-----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, RMeuwaNExlj3RSbQbUDVXiYgl7GS+ju5opecxiH6Qtf6TjM8T2IwaIFc9+170OfE Rew4blwyndCaatFl3+UcMQ== 0000898430-96-003196.txt : 19960716 0000898430-96-003196.hdr.sgml : 19960716 ACCESSION NUMBER: 0000898430-96-003196 CONFORMED SUBMISSION TYPE: DFAN14A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19960715 SROS: NONE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SUMMIT FAMILY RESTAURANTS INC CENTRAL INDEX KEY: 0000053281 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 870264039 STATE OF INCORPORATION: DE FISCAL YEAR END: 0925 FILING VALUES: FORM TYPE: DFAN14A SEC ACT: 1934 Act SEC FILE NUMBER: 000-06054 FILM NUMBER: 96594999 BUSINESS ADDRESS: STREET 1: 440 LAWNDALE DRIVE CITY: SALT LAKE CITY STATE: UT ZIP: 84115 BUSINESS PHONE: 8015327840 MAIL ADDRESS: STREET 1: 440 LAWNDALE DRIVE CITY: SALT LAKE CITY STATE: UT ZIP: 84115 FORMER COMPANY: FORMER CONFORMED NAME: JBS RESTAURANTS INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: JBS BIG BOY FAMILY RESTAURANTS INC DATE OF NAME CHANGE: 19810830 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: FIRST GLOBAL SECURITIES INC /CA/ CENTRAL INDEX KEY: 0001015354 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 954307359 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: DFAN14A BUSINESS ADDRESS: STREET 1: 790 E COLORADO NO. 500 CITY: PASADENA STATE: CA ZIP: 91101 BUSINESS PHONE: 8185688800 MAIL ADDRESS: STREET 1: 790 E COLORADO NO. 500 CITY: PASADENA STATE: CA ZIP: 91101 DFAN14A 1 ADDITIONAL PROXY MATERIALS SCHEDULE 14A INFORMATION Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934 (Amendment No. ) Filed by the Registrant [X] Filed by a Party other than the Registrant [_] Check the appropriate box: [_] Preliminary Proxy Statement [_] Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) [_] Definitive Proxy Statement [X] Definitive Additional Materials [_] Soliciting Material Pursuant to Section 240.14a-11(c) or Section 240.14a-12 SUMMIT FAMILY RESTAURANTS INC - -------------------------------------------------------------------------------- (Name of Registrant as Specified In Its Charter) FIRST GLOBAL SECURITIES INC - -------------------------------------------------------------------------------- (Name of Person(s) Filing Proxy Statement, if other than the Registrant) Payment of Filing Fee (Check the appropriate box): [_] $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1), 14a-6(i)(2) or Item 22(a)(2) of Schedule 14A. [_] $500 per each party to the controversy pursuant to Exchange Act Rule 14a-6(i)(3). [_] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11. (1) Title of each class of securities to which transaction applies: ------------------------------------------------------------------------- (2) Aggregate number of securities to which transaction applies: ------------------------------------------------------------------------- (3) Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is calculated and state how it was determined): ------------------------------------------------------------------------- (4) Proposed maximum aggregate value of transaction: ------------------------------------------------------------------------- (5) Total fee paid: ------------------------------------------------------------------------- [_] Fee paid previously with preliminary materials. [_] Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. (1) Amount Previously Paid: ------------------------------------------------------------------------- (2) Form, Schedule or Registration Statement No.: ------------------------------------------------------------------------- (3) Filing Party: ------------------------------------------------------------------------- (4) Date Filed: ------------------------------------------------------------------------- Notes: EX-99.3 2 NEWS RELEASE EXHIBIT 99.3 NEWS RELEASE URGENT JULY 13, 1996 - FOR RELEASE IMMEDIATELY Contact: Susan Trenham (818) 406-5017 or (818) 568-8800 SALT LAKE CITY, UTAH IRREGULARITIES OCCUR IN VOTING OF SUMMIT/CKE MERGER The Opposition Group in the proposed merger between Summit Family Restaurants, Inc. and CKE Restaurants, Inc. alleged that major irregularities have occurred in the voting of the merger between Summit Family Restaurants, Inc. and CKE Restaurants, Inc. Susan Trenham, CEO of First Global Securities, Inc., and representative for the group, delivered certified ballots from ADP, certified ballots from four brokerage firms, plus ballots from certificate holders, representing approximately 924,050 shares to the poller of the election at 9:40 a.m., July 12, 1996. At 4:00 P.M. the group was told that at least eight pages of ballots, including one page with a block of 383,300 shares voted by Kennedy Capital