AGREEMENT
This Agreement, dated as of March 29, 2006 (this "Agreement"), is entered
into by and between Xxxxxx Xxxxxxx LLC, a Delaware limited liability company
("Xxxxxx Xxxxxxx"), and CKE Restaurants, Inc., a Delaware corporation (the
"Company").
WHEREAS, through funds and accounts for which it serves as general partner
and/or as investment advisor (the "Funds"), Xxxxxx Xxxxxxx beneficially owns an
aggregate of approximately 8.44% of the Company's outstanding common stock,
$0.01 par value per share ("Common Stock");
WHEREAS, Article II, Section 2.9(A) of the Company's Bylaws (as amended,
the "Bylaws") provides, in part, that business may be conducted at an annual
meeting of stockholders if brought before the meeting by a stockholder of record
whose written notice with respect to such business is delivered to and received
by the Secretary of the Company not less than 90 days before the date of the
meeting;
WHEREAS, Article II, Section 2.9(B) of the Bylaws provides, in part, that
nominations for the election of directors at an annual meeting of stockholders
may be made by a stockholder whose written notice of intent to make such
nominations has been delivered to the Secretary of the Company not later than 90
days before the date of the meeting (the "Pre-Meeting Date"); and
WHEREAS, Xxxxxx Xxxxxxx has inquired of the Company about the availability
of a Board seat for a person affiliated with the Funds, or funds similar to the
Funds and which have a significant ownership interest in the Company;
WHEREAS, the Company is receptive to such inquiry, under the appropriate
circumstances, as being a positive step for the Company to have such a person on
its Board, however, the Company is unable to complete the appropriate due
diligence of any such person prior to the Pre-Meeting Date;
WHEREAS, accordingly, the Company is desirous of granting to Xxxxxx
Xxxxxxx an extension of time to provide the requisite advance notice (the
"Notice") for a director to be nominated at the Company's 2006 annual meeting of
stockholders (including any special meeting held in lieu thereof or any
adjournments or postponements of such annual or special meeting, the "2006
Annual Meeting"), as provided in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein set forth
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:
1. TOLLING. Notwithstanding any provision to the contrary set forth in the
Bylaws, each of which is hereby waived by the Company, it is expressly agreed
that should Xxxxxx Xxxxxxx and/or one or more of the Funds provide the Notice at
any time on or prior to 5:00 p.m. (New York time) on April 15, 2006, (i) the
Notice shall be deemed timely for all purposes and neither the Company nor any
person acting on its behalf shall contest the timeliness thereof, (ii) should
the Company contest the validity of the Notice for any reason other than the
timeliness thereof, the Company shall provide the party delivering the Notice
with at least five business days to cure any such alleged defect after receipt
of written notice thereof, and (iii) the Company shall not hold the 2006 Annual
Meeting earlier than 70 days following receipt of the Notice.
2. REPRESENTATIONS AND WARRANTIES. Each of the Company and Xxxxxx Xxxxxxx
hereby represents and warrants with respect to itself as follows:
2.1 AUTHORITY RELATIVE TO THIS AGREEMENT. It has the full legal right
and power and all authority and approval required to enter into, execute
and deliver this Agreement and to perform fully its obligations hereunder.
This Agreement has been duly authorized, executed and delivered by it and
this Agreement constitutes the valid and binding obligation of it
enforceable against it in accordance with the terms hereof.
2.2 ABSENCE OF CONFLICTS. Its execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby and its
performance hereunder in accordance with the terms and conditions hereof
will not: (i) violate, conflict with or result in a breach of any provision
of its articles of incorporation, by-laws or comparable governing
documents, (ii) violate, conflict with or result in a breach of any
provision of or constitute a default (or an event that, with notice or
lapse of time or both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by, any contract or
other agreement to which it is a party or by or to which it is bound or
subject; or (iii) violate any judgment, ruling, order, writ, injunction,
award, decree, statute, law, ordinance, code, rule or regulation of any
court or foreign, federal, state, county or local government or any other
governmental, regulatory or administrative agency or authority that is
applicable to it.
