21,929 (1) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 21,929 (1) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3) (14) TYPE OF REPORTING PERSON: IN - ------------------------- (1) Represents 21,929 shares of common stock. Does not include 219 shares of Series A Preferred Stock which is not beneficially held. (2) Based upon 51,768,480 shares of Common Stock outstanding as of October 24, 1996 as reported by the issuer in its 10-Q for the quarterly period ended September 9, 1996 and an additional 8,771,929 shares of Common Stock as announced in the Checkers press release dated February 21, 1997, describing the $20 Million Private Placement. (3) Less than 1%. Page 14 of 72 Pages 15 SCHEDULE 13D CUSIP NO.: 162809 10 7 (1) NAME OF REPORTING PERSON: Cary H. Thompson S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-#### (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] (3) SEC USE ONLY (4) SOURCE OF FUNDS: PF (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 21,929 (1) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 21,929 (1) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 21,929 (1) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3) (14) TYPE OF REPORTING PERSON: IN - ------------------------- (1) Represents 21,929 shares of common stock. Does not include 219 shares of Series A Preferred Stock which is not beneficially held. (2) Based upon 51,768,480 shares of Common Stock outstanding as of October 24, 1996 as reported by the issuer in its 10-Q for the quarterly period ended September 9, 1996 and an additional 8,771,929 shares of Common Stock as announced in the Checkers press release dated February 21, 1997, describing the $20 Million Private Placement. (3) Less than 1%. Page 15 of 72 Pages 16 SCHEDULE 13D CUSIP NO.: 162809 10 7 (1) NAME OF REPORTING PERSON: Carl N. Karcher S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-#### (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] (3) SEC USE ONLY (4) SOURCE OF FUNDS: PF (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 43,859 (1) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 43,859 (1) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 43,859 (1) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3) (14) TYPE OF REPORTING PERSON: IN - ------------------------- (1) Represents 43,859 shares of common stock. Does not include 438 shares of Series A Preferred Stock which is not beneficially held. (2) Based upon 51,768,480 shares of Common Stock outstanding as of October 24, 1996 as reported by the issuer in its 10-Q for the quarterly period ended September 9, 1996 and an additional 8,771,929 shares of Common Stock as announced in the Checkers press release dated February 21, 1997, describing the $20 Million Private Placement. (3) Less than 1%. Page 16 of 72 Pages 17 SCHEDULE 13D CUSIP NO.: 162809 10 7 (1) NAME OF REPORTING PERSON: C. Howard Lester S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-#### (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] (3) SEC USE ONLY (4) SOURCE OF FUNDS: PF (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 131,578 (1) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 131,578 (1) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 131,578 (1) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3) (14) TYPE OF REPORTING PERSON: IN - ------------------------- (1) Represents 131,578 shares of common stock. Does not include 1,315 shares of Series A Preferred Stock which is not beneficially held. (2) Based upon 51,768,480 shares of Common Stock outstanding as of October 24, 1996 as reported by the issuer in its 10-Q for the quarterly period ended September 9, 1996 and an additional 8,771,929 shares of Common Stock as announced in the Checkers press release dated February 21, 1997, describing the $20 Million Private Placement. (3) Less than 1%. Page 17 of 72 Pages 18 SCHEDULE 13D CUSIP NO.: 162809 10 7 (1) NAME OF REPORTING PERSON: Byron E. Allumbaugh S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-#### (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] (3) SEC USE ONLY (4) SOURCE OF FUNDS: PF (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 43,859 (1) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 43,859 (1) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 43,859 (1) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3) (14) TYPE OF REPORTING PERSON: IN - ------------------------- (1) Represents 43,859 shares of common stock. Does not include 438 shares of Series A Preferred Stock which is not beneficially held. (2) Based upon 51,768,480 shares of Common Stock outstanding as of October 24, 1996 as reported by the issuer in its 10-Q for the quarterly period ended September 9, 1996 and an additional 8,771,929 shares of Common Stock as announced in the Checkers press release dated February 21, 1997, describing the $20 Million Private Placement. (3) Less than 1%. Page 18 of 72 Pages 19 SCHEDULE 13D CUSIP NO.: 162809 10 7 (1) NAME OF REPORTING PERSON: Ernie Smith S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-#### (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] (3) SEC USE ONLY (4) SOURCE OF FUNDS: PF (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 21,929 (1) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 21,929 (1) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 21,929 (1) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3) (14) TYPE OF REPORTING PERSON: IN - ------------------------- (1) Represents 21,929 shares of common stock. Does not include 219 shares of Series A Preferred Stock which is not beneficially held. (2) Based upon 51,768,480 shares of Common Stock outstanding as of October 24, 1996 as reported by the issuer in its 10-Q for the quarterly period ended September 9, 1996 and an additional 8,771,929 shares of Common Stock as announced in the Checkers press release dated February 21, 1997, describing the $20 Million Private Placement. (3) Less than 1%. Page 19 of 72 Pages 20 SCHEDULE 13D CUSIP NO.: 162809 10 7 (1) NAME OF REPORTING PERSON: Ronald R. Maudsley S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-#### (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] (3) SEC USE ONLY (4) SOURCE OF FUNDS: PF (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 21,929 (1) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 21,929 (1) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 21,929 (1) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3) (14) TYPE OF REPORTING PERSON: IN - ------------------------- (1) Represents 21,929 shares of common stock. Does not include 219 shares of Series A Preferred Stock which is not beneficially held. (2) Based upon 51,768,480 shares of Common Stock outstanding as of October 24, 1996 as reported by the issuer in its 10-Q for the quarterly period ended September 9, 1996 and an additional 8,771,929 shares of Common Stock as announced in the Checkers press release dated February 21, 1997, describing the $20 Million Private Placement. (3) Less than 1%. Page 20 of 72 Pages 21 SCHEDULE 13D CUSIP NO.: 162809 10 7 (1) NAME OF REPORTING PERSON: Paul D. DeFalco S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-#### (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] (3) SEC USE ONLY (4) SOURCE OF FUNDS: PF (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 21,929 (1) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 21,929 (1) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 21,929 (1) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3) (14) TYPE OF REPORTING PERSON: IN - ------------------------- (1) Represents 21,929 shares of common stock. Does not include 219 shares of Series A Preferred Stock which is not beneficially held. (2) Based upon 51,768,480 shares of Common Stock outstanding as of October 24, 1996 as reported by the issuer in its 10-Q for the quarterly period ended September 9, 1996 and an additional 8,771,929 shares of Common Stock as announced in the Checkers press release dated February 21, 1997, describing the $20 Million Private Placement. (3) Less than 1%. Page 21 of 72 Pages 22 SCHEDULE 13D CUSIP NO.: 162809 10 7 (1) NAME OF REPORTING PERSON: Glen W. Cochran S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: S.S. No. ###-##-#### (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] (3) SEC USE ONLY (4) SOURCE OF FUNDS: PF (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] (6) CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: (7) SOLE VOTING POWER: 21,929 (1) (8) SHARED VOTING POWER: 0 (9) SOLE DISPOSITIVE POWER: 21,929 (1) (10) SHARED DISPOSITIVE POWER: 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 21,929 (1) (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ] (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): (2) (3) (14) TYPE OF REPORTING PERSON: IN - ------------------------- (1) Represents 21,929 shares of common stock. Does not include 219 shares of Series A Preferred Stock which is not beneficially held. (2) Based upon 51,768,480 shares of Common Stock outstanding as of October 24, 1996 as reported by the issuer in its 10-Q for the quarterly period ended September 9, 1996 and an additional 8,771,929 shares of Common Stock as announced in the Checkers press release dated February 21, 1997, describing the $20 Million Private Placement. (3) Less than 1%. Page 22 of 72 Pages 23 ITEM 1. SECURITY AND ISSUER. This Amendment Number 1 (the "Amendment") amends the Statement on Schedule 13(d) filed with the Securities and Exchange Commission (the "SEC") on January 24, 1997, relating to the Common Stock, par value $0.001 per share (the "Common Stock"), of Checkers Drive-In Restaurants, Inc., a Delaware corporation ("Checkers"), with its principal executive offices located at Barnett Bank Building, 600 Cleveland Street, Eighth Floor, Clearwater, FL 34615. Other than as set forth herein, there has been no material change in the information set forth in Schedule 13D. ITEM 2. IDENTITY AND BACKGROUND This Amendment is being filed by CKE Restaurants, Inc., a Delaware corporation ("CKE") and the following persons and entities who are parties to the Amended and Restated Credit Agreement dated as of November 22, 1996 (the "Credit Agreement") by and among Checkers, CKE, as agent, and the lenders identified therein: Fidelity National Financial, Inc., a Delaware corporation ("Fidelity"), William P. Foley, II, Carl Leo Karcher, Stephen C. Mahood, William A. Imparato, C. Thomas Thompson, Andrew F. Puzder, Carl A. Strunk and Frank P. Willey (the "Reporting Lenders") and the following persons and entities who are parties to the Purchase Agreement for Common Stock and Series A Preferred Stock dated February 19, 1997, (the "Purchase Agreement") by and among Checkers, CKE, as Agent and certain buyers including those identified herein: Patrick F. Stone, Daniel D. Lane, Danny Lane, Cary H. Thompson, Carl N. Karcher, C. Howard Lester, Byron E. Allumbaugh, Ernie Smith, Ronald R. Maudsley, Paul D. DeFalco and Glen W. Cochran (the "Reporting Buyers"). Mr. William P. Foley, II, is the Chairman of the Board and Chief Executive Officer of both Fidelity and CKE, and he owns 20.5% of the outstanding shares of common stock of Fidelity. A limited partnership whose general partner is controlled by Mr. Foley owns 14.9% of the outstanding shares of common stock of CKE, a corporation controlled by Mr. Foley owns 1.2% of the outstanding shares of common stock of CKE, and Fidelity owns 2.2% of the outstanding shares of common stock of CKE. Mr. Foley is a "controlling person" of Fidelity and CKE. (The disclosure of this information shall not be construed as an admission that Mr. Foley is the beneficial owner of any of the Common Stock beneficially owned by Fidelity or CKE either for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") or for any other purposes and such beneficial ownership is expressly disclaimed.) The Reporting Lenders and Reporting Buyers have no agreement between or among themselves to act in concert with respect to Checkers or its securities which they beneficially own; however, the lenders under the Credit Agreement and the buyers under the Purchase Agreement have acted and are expected to continue to act collectively from time to time for purposes related to the Credit Agreement and the Purchase Agreement, respectively. The filing of this statement is not to be construed as an admission by the Reporting Lenders or the Reporting Buyers that they constitute a "group" for purposes of Section 13(d) of the Exchange Act. The filing of this Statement shall not be construed as an admission that any Reporting Lender or Reporting Buyer is, for purposes of Section 13(d) or 13(g) of the Exchange Act, the beneficial owner of any shares of Common Stock which are beneficially owned by any other Reporting Lender or Reporting Buyer and covered by this Amendment. The name, business address, present principal occupation or employment and the name, principal business and address of the corporation or other organization in which such employment is conducted are set forth below for each of the Reporting Buyers (not previously reported as Reporting Lenders) who is a natural person:
NAME BUSINESS ADDRESS PRESENT PRINCIPAL OCCUPATION ---- ---------------- ---------------------------- Patrick F. Stone 3938 State Street Executive Vice President of Second Floor Fidelity National Title Insurance Company Santa Barbara, California 93105 ("FNTIC") Daniel D. Lane 14 Corporate Plaza Chairman Lane/Kuhn Pacific, Newport Beach, California 92660 Director CKE and Fidelity Danny Lane 14 Corporate Plaza Assistant General Manager for Newport Beach, California 92660 Golf Course Management Company
