FRS

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D. C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of

the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): August 24, 2015

 

FRISCH’S RESTAURANTS, INC.

(Exact name of registrant as specified in its charter)

 

OHIO		001-07323		31-0523213
(State or other jurisdiction		(Commission		(I.R.S. Employer
of incorporation)		File Number)		Identification No.)

 

2800 GILBERT AVENUE, CINCINNATI, OHIO		45206
(Address of principal executive offices)		(Zip Code)

 

Registrant’s telephone number, including area code        513-961-2660       

 

(Former name or former address, if changed since last report.)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

INTRODUCTORY NOTE

 

The Merger

 

On August 24, 2015, pursuant to the Agreement and Plan of Merger (the “Merger Agreement”) between Frisch’s Restaurants, Inc. (the “Company”), FRI Holding Company, LLC., a Delaware limited liability company (“Parent”), and FRI Merger Sub, LLC an Ohio limited liability company and a wholly-owned subsidiary of Parent (“Merger Sub”), Merger Sub was merged with and into the Company (the “Merger”), with the Company continuing as the surviving corporation and a wholly-owned subsidiary of Parent.  The Merger Agreement and the transactions contemplated thereby were approved by the Company’s shareholders at a special meeting of shareholders on August 24, 2015 (the “Special Meeting”).

 

At the effective time (the “Effective Time”) and as a result of the Merger, each share of common stock of the Company (“Company Common Stock”) issued and outstanding immediately prior to the Merger was automatically converted into the right to receive $34.00 in cash (“Merger Consideration”) without interest.  All shares converted into the right to receive the Merger Consideration were automatically cancelled upon the conversion thereof and ceased to exist.

 

Furthermore, at the Effective Time and as a result of the Merger, each outstanding option to buy shares of Company Common Stock granted under the Company's stock option plans, whether or not vested and exercisable, was cancelled.  The holder of each stock option cancelled shall receive from Parent or the surviving corporation an amount in cash (without interest, but net of applicable taxes), equal to the product of the number of shares of Company Common Stock subject to each option as of the Effective Time, multiplied by the excess, if any, of $34.00 over the exercise price per share of Company Common Stock subject to such option.  

 

The descriptions contained in this Current Report on Form 8-K of the Merger Agreement and the transactions contemplated thereby are not complete and are qualified in their entirety by the full and complete text of the Merger Agreement, which is incorporated by reference herein as Exhibit 2.1.

 

Item 1.01 Entry into a Material Definitive Agreement

 

The Sale-Leaseback Transaction

 

On April 3, 2015, the Company entered into an Agreement for Real Estate Purchase and Sale Contract and the Unitary Master Lease Agreement (collectively, the “Sale Leaseback Agreement”) among the Company, Strategic Financial Intermediation LLC (“Seller”), with the Parent as guarantor, and a certain independent third-party institutional investor (“Purchaser”). Under the terms of the Sale Leaseback Agreement, the Seller purchased certain real properties from the Company for approximately $167 million and simultaneously sold the properties to the Purchaser. In addition, the Purchaser, as landlord, leased all of the subject real properties back to the Company, as tenant, pursuant to a form of lease prescribed by the Sale Leaseback Agreement.

 

Item 1.02.  Termination of a Material Definitive Agreement

 

On August 24, 2015, in connection with the consummation of the Merger, the Company terminated the Loan Agreement, dated October 31, 2013, by and between the Company and U.S. Bank National Association upon payment of the commitment fee owed for the unused portion of the loan commitment through the Effective Time.

 

Item 2.01.  Completion of Acquisition or Disposition of Assets

 

The information set forth under the heading “Introductory Note” and Item 1.01 hereof are incorporated herein by reference.

 

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off Balance Sheet Arrangement of a Registrant

 

The information set forth in Item 1.01 hereof is incorporated herein by reference.

 

 

Item 3.01.  Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing

 

On August 24, 2015, the Company notified the New York Stock Exchange (“NYSE”) that the Merger was consummated. In addition, on August 25, 2015, the Company anticipates that the NYSE will file a delisting application on Form 25 with the Securities and Exchange Commission (“SEC”) to report the delisting of the Company’s Common Stock from the NYSE MKT.