3. GENERAL.
3.1 AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, modified, supplemented or terminated, and waivers or consents
to departures from the provisions hereof may not be given, without the
written consent of the Company and Xxxxxx Xxxxxxx.
3.2 NOTICES. All notices and other communications provided for or
permitted hereunder to any party shall be deemed to be sufficient if
contained in a written instrument and shall be deemed to have been duly
delivered when delivered in person, by facsimile, by nationally-recognized
overnight courier, or by first class registered or certified mail, postage
prepaid, addressed to such party at the address set forth below or such
other address as may hereafter be designated in writing by the addressee as
follows:
If to the Company, to:
CKE Restaurants, Inc.
0000 Xxxxxxxxxxx Xxxxxx, Xxx. X,
Xxxxxxxxxxx, Xxxxxxxxxx
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: C. Xxxxx Xxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to Xxxxxx Xxxxxxx, to:
Xxxxxx Xxxxxxx LLC
000 Xxxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All such notices, requests, consents and other communications shall be
deemed to have been delivered (i) in the case of personal delivery or delivery
by electronically confirmed facsimile, on the date of such delivery, (ii) in the
case of nationally-recognized overnight courier, on the next business day and
(iii) in the case of mailing, on the third business day following such mailing
if sent by certified mail, return receipt requested.
3.3 DESCRIPTIVE HEADINGS, ETC. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein. Unless the context of this Agreement
otherwise requires, as used herein: (i) words of any gender shall be deemed
to include each other gender; (ii) words
using the singular or plural number shall also include the plural or
singular number, respectively; (iii) the words "hereof", "herein" and
"hereunder" and words of similar import refer to this Agreement as a whole
and not to any particular provision of this Agreement; (iv) the word
"including" and words of similar import mean "including, without
limitation"; and (v) "or" is not exclusive. This Agreement may be executed
in two or more counterparts, each of which, when so executed and delivered,
shall be deemed to be an original, but all of which counterparts, taken
together, shall constitute one and the same instrument; provided that a
facsimile signature shall be considered due execution and shall be binding
upon the signatory thereto with the same force and effect as if the
signature were an original, not a facsimile signature. Each party hereto
acknowledges that it has had the benefit of legal counsel of its own choice
and has been afforded an opportunity to review this Agreement with its
legal counsel and that this Agreement shall be construed as if jointly
drafted by the parties.
3.4 SEVERABILITY. In the event that any one or more of the provisions,
paragraphs, words, clauses, phrases or sentences contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability thereof in every other respect and of the other remaining
provisions, paragraphs, words, clauses, phrases or sentences hereof shall
not be in any way impaired, it being intended that all rights, powers and
privileges of the parties hereto shall be enforceable to the fullest extent
permitted by law.
3.5 GOVERNING LAW; SPECIFIC PERFORMANCE. This Agreement shall be
governed by and construed in accordance with the internal laws of the State
of Delaware (without reference to its choice of law rules). The parties
agree that irreparable damage would occur in the event that the provisions
of this Agreement were not performed in accordance with their specific
terms. Accordingly, it is agreed that either party shall be entitled to an
injunction or injunctions to enforce specifically the terms and provisions
hereof in any court of the United States or any state having jurisdiction
without the posting of a bond or other security, this being in addition to
any other remedy to which such party is entitled at law or in equity.
3.6 ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of and a complete and exclusive statement of their
agreement and understanding in respect of the subject matter contained
herein. There are no restrictions, promises, representations, warranties,
covenants or undertakings relating to such subject matter, other than those
set forth or referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such
subject matter.
[Remainder of page intentionally left blank. Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
XXXXXX XXXXXXX LLC
By: /s/ Xxxxxx X. Xxxxxx Xx.
------------------------
Name: Xxxxxx X. Xxxxxx Xx.
Title: Managing Member
CKE RESTAURANTS, INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------
Name: Xxxxxxx Xxxxxx
Title: Executive Vice President