Page 23 of 72 Pages 24 Cary H. Thompson 3731 Wilshire Boulevard Chief Operations Officer 10th Floor Aames Financial Corporation, Los Angeles, California 90010 Director Fidelity Carl N. Karcher 1200 North Harbor Boulevard Chairman Emeritus, CKE Anaheim, California 92803 C. Howard Lester 3250 Van Ness Chairman and Chief Executive Officer San Francisco, California 94109 of Williams-Sonoma, Inc.; Director CKE Byron E. Allumbaugh 33 Ridgeline Drive Retired Chairman of Ralphs Grocery Newport Beach, California 92660 Company Ernie Smith 3938 State Street Executive Vice President and Second Floor Regional Manager for FNTIC Santa Barbara, California 93105 Ronald R. Maudsley 3938 State Street Executive Vice President and Second Floor Regional Manager for FNTIC Santa Barbara, California 93105 Paul D. DeFalco 3938 State Street Executive Vice President and Second Floor Regional Manager for FNTIC Santa Barbara, California 93105 Glen W. Cochran 15770 North Dallas Parkway Executive Vice President #1200 Lock Box 21 Regional Manager for Dallas, Texas 75248 for FNTIC
Each Reporting Buyer who is a natural person is a citizen of the United States. During the last five years, none of the Reporting Buyers who is a natural person has been (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. On December 17, 1996, the Board of Directors of Checkers adopted resolutions approving an investment of up to $20,000,000 in cash by one or more of the Reporting Lenders and others to be determined, in exchange for shares of common stock and preferred stock to be determined based on a purchase price not to exceed $1.34 (the closing price of the Common Stock, as reported on the NASDAQ National Market, on December 16, 1996), less appropriate discounts for restricted shares. On January 17, 1997, the board appointed a special committee to oversee the transaction and hired Raymond James and Associates, Inc. to give a fairness opinion. CKE's Board of Directors adopted resolutions approving the additional investment on December 18, 1996. The obligation to file this Amendment was triggered by the purchase by the Reporting Buyers and others, on February 19, 1997, under Purchase Agreements of newly issued shares of Checkers' Common Stock, par value $0.001 priced at $1.14 per share, and Series A Preferred Stock, valued at $114 per share (the "Series A Stock"), having the rights, preferences, privileges and restrictions set forth in the Checker's Certificate of Designation of Rights, Privileges and Preferences. According to the terms of the transaction, the Series A Stock will be converted into common stock upon the approval of the shareholders at the next shareholders' meeting. In the event that the shareholders do not approve such conversion provisions of the Series A Stock, the Series A Stock has a dividend rate of 14.5% which will be payable quarterly six (6) months after issuance of the Series A Stock if not converted before June 30, 1997. Page 24 of 72 Pages 25 ITEM 4. PURPOSE OF TRANSACTION Other than as described in the Schedule 13(d), the Reporting Lenders and Reporting Buyers have no present plans or proposals which relate to or would result in: (I) the acquisition by any person of additional securities of Checkers, or the disposition of securities of the Company; (ii) an extraordinary corporate transaction, such as a merger, reorganization, or liquidation, involving the Company or any of its subsidiaries; (iii) a sale or transfer of a material amount of assets of the Company or any of its subsidiaries; (iv) any change in the present Board of Directors or management of the Company, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the Board; (v) any material change in the present capitalization or dividend policy of the Company; (vi) any other material change in the Company's business or corporate structure; (vii) changes in the Company's charter, by-laws, or other instruments corresponding thereto or other actions which may impede the acquisition of control of the Company by any person; (viii) causing a class of securities of the Company to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (ix) a class of equity securities of the Company becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act; or (x) any action similar to any of those enumerated above. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) This information is hereby incorporated by reference as described in points 7-13 of the cover page for each Reporting Lender and Reporting Buyer. (b) Each Reporting Lender and Reporting Buyer will have the sole power to vote direct the voting of, dispose of and direct the disposition of any Common Stock when acquired by it. (c) None of the Reporting Lenders or Reporting Buyers has effected any transactions between February 19, 1997 and March 4, 1997. (d) Not applicable. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Each Reporting Buyer is a party to the Purchase Agreement, a copy of which is filed as an Exhibit hereto and is incorporated herein by reference. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. 99.01 The form of Purchase Agreement dated as of February 19, 1997, which Purchase Agreement was executed among Checkers Drive-In Restaurants, Inc., and each of the Buyers, including the Reporting Buyers. 99.02 Designation of Rights Agreement dated February 19, 1997. 99.03 Joint Filing Agreement among CKE, Fidelity, William P. Foley, II, Carl Leo Karcher, Stephen C. Mahood, William A. Imparato, C. Thomas Thompson, Andrew F. Puzder, Carl A. Strunk and Frank P. Willey, Patrick F. Stone, Daniel D. Lane, Danny Lane, Cary H. Thompson, Carl N. Karcher, C. Howard Lester, Byron E. Allumbaugh, Ernie Smith, Ronald R. Maudsley, Paul D. DeFalco and Glen W. Cochran . 99.04 Power of Attorney for William P. Foley, II, Carl Leo Karcher, Stephen C. Mahood, William A. Imparato, C. Thomas Thompson, Andrew F. Puzder, Carl A. Strunk and Frank P. Willey, Patrick F. Stone, Daniel D. Lane, Danny Lane, Cary H. Thompson, Carl N. Karcher, C. Howard Lester, Byron E. Allumbaugh, Ernie Smith, Ronald R. Maudsley, Paul D. DeFalco and Glen W. Cochran. 99.05 The Press Release issued by Checkers dated February 21, 1997. Page 25 of 72 Pages 26 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. March 5, 1997 CKE RESTAURANTS, INC. By: /s/ Robert A. Wilson --------------------------------------- Robert A. Wilson Secretary Page 26 of 72 Pages 27 EXHIBIT INDEX 99.01 The form of Purchase Agreement dated as of February 19, 1997, which Purchase Agreement was executed among Checkers Drive-In Restaurants, Inc. and each of the Buyers, including the Reporting Buyers. Page 28 99.02 Designation of Rights Agreement dated February 19, 1997. Page 53 99.03 Joint Filing Agreement among CKE, Fidelity, William P. Foley, II, Carl Leo Karcher, Stephen C. Mahood, William A. Imparato, C. Thomas Thompson, Andrew F. Puzder, Carl A. Strunk, Frank P. Willey, Patrick F. Stone, Daniel D. Lane, Danny Lane, Cary H. Thompson, Carl N. Karcher, C. Howard Lester, Byron E. Allumbaugh, Ernie Smith, Ronald R. Maudsley, Paul D. DeFalco and Glen W. Cochran. Page 63 99.04 Power of Attorney for William P. Foley, II, Carl Leo Karcher, Stephen C. Mahood, William A. Imparato, C. Thomas Thompson, Andrew F. Puzder, Carl A. Strunk, Frank P. Willey, Patrick F. Stone, Daniel D. Lane, Danny Lane, Cary H. Thompson, Carl N. Karcher, C. Howard Lester, Byron E. Allumbaugh, Ernie Smith, Ronald R. Maudsley, Paul D. DeFalco and Glen W. Cochran. Page 68 99.05 The Press Release issued by Checkers dated February 21, 1997. Page 71
Page 27 of 72 Pages EX-99.01 2 FORM OF PURCHASE AGREEMENT 1 EXHIBIT 99.01 Form of Purchase Agreement dated as of February 19, 1997 Page 28 of 72 Pages 2 PURCHASE AGREEMENT THIS PURCHASE AGREEMENT, dated as of February 19, 1997, is made by and between CHECKERS DRIVE-IN RESTAURANTS, INC., a Delaware corporation (the "Company"), and the Buyer named on Exhibit A attached hereto ("Buyer"), with reference to the following facts: RECITALS A. The Company, specified Lenders (including Buyer) and CKE RESTAURANTS, INC., a Delaware corporation, as Agent (the "Agent"), have heretofore entered into that certain Amended and Restated Credit Agreement dated as of November 22, 1996 (the "Credit Agreement"), which provided for restructuring of certain loans made to the Company and other transactions specified therein. B. Pursuant to the Credit Agreement, the Company issued Warrants to Purchase Common Stock to Lenders and agreed to register a rights offering (the "Rights Offering") pursuant to which all holders of the Company's Common Stock and Warrants would receive rights to purchase additional Common Stock of the Company at a specified purchase price. C. Lenders and the Agent desire and intend to waive the Company's obligation to register the Rights Offering and to substitute in lieu thereof a right of specified Lenders (including Buyer) (collectively, "Purchasers") to purchase newly issued shares of the Company's Common Stock, par value $0.001 (the "Common Stock), and Series A Preferred Stock, par value $0.001 per share (the "Series A Stock"), having the rights, preferences, privileges and restrictions set forth in the Company's Certificate of Designation of Rights, Privileges and Preferences, substantially in the form attached hereto as Exhibit B (the "Certificate") and incorporated herein by reference. The Common Stock and the Series A Stock are referred to collectively herein as the "Stock." D. At a meeting held on December 17, 1996, the Board of Directors of the Company approved acceptance of an offer from the Agent with respect to the transaction, subject to the conditions that (i) the purchase price for the Common Stock be no less than the closing sales price of the Company's Common Stock on December 16, 1996, as reported on the NASDAQ National Market ($1.34 per share), discounted to reflect that the Common Stock will be "restricted shares" within the meaning of the Securities Act of 1933, as amended (the "Securities Act"), (ii) the transaction be approved by a committee of the Board of Directors of the Company, comprised of disinterested directors (the "Special Committee"), (iii) the Special Committee receives a fairness opinion with respect to the transaction from a nationally recognized investment banking firm, (iv) the transaction complies with all applicable laws, rules and regulations, including those governing securities transactions, and (v) the Purchasers and the Special Committee negotiate and approve definitive documentation relating to the transaction. Page 29 of 72 Pages 3 E. The Company believes that waiver of the obligation to conduct the Rights Offering, sale of the Stock to be purchased hereunder to Purchasers and consummation of the other transactions described herein are in the best interests of the Company. AGREEMENT NOW, THEREFORE, the parties agree as follows: 1. Purchase and Sale. 1.1 Purchase and Sale. Subject to the provisions of this Agreement, on the Closing Date (as defined herein) the Company will sell to Buyer, and Buyer will purchase from the Company the number of shares of Common Stock (at a purchase price of $1.14 per share) and the number of shares of Series A Stock (at a purchase price of $114.00 per share) specified on Exhibit A attached hereto (collectively, the "Shares"). 1.2 Payment of Purchase Price. The Purchase Price shall be paid by Buyer to the Company on the Closing Date (as defined herein) by wire transfer of immediately available funds in accordance with the wire instructions set forth on Exhibit C attached hereto. 2. Closing of Purchase and Sale. 2.1 Closing; Closing Date. The purchase and sale of the Shares pursuant to Section 1 (the "Closing") shall take place at the offices of Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP, 2121 Avenue of the Stars, 18th Floor, Los Angeles, CA 90067, or at such other place as may be agreed upon by the Company and Buyer, at 10:00 a.m. Pacific time on February 21, 1997 or at such other time as may be agreed upon by both the Company and Buyer (the "Closing Date"). 2.2 Transactions at Closing. At the Closing, (a) The Company shall deliver to Buyer: (i) An opinion of Shumaker, Loop & Kendrick, LLP, substantially in the form of Exhibit D hereto; (ii) A duly executed Compliance Certificate, substantially in the form of Exhibit E hereto; (iii) Certificates representing the Shares being purchased hereunder and delivered pursuant to Section 1.1 hereof; (iv) Evidence of filing of the Certificate of Designation with the Delaware Secretary of State; 2 Page 30 of 72 Pages 4 (v) Evidence that the Notification of Listing of Additional Shares with respect to the Common Stock to be purchased pursuant hereto has been received by the NASDAQ National Market; and (vi) Such other documents and instruments as Buyer may reasonably request relating to the existence, status and capacity of the Company and the corporate authority for, and the validity, force and effect of this Agreement. (b) Buyer shall deliver to the Company: (i) a wire transfer of immediately available funds in the amount of the purchase price specified on Exhibit A attached hereto; (ii) evidence that waiver of the Rights Offering has been approved by the Required Lenders (as defined in the Credit Agreement); and (iii) evidence that the Required Lenders have approved the execution, delivery and performance of this Agreement by the Company. (c) The other conditions set forth in Sections 6 and 7 hereof shall have been satisfied. 3. Representations and Warranties of the Company. The Company represents and warrants that: 3.1 Organization, Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has full corporate power and authority to own, lease and operate its property and assets and to conduct its business as presently and proposed to be conducted by it. The Company has all requisite corporate power and authority to enter into and perform its obligations under this Agreement and to carry out the transactions contemplated by this Agreement. 3.2 Credit Agreement Representations and Warranties. Except as set forth on Schedule 3.2 hereto, the representations and warranties of the Company set forth in the Credit Agreement are true and correct on and as of the date hereof as if made on such date. 3.3 Capitalization. (a) Authorized Capital Stock. Immediately prior to the Closing, the authorized capital stock of the Company will consist of: (i) Common Stock. 