Management, Inc. and certified by ADP; and the votes cast by customers of Merrill Lynch, Paine Webber, Prudential Bache, and Dean Witter were not in the possession of pollers of the election and would not be counted. Summit had received the same set of ADP ballots. Bill Fiske of Corporate Investor Communications, Inc., solicitor for Summit, acknowledged that he had a faxed copy and a hard copy of the same ballots; that he had calculated the votes in the same manner as Trenham; that his totals were the same result as the Opposition Group, and that he believed the votes to have been cast by shareholders and delivered by Trenham. Susan Trenham explained, "I received faxed copies of the ADP certified ballots between 10:00 p.m. and 2:00 a.m. on the evening and morning of July 11 and July 12. I also received a handwritten tabulation of the votes. I went to my room and retabulated the votes to be sure that my figures agreed with ADP and so that I would know that I received all faxes. I added the Merrill Lynch, Dean Witter, Prudential, and Paine Webber certified sheets which had been sent separately from the ADP and tabulated the total". The ballots were never left in the room by themselves between 2:00 a.m. and 9:40 a.m. the next morning when they were delivered to the pollers, William Marsh and Frank O'Bara. Trenham went on to say, "I went down to the meeting room first without the ballots and checked to make sure that the pollers were there and I signed in. An assistant remained in the room with the ballots. I went back up and picked up the ballots, got on an express elevator with a hotel employee, and took the ballots directly to the pollers. After handing over the ballots I signed a master ballot stating I was delivering 924,050 proxy votes. I watched as the pollers put the cards in a brief case and the sheets into a manila folder and then into a briefcase. 1 Just before the meeting I was advised that more votes were coming in via fax. I went to make arrangements for the additional faxes to be delivered to me before the polling ended. They were brought to me and I handed the additional faxes to the poller who took our folder back out of the brief case. I was supposed to speak at the meeting, which had just started, so I did not stay at the table a second time to see that the folder was put back in the briefcase. The pollers now acknowledge that six folders, including the Opposition Group's folder, were left sitting on top of the table throughout the meeting, where anywhere from twenty-five to fifty people had been standing and the pollers were engaged in conversation. One or both pollers were observed engaged in conversation several feet away from the table and the briefcase on more than one occasion. The pollers also turned with their backs to the table repeatedly when people behind them asked questions." At 10:06 a.m. hard copies of the ADP ballots were delivered by UPS to the hotel and signed for by Andrea Nevin. The polls were still open at that time. Summit received a hard copy at the same time. A hotel representative took both UPS packages to a Summit representative who held both packages until the meeting ended. At that time the package was given to Susan Trenham. "I walked over to the poller to exchange the hard copies for the fax copies. The poller stated that he would not accept the hard copies because the polls were closed". Following the meeting Trenham was advised that since it was a third party counting the ballots that neither Summit nor the Opposition Group would be present during the counting but that afterwards all ballots and tabulations would be produced for inspection. The pollers took the ballots to their rooms. Susan Trenham believed at that time that she would receive a report that votes representing approximately 920,000 shares had been cast. At 4:00 p.m. Susan Trenham received a conference telephone call from the poller where the results were announced to both Summit and the Opposition Group. The poller announced that Summit had received 3,127,308 votes in favor of the merger and that the Opposition Group had received only 104,840 votes against. Trenham demanded to see the ballots and the group convened at the law offices of Kimball, Parr, Waddoups, Brown, & Gee. In reviewing the material it became clear that eight to ten pages of ballots of the Opposition Group had disappeared. Bill Fiske, of Corporate Communications, Inc., the solicitor for Summit, acknowledged that he had followed the same procedure that Susan Trenham had followed and that he had copies of the same ADP ballots, and that excluding the Dean Witter, Merrill Lynch, Prudential Bache, and Paine Webber votes, and certificate shareholder votes, he had calculated them in the same manner and with the same