100,000,000 shares of Common Stock, par value $0.001 per share (the "Common Stock"), of which (i) 51,768,480 shares are issued and outstanding as of the date of this Agreement; (ii) 29,300,000 shares are initially reserved for issuance upon exercise of the warrants and options listed in Schedule 3.3 hereof; and (iii) 209,524 shares are initially reserved for issuance pursuant to certain contracts to issue Common Stock, as listed in Schedule 3.3 hereto. The Company has a sufficient number of shares of unissued and 3 Page 31 of 72 Pages 5 unreserved Common Stock to enable it to issue the Common Stock being sold pursuant hereto, and, upon approval of the Company's stockholders of the proposal referred to in Section 8.1 hereof, the Company will have a sufficient number of shares of unissued and unreserved Common Stock to enable it to issue the Common Stock issuable upon conversion of the Series A Stock to be purchased by Buyer and the other Purchasers on the Closing Date. (ii) Preferred Stock. 2,000,000 shares of Preferred Stock, $0.001 par value per share (the "Preferred Stock"), of which 87,719 shares have been designated as Series A Stock and none of which will be issued and outstanding prior to the Closing Date. (b) Warrants, Options and Other Subscription Rights. Except as set forth in Schedule 3.3 hereto and as contemplated herein, there are (i) no outstanding warrants, options, convertible securities or rights to subscribe for or purchase any capital stock or other securities from the Company, (ii) to the best knowledge of the Company, no voting trusts or voting agreements among, or irrevocable proxies executed by, shareholders of the Company, (iii) no existing rights of stockholders to require the Company to register any securities of the Company or to participate with the Company in any registration by the Company of its securities, (iv) to the best knowledge of the Company, no agreements among stockholders providing for the purchase or sale of the Company's capital stock and (v) no obligations (contingent or otherwise) of the Company to purchase, redeem or otherwise acquire any shares of its capital stock or any interest therein or to pay any dividend or make any other distribution in respect thereof. (c) Validity of Securities. All outstanding securities of the Company are duly authorized and validly issued in accordance with applicable law (including federal and state securities laws), fully paid and non-assessable. Subject only to approval by the Company's stockholders of the matters set forth in Section 8.1 hereof, the Shares, when issued, sold and delivered in accordance with the terms of this Agreement, and the Common Stock issuable upon conversion of the Series A Stock, when issued and delivered in accordance with the Certificate of Designation, will be duly authorized, validly issued, fully paid and non-assessable, and will be free and clear of all liens and restrictions, other than liens resulting from the actions of Buyer and restrictions on transfer imposed by the Securities Act, applicable state securities laws or this Agreement. Subject only to approval by the Company's shareholders of the matters set forth in Section 8.1 hereof, the Series A Stock, when issued, sold and delivered in accordance with the terms of this Agreement, will have the rights, preferences and privileges specified in the Certificate of Designation. Holders of shares of the Company's capital stock have no preemptive rights. 3.4 Authorization; Enforceability. Except as set forth in Schedule 3.4 hereto, all corporate action on the part of the Company necessary for the authorization, execution, delivery, and performance of all its obligations under this Agreement, including the authorization, issuance, and delivery of the Shares being sold under this Agreement and of the Common Stock issuable upon conversion of the Series A Stock has been taken. This Agreement, when executed and delivered by or on behalf of the Company, shall constitute 4 Page 32 of 72 Pages 6 the valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except as the enforcement hereof may be limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors' rights generally. 3.5 Private Offering. Neither the Company nor anyone acting on its behalf, other than the persons set forth on Schedule 3.5 hereto, has offered any of the Shares for sale to, or solicited offers to buy any securities of the Company from, or otherwise approached or negotiated with respect thereto with any prospective purchaser other than Buyer and the other Lenders under the Credit Agreement. The Company agrees that neither the Company nor anyone acting on its behalf, other than the persons set forth on Schedule 3.5 hereto, has offered or will offer the Shares or any part thereof or any similar securities for issuance or sale to, or solicit any offer to acquire any of the same from, anyone so as to make the issuance and sale hereunder of the Shares not exempt from the registration requirements of Section 5 of the Securities Act. None of the shares of the Company's capital stock issued without registration under the Securities Act prior to the date hereof and presently outstanding has been offered or sold in such a manner as to make the issuance and sale of such shares not exempt from such registration requirements, and all such shares of capital stock have been offered and sold in compliance with all applicable federal and state securities laws. 3.6 Filing of SEC Reports. The Company has filed with the Securities and Exchange Commission (the "Commission") all reports (the "SEC Reports") required under the Securities Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder. As of their respective dates, the SEC Reports did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein not misleading. 3.7 Consents and Approvals. Except as set forth on Schedule 3.7 hereto and for consents that will obtained prior to Closing, the execution and delivery by the Company of this Agreement and the related documents and instruments, the offer, issuance and delivery of the Shares, and the performance by the Company of its obligations under this Agreement and the related documents and instruments do not require the consent of any person or entity under any material agreement to which the Company is a party or otherwise binding on the Company. 3.8 No Conflict with Documents and Instruments. Except as set forth on Schedule 3.8 hereto, the execution and delivery by the Company of this Agreement and any related documents and instruments, the offer, issuance and delivery of the Shares, and the performance by the Company of its obligations under this Agreement and the related documents and instruments do not contravene or constitute a default under (a) the charter or by-laws of the Company, (b) any applicable law or regulation or (c) any agreement, judgment, injunction, order, decree or other instrument to which the Company is a party or by which the Company and its assets are otherwise bound. 3.9 Full Disclosure. Neither this Agreement, nor any certificates 5 Page 33 of 72 Pages 7 delivered in connection herewith contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements herein or therein not misleading, in view of the circumstances in which they were made. 3.10 Brokers and Finders. Except for certain fees payable to Raymond James & Associates under that certain letter agreement dated February 4, 1997 with the Company and that certain letter agreement dated January 28, 1997 with the Company, no person or entity has or will have any valid claim against the Company or any Purchaser as a result of the transactions contemplated herein for any commission, fee or other compensation as a broker or finder or in any similar capacity. 4. Representations, Warranties and Covenants of Buyer. Buyer represents and warrants that: 4.1 Authorization. Buyer has full [corporate] power and authority to enter into and to perform this Agreement in accordance with its terms. This Agreement has been duly executed and delivered by it and constitutes the valid and legally binding obligation of Buyer, except as the enforcement hereof may be limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors' rights generally. 4.2 Investment Representations. Buyer is acquiring the Shares for its own account, for investment purposes and not with a view to, or for sale in connection with, any distribution of the Shares in violation of the Securities Act, or any applicable state securities law. 4.3 Investment Experience; Access to Information. Buyer (a) is an "accredited investor," as that term is defined in Rule 501(a) promulgated under the Securities Act, (b) is an investor experienced in the evaluation of businesses similar to the Company, (c) is able to fend for itself in the transactions contemplated by this Agreement, (d) has such knowledge and experience in financial, business and investment matters as to be capable of evaluating the merits and risks of this investment, (e) has the ability to bear the economic risks of this investment, (f) was not organized or reorganized for the specific purpose of acquiring the Shares purchased by it, and (g) has been afforded prior to the Closing Date the opportunity to ask questions of, and to receive answers from, the Company and to obtain any additional information, to the extent the Company has such information or could have acquired it without unreasonable effort or expense, all as necessary for Buyer to make an informed investment decision with respect to the purchase of the Shares. 4.4 Absence of Registration. Buyer acknowledges and agrees that: (a) The Shares to be issued and sold hereunder are unregistered and may be required to be held indefinitely unless they are subsequently registered under the Securities Act, or an exemption from such registration is available. Except as provided in Section 9 hereof, the Company is under no obligation to file a registration statement with the Commission with respect to the Shares. 6 Page 34 of 72 Pages 8 4.5 Restrictions on Transfer. (a) Buyer will not offer, sell, pledge, hypothecate, or otherwise dispose of the Shares unless such offer, sale, pledge, hypothecation or other disposition (i) is registered under the Securities Act or (ii) does not violate the Securities Act or any applicable state securities laws. (b) The certificates representing the Shares shall bear a legend stating in substance: THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND LAWS OR, IN THE OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION DOES NOT VIOLATE THE PROVISIONS THEREOF. Upon request of a holder of the Shares, the Company shall remove the legend set forth above from the certificates evidencing such Shares, or issue to such holder new certificates therefor free of such legend, if with such request the Company shall have received an opinion of counsel selected by the holder and reasonably satisfactory to the Company, in form and substance reasonably satisfactory to the Company, to the effect that such Shares are not required by the Securities Act to continue to bear the legend. 4.6 Transfer Instructions. Buyer agrees that the Company may provide for appropriate transfer instructions to implement the provisions of Section 4.5 hereof. 4.7 Economic Risk. Buyer understands that it must bear the economic risk of the investment represented by the purchase of Shares for an indefinite period. 5. Pre-Closing Covenants. Each of the parties hereby covenants and agrees that it will take all action reasonably within its power and authority to duly and timely carry out all of its obligations hereunder, to perform and comply with all of the covenants, agreements, representations and warranties hereunder applicable to it and to cause all conditions to the obligations of the other parties to close the purchase and sale of the Shares pursuant hereto to be satisfied as promptly as possible. 6. Conditions to Closing of Buyer. The obligation of Buyer on the Closing Date to purchase the Shares under this Agreement shall be subject to each of the following conditions precedent, any one or more of which may be waived by Buyer: 7 Page 35 of 72 Pages 9 6.1 Fairness Opinion. The Special Committee shall have received a fairness opinion from Raymond James & Associates, satisfactory in form and substance to the Special Committee, to the effect that the transactions provided for herein and in the agreements of even date herewith with the other Purchasers are fair to the stockholders of the Company, from a financial point of view (the "Fairness Opinion"). 6.2 Representations and Warranties. The representations and warranties made by the Company herein and, except as provided in Schedule 3.2, in the Credit Agreement shall be true and accurate on and as of the Closing Date as if made on such Closing Date. 6.3 Performance. The Company shall have performed and complied with all agreements and conditions contained herein or in other ancillary documents incident to the transactions contemplated by this Agreement required to be performed or complied with by it prior to or at the Closing. 6.4 Consents, Etc. The Company shall have secured all permits, consents and authorizations that shall be necessary or required lawfully to consummate this Agreement and to issue the Shares to be purchased by Buyer at the Closing, and the Certificate of Designation shall have been duly filed with the Secretary of State of the State of Delaware. 6.5 Minimum Sale. Concurrently with the Closing hereof, the Company shall close agreements with Purchasers, in substantially the form of this Agreement, to purchase an aggregate of $19,999,965.06 in Shares, including an aggregate of 8,771,929 shares of Common Stock at $1.14 per share and 87,719 shares of Series A Stock at $114.00 per share. 6.6 Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated by this Agreement and all documents and instruments incident to such transactions shall be reasonably satisfactory in substance and form to Buyer and its counsel, and Buyer and its counsel shall have received all such counterpart originals or certified or other copies of such documents as Buyer or its counsel may reasonably request. 7. Conditions to Closing of Company. The obligation of the Company on the Closing Date to issue and sell the Shares to be purchased under this Agreement shall be subject each of the following conditions precedent, any one or more of which may be waived by the Company: 7.1 Fairness Opinion. The Special Committee shall have received the Fairness Opinion, satisfactory in form and substance to it. 7.2 Representations and Warranties. The representations and warranties made by Buyer herein being true and accurate on and as of the Closing Date as if made on such Closing Date. 8 Page 36 of 72 Pages 10 7.3 Performance. Buyer shall have performed and complied with all agreements and conditions contained herein or in other ancillary documents incident to the transactions contemplated by this Agreement required to be performed or complied with by it prior to or at the Closing. 7.4 Minimum Sale. Concurrently with the Closing hereof, the Company shall close agreements with Purchasers, in substantially the form of this Agreement, to purchase an aggregate of $19,999,965.06 in Shares, including an aggregate of 8,771,929 shares of Common Stock at $1.14 per share and 87,719 shares of Series A Stock at $114.00 per share. 7.5 Required Lenders' Approval and Waiver. The Company shall have received approval of the execution, delivery and performance of this Agreement from the Required Lenders and a waiver from the Required Lenders of the requirements of Section 2.03(d) and Section 5.03 of the Credit Agreement, in the form of Exhibit F hereto. 7.6 Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated by this Agreement and all documents and instruments incident to such transactions shall be reasonably satisfactory in substance and form to the Company and its counsel, and the Company and its counsel shall have received all such counterpart originals or certified or other copies of such documents as Buyer or its counsel may reasonably request. 8. Post Closing Covenants. 8.1 Proxy Statement. As soon as practicable after Closing hereof and in any event no later than at its next annual stockholders meeting, the Company shall include a proposal in its proxy statement to (i) amend its Certificate of Incorporation either (a) to reduce the number of outstanding shares through a reverse stock split so as to ensure that a sufficient number of shares of Common Stock are available for conversion of all of the Series A Stock, or (b) to authorize a sufficient number of additional shares of Common Stock so as to provide for conversion of all of the Series A Stock and (ii) approve conversion of the Series A Stock to Common Stock in accordance with the terms of the Certificate. The date of the stockholder approval of such proposal is referred to as the "Approval Date." 8.2 Reservation of Common Stock. From and after the Approval Date, the Company shall continuously maintain in reserve a number of shares of Common Stock equal to the Common Stock issuable upon conversion of the Series A Preferred Stock. 9. Registration Rights. The following provisions govern the registration of the Company's Common Stock being purchased hereunder and Common Stock issuable upon conversion of the Series A Stock being purchased hereunder: 9 Page 37 of 72 Pages 11 9.1 Definitions. As used herein, the following terms have the following meanings: Forms S-1, S-2 and S-3: The forms so designated, promulgated by the Commission for registration of securities under the Securities Act, and any forms succeeding to the functions of such forms, whether or not bearing the same designation. Holder: A holder of Registrable Securities, provided that anyone who acquires any Registrable Securities in a distribution pursuant to a registration statement filed by the Company under the Securities Act shall not thereby be deemed to be a "Holder." "Register," "registered" and "registration": A registration effected by filing a registration statement in compliance with the Securities Act and the declaration or ordering by the Commission of effectiveness of such registration statement. Registrable Securities: All shares of Common Stock sold hereunder or issuable upon conversion of the Series A Stock and held by Buyer or by a person to whom registration rights have been transferred pursuant to the provisions of this Section 9; and all shares of Common Stock issued by the Company in respect of such shares. Required Demand Amount: The number of Registrable Securities equal to the lesser of (i) 1% of the total number of shares of Common Stock then outstanding and (ii) $2,000,000 divided by the average per share closing price of the Common Stock for the five trading days prior to the date of the calculation of the Required Demand Amount. 9.2 Shelf Registration. (a) Filing; Effectiveness. If, at any time after the one-year anniversary of the Closing Date, the Company receives a written demand from the Holders of the Required Demand Amount of the Registrable Securities, the Company shall prepare and file with the Commission a "shelf" registration statement (the "Shelf Registration Statement") on the appropriate form for an offering to be made on a continuous or extended basis pursuant to Rule 415 under the Securities Act (or such successor rule or similar provision then in effect) covering all of the Registrable Securities. The Company shall use its commercially reasonable efforts to have the shelf registration filed within 60 days after the demand is made (the "Target Filing Date") and to have the Shelf Registration Statement declared effective within 60 days after the filing is made (the "Target Effective Date") and to keep such Shelf Registration continuously effective for the period beginning on such date and ending on the earlier of (i) the date on which the Holders no longer hold any Registrable Securities and (ii) the first date on which all of the Holders would be entitled to transfer Shares pursuant to Rule 144(k) under the Securities Act. 10 Page 38 of 72 Pages 12 (b) Effective Registration. A registration will not be deemed to have been effective as a Shelf Registration Statement unless a Shelf Registration Statement with respect thereto has been declared effective by the Commission and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the Commission or any other governmental agency or court, such Shelf Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Shelf Registration Statement may legally resume. If a registration requested pursuant to this Section 9.2 is deemed not to have been effected, then the Company shall continue to be obligated to effect a registration pursuant to this Section 9.2. (c) Form Used for Registration. In the event that Form S-3 is not available for use by the Company for a Shelf Registration Statement pursuant to this Section 9.2, the Company shall prepare and file a Shelf Registration Statement on such form as shall be available for use by the Company at the time the Company is obliged to prepare and file a registration statement hereunder. If the event that Form S-3 thereafter becomes available for use by the Company, the Company may prepare and file such Form S-3 in order to comply with its obligations hereunder. 9.3 Demand Registration. (a) Request for Registration. Subject to Section 9.7 hereof, from time to time after the Shelf Registration Statement ceases to be effective, or at any time after the first anniversary of the Closing Date if the Holders elect to use the form of an underwritten offering, the Holders of the Required Demand Amount of the Registrable Securities may make written demand that the Company file a registration statement under the Securities Act with the Commission to register such number of shares of Registrable Securities as each such Holder may request (which request shall specify the number of Registrable Securities intended to be disposed of by such Holder and the intended method of distribution thereof (a "Demand Registration Statement"). Within 10 days after receipt of such request, the Company shall give written notice of such registration request to all other Holders and thereupon the Company shall effect the filing of such Demand Registration Statement and shall include therein all Registrable Securities with respect to which the Company has received written requests for inclusion therein (which request shall specify the number of Registrable Securities intended to be disposed of by such Holder and the intended method of distribution thereof) within 15 business days after the receipt by the applicable Holders of the notice from the Company of a request for Demand Registration Statement. The Company shall use commercially reasonable efforts to have the Demand Registration Statement declared effective on or before the date which is 90 days after receipt by the Company of the applicable request for filing of a Demand Registration Statement (a "Demand Registration Filing Date"). (b) Effective Registration. The Company's obligations with respect to a Demand Registration Statement will not be deemed to have been satisfied unless 11 Page 39 of 72 Pages 13 the applicable Demand Registration Statement has been declared effective by the Commission and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if after it has been declared effective, the offering of Registrable Securities pursuant to a Demand Registration Statement is interfered with by any stop order, injunction or other order or requirement of the Commission or any other governmental agency or court, such Demand Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Demand Registration Statement may legally resume. If a registration requested pursuant to this Section 9.3 is deemed not to have been effected, then the Company shall continue to be obligated to effect a registration pursuant to this Section 9.3. (c) Selection of Underwriter. If the Holders elect to conduct an offering pursuant to a Demand Registration Statement in the form of an underwritten offering, a majority in interest of the requesting the Holders participating in such Demand Registration Statement shall have the right to designate and to select one or more nationally recognized firms of investment bankers reasonably acceptable to the Company to act as the book-running managing underwriter or underwriters in connection with such offering and shall select any additional investment bankers and managers reasonably acceptable to the Company to be used in connection with the offering. 9.4 Piggy-Back Registration. (a) Request for Registration. At any time from and after the Closing Date, each time the Company proposes to file a registration statement under the Securities Act with respect to an offering by the Company for its own account or for the account of its security holders of any class of equity security (other than (A) a registration statement on Form S-4 or S-8 (or any substitute form that is adopted by the Commission) or (B) a registration statement filed in connection with an exchange offer or offering of securities solely to the Company's existing security holders), the Company shall give written notice of such proposed filing to the Holders of Registrable Securities as soon as practicable (but in no event less than ten business days before the anticipated filing date), and such notice shall offer such Holders the opportunity to register such number of shares of Registrable Securities as each such Holder may request (which request shall specify the Registrable Securities intended to be disposed of by such Holder and the intended method of distribution thereof) (a "Piggy-Back Registration"). The Company shall use reasonable efforts to cause the managing underwriter or underwriters of a proposed underwritten offering to permit the Registrable Securities requested to be included in a Piggy-Back Registration to be included on the same terms and conditions as any other similar securities of the Company or any other security holder included therein and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method of distribution thereof. Any Holder shall have the right to withdraw its request for inclusion of its Registrable Securities in any registration statement pursuant to this Section 9.4(a) by giving written notice to the Company of such withdrawal. The Company may withdraw a Piggy-Back Registration at any time prior to the time it becomes effective, provided that the Company shall give immediate notice of such withdrawal to the Holders of Registrable 12 Page 40 of 72 Pages 14 Securities requested to be included in such Piggy-Back Registration. (b) Reduction of Offering. In connection with an underwritten offering where Piggy-Back Registration has been requested as provided in Section 9.4(a), the Company shall use commercially reasonable efforts to cause all Registrable Securities requested to be included in such Piggy-Back Registration to be included as provided in Section 9.4(a). If the managing underwriter or underwriters of any such underwritten offering have given written notice to the Holders of Registrable Securities requesting inclusion in such offering that it is their opinion that the total number of shares which the Company, Holders of Registrable Securities and any other Persons participating in such registration intend to include in such offering is such as to materially and adversely affect the success of such offering, then (i) the number of shares to be offered for the account of all other Persons (other than the Lenders under the Credit Agreement and the Holders) participating in such registration other than pursuant to demand registration rights shall be reduced or limited (to zero if necessary) pro rata in proportion to the respective number of shares requested to be registered by such Persons to the extent necessary to reduce the total number of shares requested to be included in such offering to the number of shares, if any, recommended by the managing underwriter or underwriters and (ii) if such managing underwriter or underwriters recommend a further reduction in the number of shares in the offering, then the number of shares to be offered for the account of the Holders shall be reduced or limited (to zero if necessary) pro rata in proportion to the respective number of shares requested to be registered by such Holders to the extent necessary to reduce the total number of shares requested to be include in such offering to the number of shares, if any, recommended by such managing underwriter or underwriters. (c) In the case of any registration initiated by the Company, the Company shall have the right to designate the managing underwriter in any underwritten offering. 