total as Trenham. The certified copies of the four brokerage firm ballots had not been delivered through ADP and Fiske did not have copies of those ballots. THE POLLERS TOOK THE POSITION THAT THE BALLOTS WERE NEVER DELIVERED TO THEM. The dispute over the counting of the Kennedy Capital votes in particular had occurred three times during the week of July 12. Kennedy had repeatedly told Trenham that they had voted their shares against the merger but they did not show up in the numbers reported to Trenham. Finally, on Wednesday, July 10, 1996, Trenham demanded a conference call between ADP and Kennedy wherein Kennedy stated to ADP that they had voted against the merger. ADP stated to Kennedy that Institutional Investor Services had electronically registered Kennedy's 2 vote in favor of the merger. Kennedy got in touch with Institutional Investors who asked Kennedy to fax whether they were "For or Against" the Opposition Group (not for or against the merger). Kennedy stated that they were for the Opposition Group. ISS, a second time, registered the vote "For" the merger. Finally, on Thursday, July 11, Kennedy faxed their vote against the merger directly to ADP and it was registered. Trenham commented, "We know that Funston Asset Management also voted 109,000 shares against the merger (and perfected their dissenter's rights) and that did not show up anywhere in the reporting from ADP or the other brokerage firms. Although Trenham had been advised repeatedly that no institution would be allowed to register their vote electronically, Trenham was advised on July 11 that ISS had, in fact, electronically registered the votes of their institutions, all in favor of the merger, on June 24, 1996, prior to the release of the Opposition Group's proxy material. Thus, as of July 11, the Opposition Group realized that approximately twenty-five institutions had been voted electronically, representing more than one million votes, even though ADP had stated to her that institutions were not allowed to vote electronically in a proxy contest. It is not clear at this time whether they were automatically cast or whether they actually registered the votes. At 7:00 a.m. on July 12, Susan Trenham spoke with Jill Lyons, Director of Research at Institutional Stock Services, Inc. who expressed concern and anger over what had occurred in the voting process. Lyons stated that both the Company and ADP are supposed to notify ISS when there is a contested proxy. She stated that the Assistant Director of Research prepared a report on June 19th based on an uncontested proxy and made a recommendation in favor of the merger. David Pertl, Chief Financial Officer of Summit, acknowledged that he had received a telephone call on July 11, 1996, from ISS stating that they were upset that Summit had not advised that it was a contested proxy. None of the Opposition Group's proxy material was ever sent to the institutions and the institutions were not notified that it was a contested proxy. The Opposition Group estimates that the institutions shares represented about 1.3 million of the vote. Prior to last week the Opposition Group had had a running battle with Summit over shareholder information to which it was legally entitled. Summit had demanded that Susan Trenham get a notarized statement of the purpose before releasing the shareholder list and then initially only provided half of the list--saying there had been a mistake in the printing of the list. Following the printing and distribution of the Opposition Group's proxy material, Summit notified Trenham that Summit had failed to disclose 1,000 employees who held shares in Summit's ESOP and refused to send the Opposition Group's second proxy card to the employees. Trenham has already registered a complaint with regulators that Summit lied to shareholders in their proxy material about her representation of clients and she is considering a lawsuit for defamation, invasion of privacy, and casting in a false light. Summit made a partial retraction in its final proxy materials but did not correct its overall statements about either Susan Trenham or Noble Trenham. Trenham acknowledged that attorneys are being consulted at this time as to whether the group will seek a temporary restraining order to stop the merger until the matter is sorted out. 3 Under the merger agreement, CKE may choose not to complete the merger if more than ten percent of shareholders perfected Dissenter's rights. Kennedy Capital Management, Inc, T. H. Fitzgerald, Funston Asset Management, and Susan Broberg, among others, perfected their dissenters rights, representing more than ten percent of the votes. It is not known at this time whether CKE will complete the merger. ####### 4 -----END PRIVACY-ENHANCED MESSAGE-----