9.5 Registration Procedures. (a) In connection with the obligations of the Company to effect or cause the registration of any Registrable Securities pursuant to the terms and conditions of this Agreement, the Company shall use its best efforts to effect the registration and sale of such Registrable Securities in accordance with the intended method of distribution, and in connection therewith, the Company will: (i) prepare and file with the Commission a registration statement with respect to such shares and use commercially reasonable efforts to cause such registration statement to become and remain effective as provided herein; (ii) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and current and to comply with the provisions of the Securities Act with 13 Page 41 of 72 Pages 15 respect to the disposition of all shares covered by such registration statement, including such amendments and supplements as may be necessary to reflect the intended method of disposition from time to time of the prospective seller or sellers of such shares; (iii) furnish to each prospective seller such number of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents, as such seller may reasonably request in order to facilitate the public sale or other disposition of the shares owned by such seller; (iv) use commercially reasonable efforts to register or qualify the shares covered by such registration statement under such other securities or blue sky or other applicable laws of such jurisdiction within the United States as each prospective seller shall reasonably request, to enable such seller to consummate the public sale or other disposition in such jurisdictions of the shares owned by such seller; provided, however, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not at the time so qualified or to take any action which would subject it to service of process in suits other than those arising out of the offer or sale of the Registrable Securities covered by such registration statement in any jurisdiction where it is not at the time so subject; (v) furnish to each prospective seller a signed counterpart, addressed to the prospective sellers, of an opinion of counsel for the Company, dated the effective date of the registration statement, covering substantially the same matters with respect to the registration statement (and the prospectus included therein) as are customarily covered (at the time of such registration) in opinions of issuer's counsel delivered to the underwriters in underwritten public offerings of securities; (vi) in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering; each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement; (vii) notify each Holder of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act or the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; (viii) apply for listing and use its best efforts to list the Registrable Securities being registered on any national securities exchange on which 14 Page 42 of 72 Pages 16 a class of the Company's equity securities are listed or, if the Company does not have a class of equity securities listed on a national securities exchange, apply for qualification and use its best efforts to qualify the Registrable Securities being registered for inclusion on the automated quotation system of the National Association of Securities Dealers, Inc. or on a national securities exchange; and (ix) Provide a transfer agent and registrar for all Registrable Securities registered hereunder and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration. (b) Upon receipt of a notice (a "Suspension Notice") from the Company of the happening of any event of the kind described in Section 9.5(a)(vii) hereof, each Holder shall forthwith discontinue disposition of the Registrable Securities until such Holder's receipt of copies of a supplemented or amended Prospectus or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such Holder will or will request the managing underwriter or underwriters, if any, to deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Holder's possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice. In the event that the Company shall give any Suspension Notice, (A) the Company shall use commercially reasonable efforts and take such actions as are reasonably necessary to render the Advice and to end the Suspension Period as promptly as practicable and (B) with respect to a Shelf Registration pursuant to Section 9.2 hereof, the time periods for which the Shelf Registration Statement is required to be kept effective pursuant to Section 9.2 hereof shall be extended by the number of days of the Suspension Period unless (x) such extension would result in the Company's inability to use the financial statements in the registration statement initially filed pursuant to the Holder or Holders' request and (y) such correction or update did not result from the Company's acts or failures to act. 9.6 Information by Holder. (a) Each Holder of Registrable Securities and each underwriter designated by a majority in interest of the requesting Holders, will furnish to the Company such information as the Company may reasonably require from such seller or underwriter in connection with the registration statement (and the prospectus included therein). (b) Failure of a prospective seller of Registrable Securities to furnish the information and agreements described in this Section 9.6 shall not affect the obligations of the Company under this Section 9 to Holders who furnish such information and agreements unless, in the reasonable opinion of counsel to the Company or the underwriters, such failure impairs or may impair the viability of the offering or the legality of the registration statement or the underlying offering. 15 Page 43 of 72 Pages 17 9.7 Limitations on Required Registrations. (a) The Company shall not be required to effect more than two registrations pursuant to Section 9.3 hereof in any twelve-month period for all Holders on a combined basis. (b) If at the time of any demand to register Registrable Securities pursuant to Section 9.3 hereof, the Company is engaged, or has fixed plans to engage within 90 days of the time of the request, in a registered public offering as to which the Holders may include such Stock pursuant to Section 9.4 hereof or is engaged in any other activity that, in the good faith determination of the Company's Board of Directors, would be adversely affected by the demanded registration to the material detriment of the Company, then the Company may at its option direct that such demand be delayed for a period not in excess of six months from the effective date of such offering, or the date of commencement of such other material activity, as the case may be, such right to delay a demand to be exercised by the Company not more than once in each 12-month period while the rights set forth in Section 9.3 are in effect. 9.8 Expenses of Registration. All expenses incurred in effecting any registration pursuant to Sections 9.2, 9.3 and 9.4 including, without limitation, all registration and filing fees, printing expenses, expenses of compliance with blue sky laws, fees and disbursements of counsel for the Company, and expenses of any audits incidental to or required by any such registration, shall be borne by the Company, except: (a) all expenses, fees and disbursements of any counsel retained by the Holders, and all underwriting discounts and commissions shall be borne by the Holders of the securities registered pursuant to such registration, pro rata according to the quantity of their securities so registered; (b) the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to Section 9.2 or 9.3 if the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered (in which case all participating Holders shall bear such expenses); and (c) a Holder who withdraws from an underwritten registration pursuant to Section 9.3 shall be required to pay the percentage of the expenses of such registration which is equal to the percentage that the number of shares such Holder requested to be registered bears to the total number of shares to be registered. 9.9 Indemnification. (a) Indemnification by Company. To the extent permitted by law, the Company will indemnify each Holder requesting or joining in a registration, each agent, officer and director of such Holder, each person controlling such Holder and each underwriter and selling broker of the securities so registered (each, an "Indemnitee" and 16 Page 44 of 72 Pages 18 collectively, "Indemnitees") against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any prospectus, offering circular or other document incident to any registration, qualification or compliance (or in any related registration statement, notification or the like) or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by the Company of the Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or state securities laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or a state securities law, in each case applicable to the Company, and will reimburse each such Indemnitee for any legal and any other fees and expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, provided, however, that the Company will not be liable to any Indemnitee in any such case to the extent that any such claim, loss, damage or liability is caused by any untrue statement or omission so made in strict conformity with written information furnished to the Company by an instrument duly executed by such Indemnitee and stated to be specifically for use therein and except that the foregoing indemnity agreement is subject to the condition that, insofar as it relates to any such untrue statement (or alleged untrue statement) or omission (or alleged omission) made in the preliminary prospectus but eliminated or remedied in the amended prospectus on file with the Commission at the time the registration statement becomes effective or in the amended prospectus filed with the Commission pursuant to Rule 424(b) (the "Final Prospectus"), such indemnity agreement shall not inure to the benefit of any underwriter, or any Indemnitee if there is no underwriter, if a copy of the Final Prospectus was not furnished to the person or entity asserting the loss, liability, claim or damage at or prior to the time such furnishing is required by the Securities Act; provided, further, that this indemnity shall not be deemed to relieve any underwriter of any of its due diligence obligations; provided, further, that the indemnity agreement contained in this Section 9.9(a) shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld. (b) Indemnification by Holders. To the extent permitted by law, each Holder (severally and not jointly) requesting or joining in a registration and each underwriter and selling broker of the securities so registered will indemnify the Company and its officers and directors and each person, if any, who controls any thereof within the meaning of Section 15 of the Securities Act, and their respective successors against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any prospectus, offering circular or other document incident to any registration, qualification or compliance (or in any related registration statement, notification or the like) or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading and will reimburse the Company and each other person indemnified pursuant to this paragraph (b) for any legal and any other fees and expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, provided, however, that this paragraph (b) shall apply only if (and only to the extent that) such statement or omission was made in reliance upon and in strict conformity with written information (including, without limitation, written negative 17 Page 45 of 72 Pages 19 responses to inquiries) furnished to the Company by an instrument duly executed by such Holder, underwriter or selling broker and stated to be specifically for use in such prospectus, offering circular or other document (or related registration statement, notification or the like) or any amendment or supplement thereto; provided, that the indemnity agreement contained in this Section 9.9(b) shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without the consent of the Holder or underwriter, as the case may be, which consent shall not be unreasonably withheld; and provided, further, that the obligations of such Holders shall be limited to an amount equal to the net proceeds received by such Holder from the sale of Subject Stock in such offering as contemplated herein, unless such claim, loss, damage, liability or action resulted from such Holder's fraudulent misconduct. (c) Each party entitled to indemnification hereunder (the "indemnified party") shall give notice to the party required to provide indemnification (the "indemnifying party") promptly after such indemnified party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the indemnifying party (at its expense) to assume the defense of any claim or any litigation resulting therefrom, provided that counsel for the indemnifying party, who shall conduct the defense of such claim or litigation, shall be reasonably satisfactory to the indemnified party, and the indemnified party may participate in such defense at such party's expense, and provided further that the omission by any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under this Section 9.9 except to the extent that the omission results in a failure of actual notice to the indemnifying party and such indemnifying party is damaged solely as a result of the failure to give notice. No indemnifying party, in the defense of any such claim or litigation, shall consent, except with the consent of each indemnified party, to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. (d) If the indemnification provided for in this Section 9.9 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, liability, claim, damage, or expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage, or expense as well as any other relevant equitable considerations. This relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. (e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement 18 Page 46 of 72 Pages 20 entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control. (f) The reimbursement required by this Section 9.9 shall be made by periodic payments during the course of the investigation or defense, as and when bills are received or expenses incurred. (g) The obligation of the Company under this Section 9.9 shall survive the conversion, if any, of the Series A Stock, the completion of any offering of Registrable Securities in a registration statement under this Section 9, or otherwise. 9.10 Transfer of Registration Rights. The registration rights granted to Buyer under this Section 9 may be transferred but only to (i) a transferee who shall acquire not less than 50% of the outstanding shares of Registrable Securities held by Buyer, and (ii) affiliates of Buyer. 9.11 "Stand-Off" Agreement. In consideration for the Company performing its obligations under this Section 9, Buyer agrees as follows: (a) For a period of one year from the date of this Agreement, Buyer shall not sell or otherwise transfer any Registrable Securities, other than in connection with a corporate reorganization, tender or exchange offer or other similar circumstances or in a transaction exempt from the registration requirements of the Securities Act. (b) For a period of time (not to exceed 120 days) from the effective date of any registration of an underwritten public offering of securities of the Company (upon request of the Company or of the underwriters managing such underwritten offering) , Buyer shall not sell, make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any Registrable Securities or any other stock of the Company held by Buyer, other than shares of Registrable Securities included in the registration, without the prior written consent of the Company or such underwriters, as the case may be. 9.12 Delay of Registration. Buyer shall have no right to take any action to restrain, enjoin, or otherwise delay any registration as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 9. 9.13 Reports Under Securities Exchange Act of 1934. With a view to making available to the Holders the benefits of Rule 144 promulgated under the Securities Act and any other rule or regulation of the Commission that may at any time permit a Holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3, the Company agrees to file with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act. 10. Miscellaneous. 19 Page 47 of 72 Pages 21 10.1 Expenses. Each party to this Agreement shall bear its own expenses relating to the preparation, execution, delivery and performance of this Agreement and all transactions contemplated thereby. 10.2 Survival of Agreements. All agreements, presentations and warranties and covenants contained herein or made in writing by or on behalf of the Company in connection with the transactions contemplated hereby shall survive the execution and delivery of this Agreement (despite any investigation at any time made by Buyer or on their behalf). All statements contained in any certificate or other instrument executed and delivered by the Company or its duly authorized officers or representatives pursuant hereto in connection with the transactions contemplated hereby shall be deemed representations by the Company hereunder. 10.3 Notices. All notices, requests, consents and other communications herein shall be in writing and shall be deemed to be delivered (i) on the date delivered, if personally delivered or transmitted via facsimile with return confirmation of such transmission; (ii) on the business day after the date sent, if sent by recognized overnight courier service and (iii) on the fifth day after the date sent, if mailed by first-class certified mail, postage prepaid and return receipt requested, as follows: If to the Company: Checkers Drive-In Restaurants, Inc. 600 Cleveland Street, Eighth Floor Clearwater, Florida 34617-1079 Attention: Joseph Stein Facsimile No: (813) 298-2125 Telephone No: (813) 441-3500 with a copy to: Shumaker, Loop & Kendrick, LLP 101 E. Kennedy Blvd., Suite 2800 Tampa, FL 33602 Attention: Darrell C. Smith, Esq. Facsimile No: (813) 229-1660 Telephone No.: (813) 229-7600 If to Buyer: To the parties listed on Exhibit A attached hereto. with a copy to: The counsel listed on Exhibit A or other such addresses as each of the parties hereto may provide from time to time in writing to the other parties. 10.4 Modifications; Waiver. Neither this Agreement nor any provision hereof may be changed, waived, discharged or terminated orally or in writing, except that any provision 20 Page 48 of 72 Pages 22 of this Agreement may be amended and the observance of any such provision may be waived (either generally or in a particular instance and either retroactively or prospectively) with (but only with) the written consent of the Company and Buyer. 10.5 Entire Agreement. This Agreement, together with the schedules and exhibits attached hereto and made a part hereof, contains the entire agreement between the parties with respect to the transactions contemplated hereby, and supersedes all negations, agreements, representations, warranties, commitments, whether in writing or oral, prior to the date hereof. 10.6 Successors and Assigns. Except as otherwise expressly provided in this Agreement, all of the terms of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and transferees of the parties hereto. 10.7 Enforcement. (a) Remedies at Law or in Equity. If either party hereto shall default in any of its obligations under this Agreement or if any representation or warranty made by or on behalf of it in this Agreement or in any certificate, report or other instrument delivered by it under or pursuant to any term hereof shall be untrue or misleading in any material respect as of the date of this Agreement or as of the Closing Date or as of the date it was made, furnished or delivered, the other party may proceed to protect and enforce its rights by suit in equity or action at law, whether for the specific performance of any term contained in this Agreement or the Certificate of Designation, injunction against the breach of any such term or in furtherance of the exercise of any power granted in this Agreement or the Certificate of Designation, or to enforce any other legal or equitable right of such party or to take any one of more of such actions. In the event either party brings such an action against the other, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses enforcing any right of such prevailing party under or with respect to this Agreement or the Certificate of Designation, including without limitation such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals. (b) Remedies Cumulative; Waiver. No remedy referred to herein is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available at law or in equity. No express or implied waiver by Buyer of any default shall be a waiver of any future or subsequent default. The failure or delay of Buyer in exercising any rights granted hereunder shall not constitute a waiver of any such right and any single or partial exercise of any particular right by Buyer shall not exhaust the same or constitute a waiver of any other right provided herein. 10.8 Execution and Counterparts; Facsimile Execution. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and all such counterparts together shall constitute one instrument. In addition, to the extent that receipt is confirmed, this Agreement may be executed and sent by telecopy with the original to follow by a nationally recognized 21 Page 49 of 72 Pages 23 overnight delivery service. Each party shall receive a duplicate original of the counterpart copy or copies executed by it and by the Company. 10.9 Governing Law; Jurisdiction; and Severability. This Agreement shall be governed by the internal laws of the State of Delaware, without regard to principles of conflicts of law. Each party hereto consents to the jurisdiction of any court located in the State of California, County of Los Angeles for the purpose of any action, suit or proceeding arising out of or based on this Agreement or any provision hereof. In the event any provision of this agreement of the application of any such provision to any party shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this agreement shall remain in full force and effect. 10.10 Headings. The descriptive headings of the Sections hereof and the Schedules and Exhibits hereto are inserted only and do not constitute a part of this Agreement. 22 Page 50 of 72 Pages 24 IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized officers as of the date first written above. THE COMPANY CHECKERS DRIVE-IN RESTAURANTS, INC. By:__________________________ Name:________________________ Title:_______________________ BUYER ___________________________ By:__________________________ Name:________________________ Title:_______________________ 23 Page 51 of 72 Pages 25 EXHIBIT A BUYER _____________________________________ Common Stock Purchased _______________________________ shares ($1.14 per share or an aggregate purchase price of $ ________________________) Series A Preferred Stock Purchased _______________________________ shares ($114.00 per share or an aggregate purchase price of $ _________________________) 24 Page 52 of 72 Pages EX-99.02 3 DESIGNATION OF RIGHTS AGREEMENT 1 EXHIBIT 99.02 Designation of Rights Agreement dated February 19, 1997 Page 53 of 72 Pages 2 State of Delaware PAGE 1 Office of the Secretary of State -------------------------------- I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF DESIGNATION OF "CHECKERS DRIVE-IN RESTAURANTS, INC.", FILED IN THIS OFFICE ON THE EIGHTEENTH DAY OF FEBRUARY, A.D. 1997, AT 1 O'CLOCK P.M. A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING. [SEAL] /s/ EDWARD J. FREEL ----------------------------------- Edward J. Freel, Secretary of State 2272161 8100 AUTHENTICATION: 8334651 971052144 DATE: 02-18-97 Page 54 of 72 Pages 3 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 01:00 PM 02/18/1997 971052144 - 2272161 CERTIFICATE OF DESIGNATION of SERIES A PREFERRED STOCK of CHECKERS DRIVE-IN RESTAURANTS, INC. Pursuant to Section 151 of the General Corporation Law of the State of Delaware CHECKERS DRIVE-IN RESTAURANTS, INC., a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), in accordance with the provisions of Section 103 thereof, DOES HEREBY CERTIFY: That pursuant to the authority vested in the Board of Directors in accordance with the provisions of the Corporation's Restated Certificate of Incorporation, as amended (the "Restated Certificate of Incorporation"), the said Board of Directors on February 12, 1997, adopted the following resolution creating a series of 87,719 shares of Preferred Stock designated as "Series A Preferred Stock": RESOLVED, that pursuant to the authority vested in the Board of Directors of this Corporation in accordance with the provisions of the Certificate of Incorporation, Series A of Preferred Stock, par value $.001 per share, of the Corporation be and hereby is created, and that the designation and number of shares thereof and the voting and other powers, preferences and relative, participating, optional or other rights of the shares of such series and the qualifications, limitations and restrictions thereof are as follows: SERIES A PREFERRED STOCK 1. Designation and Amount. There shall be a series of Preferred Stock that shall be designated as "Series A Preferred Stock" (hereinafter referred to as the "Series A Preferred"), and the number of shares constituting such series shall be 87,719. Such number of shares may be decreased by resolution of the Board of Directors; provided, however, that no decrease shall reduce the number of shares of Series A Preferred to less than the number of shares then issued and outstanding. 1 Page 55 of 72 Pages 4 2. Dividends and Distributions. (A) Subject to the prior and superior rights of the holders of any shares of any series of Preferred Stock ranking prior and superior to the shares of Series A Preferred with respect to dividends and distributions (other than payments on liquidation, dissolution or winding up to which Section 6 hereof is applicable) (hereinafter "Dividends"), each share of Series A Preferred at that time issued and outstanding, in preference to shares of any class or series of stock of the Corporation ranking junior to the Series A Preferred with respect to Dividends, shall be entitled to receive, out of funds or property legally available for the purpose, a Dividend accruing from the date hereof and equal, on a per share basis, to $16.53 per annum; provided, that such Dividends shall accrue from the closing date for the sale of the Series A Preferred only if either (i) the conversion of the Series A Preferred pursuant to Section 9 hereof and any change in the number of authorized or outstanding shares of Common Stock needed to enable the Corporation to fulfill its obligations hereunder are not approved at the first action by the Corporation's stockholders occurring after the date hereof (the "Stockholder Approval") or (ii) the Series A Preferred is not converted into Common Stock prior to June 30, 1997. Such Dividends shall be payable in arrears in cash commencing on August 19, 1997 and quarterly thereafter, on the 19th day of November, February, May and August, to holders of record of the Series A Preferred on such dates as the Board of Directors (or any authorized Committee thereof) may from time to time determine, but only when and as declared by the Board of Directors (or such Committee). Such Dividends shall be payable before any Dividends shall be declared or paid upon, or set apart for, the issued and outstanding Common Stock or such other stock of the Corporation into which the Common Stock may be converted (the "Common Stock"), and shall be cumulative, so that if at any time any Dividends upon the outstanding shares of Series A Preferred shall not have been paid thereon, or declared and set apart therefor, with respect to all preceding dividend periods, the amount of the deficiency shall be fully paid, or declared and funds or property set apart for payment, but without interest, before any Dividend shall be paid upon, or declared and funds or property set apart for, the Common Stock. (B) If at any time any cash Dividend on any other class or series of Preferred Stock of the Corporation having cumulative Dividend rights shall be in default, in whole or in part, no cash Dividend shall be paid, or declared and set apart for payment, on the Series A Preferred unless concurrently therewith, there shall be paid, or declared and set apart for payment, without interest, all Dividends for all prior dividend periods on any other class or series of cumulative Preferred Stock of the Corporation which may hereafter be created having with respect to Dividend rights priority over or parity with the Series A Preferred; provided, however, in the event such default in Dividend payments is with respect only to the Series A Preferred and any other class or any series of cumulative Preferred Stock of the Corporation which may hereafter be created having with respect to Dividend rights parity with the Series A Preferred. Dividends may be paid or declared and set apart for payment, without interest, on the Series A Preferred and such other class or series of cumulative Preferred Stock in amount proportional to the amounts by which such Dividends are in default for the Series A Preferred and such other class or series of cumulative Preferred Stock. 2 Page 56 of 72 Pages 5 (C) Dividends paid on the Series A Preferred in an amount less than the total amount of Dividends at the time accrued and payable shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series A Preferred entitled to receive payment of a Dividend declared thereon, which record date shall be no more than 60 days prior to the date fixed for the payment thereof. (D) Any reference to "Dividends" contained herein shall not be deemed to include any Dividend payable in capital stock of the Corporation, or in rights or warrants to acquire capital stock of the Corporation, nor shall any such reference to "Dividends" in relation to issued and outstanding shares be deemed to limit, curtail, or divest the authority of the Board of Directors to make any proper distributions of authorized but unissued Common Stock, if any. 3. Voting Rights. The holders of shares of Series A Preferred shall have only the following voting rights: (A) If the Corporation fails to declare and pay two Dividends, which holders of Series A Preferred are entitled to receive pursuant to Section 2 hereof, whether or not such failure is for consecutive periods, then and in such event, the number of directors constituting the Corporation's Board of Directors shall be increased by two, and the holders of the Series A Preferred (voting as a separate class) shall be entitled at any annual meeting of the stockholders to elect two directors of the Corporation; provided, however, that the holders of Series A Preferred may, through the written consent of holders of Series A Preferred representing a majority of the issued and outstanding shares thereof, elect two directors to serve as directors of the Corporation until their successors are elected at the next annual meeting of stockholders. The presence in person or by proxy of the person entitled to vote a majority of the shares of the Series A Preferred at any such meeting shall constitute a quorum for the purpose of electing directors as hereinabove provided. Such right of the holders of the Series A Preferred to elect directors may be exercised until the stockholders of the Corporation approve the conversion of the Series A Preferred into Common Stock pursuant to Section 9 hereof, and when such conversion is so approved, the right of the holders of Series A Preferred to elect any directors shall cease. The directors so elected shall serve until their respective successors shall be elected and qualified; provided, however, that whenever the holders of the Series A Preferred shall cease to have the special rights to elect directors as above provided, the terms of office of all persons elected as directors by the holders of the Series A Preferred, or elected to fill any vacancies or directors so elected by the holders of the Series A Preferred, shall thereupon automatically terminate. If, during any interval between annual meetings of stockholders for the election of directors, and while the holders of the Series A Preferred shall be entitled to elect directors pursuant to this Paragraph (A) of Section 3, the number of directors who have been elected by the holders of the Series A Preferred shall, by reason of death, resignation or removal, be less than two, the vacancy or vacancies in the directors elected by the holders of the Series A 3 Page 57 of 72 Pages 6 Preferred may be filled by the written consent of holders of Series A Preferred representing a majority of the issued and outstanding shares thereof. (B) The approval of the holders of two-thirds (2/3) of the outstanding shares of Series A Preferred (voting as a separate class) shall be required for an amendment of the Restated Certificate of Incorporation which would materially alter or change the powers, preferences or special rights of the Series A Preferred so as to affect them adversely. (C) Except as required by law, holders of the Series A Preferred shall have no other voting rights and their consent shall not be required for taking any corporate action. 4. Certain Restrictions. (A) Whenever Dividends payable on the Series A Preferred as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid Dividends, whether or not declared, on shares of Series A Preferred outstanding shall have been paid in full, the Corporation shall not: (i) declare or pay Dividends on, or redeem or purchase or otherwise acquire for consideration any shares of stock ranking with respect to Dividends junior (either as to Dividends or upon liquidation, dissolution or winding up) to the Series A Preferred; (ii) declare or pay any Dividends on any shares of stock ranking with respect to Dividends on a parity (either as to Dividends or upon liquidation, dissolution or winding up) with the Series A Preferred and all such parity stock on which Dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled; or (iii) purchase or otherwise acquire for consideration any shares of Series A Preferred, or any shares ranking with respect to Dividends on a parity with the Series A Preferred, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of Series A Preferred, or to such holders and holders of any such shares ranking on a parity therewith, upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes. (B) The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of the Corporation unless the Corporation could, under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner. 5. Reacquired Shares. Any shares of Series A Preferred purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired promptly after the 4 Page 58 of 72 Pages 7 acquisition thereof. All such shares shall upon their retirement become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock to be created by resolution or resolutions of the Board of Directors, subject to any conditions and restrictions on issuance set forth herein. 6. Liquidation, Dissolution or Winding Up. (A) Upon any liquidation (voluntary or otherwise), dissolution or winding up of the Corporation, no distribution shall be made to the holders of shares of stock ranking junior (upon liquidation, dissolution or winding up) to the Series A Preferred unless, prior thereto, the holders of shares of Series A Preferred shall have received an amount per share equal to $114.00 plus accrued unpaid Dividends, based upon the number of days elapsed and a 360-day year (the "Liquidation Preference"). (B) In the event, however, that there are not sufficient assets available to permit payment in full of the Liquidation Preference and the liquidation preferences of all other series of Preferred Stock, if any, ranking (upon liquidation, dissolution or winding up) on a parity with the Series A Preferred, then such remaining assets shall be distributed ratably to the holders of such parity shares in proportion to their respective liquidation preferences. (C) Neither the merger or consolidation of the Corporation into or with another corporation nor the merger or consolidation of any other corporation into or with the Corporation shall be deemed to be a liquidation, dissolution or winding up of the Corporation within the meaning of this Section 6. 7. Consolidation, Merger, Etc. In case (i) the Corporation shall enter into any consolidation, merger, combination or other transaction in which the Common Stock is to be exchanged for or changed into other stock or securities, cash and/or any other property, (ii) a tender or exchange offer for 25% of the outstanding shares of Common Stock is successfully completed, (iii) the Corporation shall sell all or substantially all of the Corporation's assets, or (iv) any other event, occurring after a failure by the Company to obtain the Stockholder Approval at the first action by the Corporation's stockholders occurring after the date hereof, which results in a change of control of the Corporation, then in any such case each share of Series A Preferred shall at the same time be automatically redeemed for the then current Liquidation Preference. 8. Redemption. The Series A Preferred shall be redeemed for the then current Liquidation Preference on or prior to the second anniversary of the date hereof. If the Corporation does not redeem the Series A Preferred as required by this Section 8, then: (i) the Dividend which holders of the Series A Preferred are entitled to receive hereunder shall increase to $20.52 per share per annum; and (ii) if the holders of the Series A Preferred are not otherwise entitled to elect two directors, the number of directors constituting the Board of Directors shall be increased by two, and the holders of the Series A Preferred (voting as a 5 Page 59 of 72 Pages 8 separate class) shall be entitled to elect two directors of the Corporation in accordance with the terms and procedures set forth in Section 3 hereof. 9. Conversion (A) The provisions of this Section 9 are subject to, and shall not take effect until, approval by the Corporation's stockholders. (B) Upon the date of the Stockholder Approval (the "Conversion Date"), the Series A Preferred shall be automatically converted into the Common Stock and such other capital stock of the corporation as hereinafter provided. The corporation shall cause a notice of such stockholder approval to be mailed, as soon as practicable thereafter, to the holders of record of the outstanding Series A Preferred on the date of such approval, and to the transfer agent, if any, for the Series A Preferred. Upon the Conversion Date, the holders of the Series A Preferred shall be deemed to be holders of the number of shares of the Common Stock into which their shares of Series A Preferred have been converted, and shall have no rights with respect to the Series A Preferred except to exchange the certificate(s) representing the holder's shares of Series A Preferred for certificates representing Common Stock. (C) Each share of Series A Preferred shall be convertible at the office of the transfer agent for the Series A Preferred, if any, or at such other office or offices, as the Board of Directors of the Corporation may designate, into the number of fully paid and nonassessable shares of Common Stock of the Corporation (calculated as to each conversion to the nearest 1/100th of a share) obtained by dividing the then current Liquidation Preference attributable to a share of Series A Preferred by $1.14, subject to adjustment as provided in Paragraph (F) of this Section 9 (the "Conversion Rate"). Notwithstanding any other provisions of this Section 9, no change in the Conversion Rate shall actually be made until the cumulative effect of the adjustments called for by this Section 9 since the date of the last change in the Conversion Rate would change the Conversion Rate by more than two percent (2%). However, once the cumulative effect would result in a two percent (2%) change, then the conversion rate shall be changed to reflect all adjustments called for by this paragraph and not previously made. (D) No fractional shares of Common Stock shall be issued upon conversion of Series A Preferred but, in lieu of any fraction of a share of Common Stock which would otherwise be issuable in respect of the aggregate number of shares surrendered for conversion at one time by the same holder, the Corporation shall pay in cash an amount equal to the sum of the current market price of the Corporation's Common Stock multiplied by a number equal to the fraction of a share. (E) For the purposes of any computation pursuant to this Section 9, the current market price of the Corporation's Common Stock shall be deemed to be the average of the daily closing prices of the Corporation's Common Stock for the thirty (30) consecutive business days commencing forty-five (45) business days before the date on which such shares are duly converted. For purposes of this Section 9, the closing price for each day shall be the last sale 6 Page 60 of 72 Pages 9 price of the Corporation's Common Stock on the NASDAQ National Market, or if the Corporation's Common Stock is not traded on the NASDAQ National Market, the average of the bid and asked prices as furnished by any New York Stock Exchange member firm selected from time to time by the Corporation for such purpose, or if no such bid and asked prices can be obtained from any such firm, the fair market value of one share of the Common Stock on such day as determined in good faith by the Board of Directors of the Corporation. (F) The Conversion Rate shall be subject to adjustment from time to time in certain cases as follows: (i) In case the Corporation shall (a) pay a dividend on its Common Stock in shares of its capital stock, (b) subdivide its outstanding Common Stock into a greater number of shares, (c) combine the shares of its outstanding Common Stock into a smaller number of shares, or (d) issue by reclassification of its Common Stock (including any such reclassification in connection with a consolidation or merger in which the Corporation is the continuing corporation) any shares of its capital stock, the Conversion Rate in effect immediately prior thereto shall be proportionately adjusted so that the holder of any Series A Preferred thereafter surrendered for conversion shall be entitled to receive, to the extent permitted by applicable law, the number and kind of shares of capital stock of the Corporation which he would have owned or have been entitled to receive after the happening of such event had such Series A Preferred been converted immediately prior to the happening of such event. Such adjustment shall be made whenever any of such events shall occur. An adjustment made pursuant to this Paragraph (F)(i) of Section 9 shall become effective, retroactively, immediately after the record date in the case of a stock dividend and shall become effective immediately after the effective date in the case of subdivision, combination or reclassification. (ii) In case the Corporation shall issue rights or warrants to all holders of its Common Stock entitling them (for a period expiring within forty-five (45) days after the record date mentioned below) to subscribe for or purchase Common Stock at a price per share less than the current market price per share of the Common Stock (as defined above) at the record date mentioned below, the Conversion Rate then in effect shall be adjusted by multiplying it by the ratio which (a) the number of shares of Common Stock outstanding on the date of issuance of such rights or warrants plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at such current market price bears to (b) the number of shares of Common Stock outstanding on the date of issuance of such rights or warrants plus the number of additional Common Shares offered for subscription or purchase. Such adjustment shall be made whenever such rights or warrants are issued, and shall become effective, retroactively, immediately after the record date for the determination of shareholders entitled to receive such rights or warrants. (iii) In case the Corporation shall distribute to all holders of its Common Stock (including any such distribution made in connection with a consolidation or merger in which the Corporation is the continuing corporation) evidences of its indebtedness or assets, then in such case the Conversion Rate then in effect shall be adjusted by multiplying it by the ratio 7 Page 61 of 72 Pages 10 which (a) the current market price per share of the Common Stock (as defined above) less the fair market value (as determined in good faith by the Board of Directors of the Corporation, (based upon the opinion of an independent investment banking firm), whose determination shall be conclusive) of the portion of such evidences of indebtedness so distributed applicable to one share of Common Stock bears to (b) such current market price per share of the Common Stock at the date of such distribution. Such adjustment shall be made whenever any such distribution is made, and shall become effective, retroactively, immediately after the record date for the determination of shareholders entitled to receive such distribution. (iv) All calculations hereunder shall be made to the nearest cent or to the nearest one-hundredth (1/100) of a share, as the case may be. (v) In the event that at any time, as a result of an adjustment made pursuant to Paragraph (F)(i) above, the holder of any Series A Preferred thereafter converted shall become entitled to receive any shares of capital stock of the Corporation other than its Common Stock, thereafter the number of such other shares so receivable upon conversion shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in Paragraphs (F)(i) to (iv), inclusive, above. Except as otherwise provided for in this Paragraph (F) of Section 9, no adjustment shall be made on any conversion for share distributions, dividends, including, without limitation, dividends in property distributions, theretofore declared and paid or payable on the Common Stock. Whenever the Conversion Rate is adjusted as herein provided, the Corporation shall send to the transfer agent, if any, for the Series A Preferred and to the record holders of the Series A Preferred a statement executed by the President as to the new Conversion Rate. (G) Upon obtaining the Stockholder Approval, the Corporation shall at all times reserve and keep available, out of its authorized and unissued stock, solely for the purpose of effecting the conversion of the Series A Preferred, such number of shares of Common Stock as shall from time to time be sufficient to effect the conversion of all shares of Series A Preferred from time to time outstanding. IN WITNESS WHEREOF, the undersigned has executed this Certificate this 14th day of February, 1997. CHECKERS DRIVE-IN RESTAURANTS, INC. By: /s/ JAMES T. HOLDER --------------------------------- James T. Holder Senior Vice President and General Counsel 8 Page 62 of 72 Pages EX-99.03 4 JOINT FILING AGREEMENT 1 EXHIBIT 99.03 Joint Filing Agreement Page 63 of 72 Pages 2 JOINT FILING AGREEMENT This Agreement dated as of this 17th day of February, 1996 by and among CKE Restaurants, Inc., a Delaware corporation ("CKE"), Fidelity National Financial, Inc., a Delaware corporation ("Fidelity"), William P. Foley II ("Foley"), Carl Leo Karcher ("Karcher"), Stephen Mahood ("Mahood"), William A. Imparato ("Imparato"), Frank P. Willey ("Willey"), C. Thomas Thompson ("Thompson"), Andrew F. Puzder ("Puzder"), Carl A. Strunk ("Strunk") (collectively, the "Reporting Lender Group"), Patrick F. Stone ("Stone"), Daniel D. Lane ("Lane"), Danny Lane ("D. Lane"), Cary H. Thompson ("Thompson"), Carl N. Karcher ("C. N. Karcher"), C. Howard Lester ("Lester'), Byron E. Allumbaugh ("Allumbaugh"), Ernie Smith ("Smith), Ronald R. Maudsley ("Maudsley"), Paul D. DeFalco ("DeFalco') and Glen W. Cochran ("Cochran") (collectively, the "Reporting Buyers"). W I T N E S S E T H: WHEREAS, the Reporting Buyers are required to file an amendment to Schedule 13D reporting on November 22, 1996, transaction pursuant to Section 13(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), and Rule 13d-1 promulgated thereunder, in connection with the Private Placement of Securities with respect to Checkers Drive-In Restaurants, Inc., a Delaware corporation ("Checkers"); and WHEREAS, pursuant to Paragraph (f) of Rule 13d-1, the undersigned desire to satisfy any Schedule 13D filing obligation under Rule 13d-1 by a single joint filing. NOW, THEREFORE, in consideration of the premises, the undersigned hereto agree as follows: 1. The undersigned agree that any amendments to the previously filed Statement on Schedule 13D a copy of which is attached, and any further Amendments of such Statement, are filed on behalf of each one of them. This Agreement may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Page 64 of 72 Pages 3 IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed and delivered on the date above indicated. CKE RESTAURANTS, INC., in its capacity as a Lender and Buyer and as the Agent By: /s/ William P. Foley, II --------------------------------------------- Name: William P. Foley, II Title: Chief Executive Officer FIDELITY NATIONAL FINANCIAL, INC. By: /s/ Carl A. Strunk --------------------------------------------- Name: Carl A. Strunk Title: Chief Financial Officer /s/ William P. Foley II --------------------------------------------- William P. Foley II /s/ Carl Leo Karcher --------------------------------------------- Carl Leo Karcher /s/ Stephen Mahood --------------------------------------------- Stephen Mahood /s/ William A. Imparato --------------------------------------------- William A. Imparato /s/ Frank P. Willey --------------------------------------------- Frank P. Willey /s/ C. Thomas Thompson --------------------------------------------- C. Thomas Thompson Page 65 of 72 Pages 4 /s/ Andrew F. Puzder --------------------------------------------- Andrew F. Puzder /s/ Carl A. Strunk --------------------------------------------- Carl A. Strunk /s/ Patrick F. Stone --------------------------------------------- Patrick F. Stone /s/ Daniel D. Lane --------------------------------------------- Daniel D. Lane /s/ Danny Lane --------------------------------------------- Danny Lane /s/ Cary H. Thompson --------------------------------------------- Cary H. Thompson /s/ Carl N. Karcher --------------------------------------------- Carl N. Karcher /s/ C. Howard Lester --------------------------------------------- C. Howard Lester /s/ Bryon E. Allumbaugh --------------------------------------------- Bryon E. Allumbaugh /s/ Ernie Smith --------------------------------------------- Ernie Smith /s/ Ronald R. Maudsley --------------------------------------------- Ronald R. Maudsley Page 66 of 72 Pages 5 /s/ Paul D. DeFalco --------------------------------------------- Paul D. DeFalco /s/ Glen W. Cochran --------------------------------------------- Glen W. Cochran Page 67 of 72 Pages EX-99.04 5 POWER OF ATTORNEY 1 EXHIBIT 99.04 Power of Attorney Page 68 of 72 Pages 2 POWER OF ATTORNEY Each of the undersigned hereby constitutes and appoints William P.Foley II, Andrew F. Puzder and M'Liss Jones Kane, and each of them, with full power of substitution, his/her true and lawful attorney-in-fact with full power to sign on his/her behalf any amendments to a Schedule 13D under the Securities Exchange Act of 1934 originally filed pursuant to a November 22, 1996 event, and to file the same with theSecurities and Exchange Commission, and to execute any and all other instruments and take any and all other actions on his/her behalf as such attorney-in-fact deems necessary or advisable in connection therewith, and hereby ratifies and confirms all that such attorney-in-fact may lawfully do or cause to be done by virtue hereof. EXECUTED as of the date set forth below. Date: March 3, 1997 /s/ WILLIAM P. FOLEY II -------------------------------- William P. Foley II Date: March 3, 1997 /s/ CARL LEO KARCHER -------------------------------- Carl Leo Karcher Date: March 3, 1997 /s/ STEPHEN MAHOOD -------------------------------- Stephen Mahood Date: March 3, 1997 /s/ WILLIAM A. IMPARATO -------------------------------- William A. Imparato Date: March 3, 1997 /s/ FRANK P. WILLEY -------------------------------- Frank P. Willey Date: March 3, 1997 /s/ C. THOMAS THOMPSON -------------------------------- C. Thomas Thompson Page 69 of 72 Pages 3 Date: March 3, 1997 /s/ ANDREW F. PUZDER -------------------------------- Andrew F. Puzder Date: March 3, 1997 /s/ ROBERT A. WILSON -------------------------------- Robert A. Wilson Date: March 3, 1997 /s/ CARL A. STRUNK -------------------------------- Carl A. Strunk Date: March 3, 1997 /s/ PATRICK F. STONE -------------------------------- Patrick F. Stone Date: March 3, 1997 /s/ DANIEL D. LANE -------------------------------- Daniel D. Lane Date: March 3, 1997 /s/ DANNY LANE -------------------------------- Danny Lane Date: March 3, 1997 /s/ CARY H. THOMPSON -------------------------------- Cary H. Thompson Date: March 3, 1997 /s/ CARL N. KARCHER -------------------------------- Carl N. Karcher Date: March 3, 1997 /s/ C. HOWARD LESTER -------------------------------- C. Howard Lester Page 70 of 72 Pages EX-99.05 6 PRESS RELEASE ISSUED BY CHECKERS 1 EXHIBIT 99.05 The Press Release issued by Checkers dated February 21, 1997 Page 71 of 72 Pages 2 FOR IMMEDIATE RELEASE CHECKERS DRIVE-IN RESTAURANTS, INC. ANNOUNCES COMPLETION OF $20.0 MILLION PRIVATE PLACEMENT OFFERING CLEARWATER, FL -- FEBRUARY 21, 1997 -- CHECKERS DRIVE-IN RESTAURANTS, INC. (NASDAQ:CHKR) today announced that it has received $20.0 million in consideration for issuing 8,771,929 shares of common stock, $.001 par value, and 87,719 shares of Series A preferred stock, $114.0 par value. CKE Restaurants, Inc. which led a qualified investor group, purchased 6,162,299 of Checkers common stock and 61,636 shares of Checkers Series A preferred stock in the private placement. The Series A preferred stock will be converted into common stock upon shareholder approval at the annual shareholders' meeting and carries a dividend rate of 14.5% if the shareholders fail to approve the conversion. Checkers plans to use the proceeds from the private placement to immediately pay the following: o $8.0 million to reduce the primary credit facility debt carrying a 13% interest rate; o $2.5 million outstanding under a revolving line of credit carrying a 13% interest rate; o $2.3 million to pay key food and paper distributors; and o remaining amounts to be used primarily to pay certain other existing vendors. Joe Stein, executive vice president and chief financial officer commented, "The completion of this private placement allows us to improve our relationship with key suppliers and move forward on certain purchasing projects that will reduce our food and other costs. Additionally, we will use a portion of the proceeds to reduce amounts due to our lender group, which will result in a reduction of interest expense in excess of $1.3 million annually." Rick Fortman, president and chief operating officer stated, "The receipt of the private placement funds will allow us to concentrate on improving restaurant operations and focus on reducing costs associated with food, paper and labor." Checkers Drive-In Restaurants, Inc., along with its franchisees, operates approximately 475 double drive-thru hamburger restaurants primarily located in the Southeast. Page 72 of 72 Pages -----END PRIVACY-ENHANCED MESSAGE-----