 

Item 3.03.  Material Modifications to Rights of Security Holders

 

On August 24, 2015, as a result of the Merger, each share of the Company’s Common Stock issued and outstanding immediately prior to the Effective Time (other than those shares held by shareholders, if any, who properly exercise their appraisal rights under Ohio law) was cancelled and automatically converted into the right to receive Merger Consideration of $34.00 in cash without interest.  Each share converted into the right to receive Merger Consideration ceased to have any rights with respect to such securities (other than their right to receive the Merger Consideration, as applicable), and forfeited any interest in the Company’s future earnings or growth. The information set forth under the heading “Introductory Note” relating to the Merger is incorporated herein by reference.

 

Item 5.01.  Changes in Control of Registrant

 

As a result of the Merger, a change in control of the Company occurred, and the Company is now a wholly-owned subsidiary of Parent.  NRD Partners I, L.P (the “Fund”) owns all voting interests in Parent.  The aggregate purchase price paid by Parent in connection with the Merger was approximately $174.5 million. Parent funded the Merger Consideration and certain Merger-related expenses through approximately $15.0 million in equity commitment from the Fund and $165.0 million in proceeds from the Sale Leaseback Agreement.

 

The information set forth under the “Introductory Note” and Items 1.01, 2.03 and 5.02 hereof are incorporated herein by reference.

 

Item 5.02.  Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

 

At the Effective Time, all members of the board of directors of the Company voluntarily resigned. At the Effective Time, the board of directors included the following individuals: Daniel W. Geeding, Jerome P. Montopoli, Dale P. Brown, Lorrence T. Kellar, William J. Reik, Jr., Robert J. Dourney, Donald H. Walker, Craig F. Maier, and Karen F. Maier. At the Effective Time, Craig F. Maier, President and Chief Executive Officer of the Company, and Karen F. Maier, the Company’s Vice President of Marketing, announced their immediate retirement and resigned their positions from the Company.

 

At the Effective Time, Aziz Hashim was appointed the sole director of the Company until the next annual election of directors. At the Effective Time, Mr. Hashim was also appointed as the President, Chief Executive Officer and Secretary of the Company. Mr. Hashim is 48 years old. Mr. Hashim also controls operation of the Fund, and certain affiliates and subsidiaries of the Fund. Mr. Hashim is also the Managing Member of NRD Holdings, LLC, and various other companies formed to operate quick-service restaurant locations, which collectively have grown to one of the top 200 franchise operators in the U.S. Mr. Hashim brings to the Company demonstrated management, operational and leadership ability, and has been nationally recognized for expertise in the foodservice and franchising industry. Mr. Hashim serves on several boards including the Executive Committee of the International Franchise Association (IFA) where he will become Chairman in 2016, The Board of Advisors at the J. Mack Robinson College of Business at Georgia State University, BB&T Bank Regional Advisory Board, and was the Chairman of the 2014 Multi-Unit Franchise Conference.

 

Item 5.03.  Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

 

In connection with the consummation of the Merger and in accordance with the terms of the Merger Agreement, the Company’s Articles of Incorporation and its Code of Regulations were amended, effective August 24, 2015. Copies of the Amended and Restated Articles of Incorporation and Amended and Restated Code of Regulations of the Company are attached as Exhibits 3.1 and 3.2 hereto and are incorporated herein by reference.

 

 

Item 5.07.  Submission of Matters to Vote of Security Holders

 

On August 24, 2015, the Company convened the Special Meeting with respect to the matters set forth below.  A description of the proposals and the final vote results are as follows:

 

(1)

Merger Proposal. To consider and vote upon the proposal to adopt the Merger Agreement, pursuant to which (i) Merger Sub will be merged with and into the Company, with the Company continuing as the surviving corporation and becoming a wholly-owned subsidiary of Parent, and (ii) each share of Company Common Stock issued and outstanding immediately prior to the Merger, other than those shares held by stockholders, if any, who properly exercise their appraisal rights under Ohio law and any shares held in the Company's treasury, will be converted into the right to receive $34.00 in cash without interest.  The tabulated results are shown below:

 

For		Against		Abstain		Broker Non-Votes
3,455,192		760,445		1,114		—

  

(2)

Advisory Vote on Executive Compensation. To consider and vote upon a proposal to approve, on a nonbinding, advisory basis, certain compensation that will be paid by Frisch’s to certain named executive officers of the Company, as was disclosed in the Company’s Definitive Proxy Statement in connection with the Merger. The tabulated results are shown below:

 

For		Against		Abstain		Broker Non-Votes
3,309,067		902,885		4,799		—

 

(3)

Adjournment Proposal. To consider and vote upon the proposal to adjourn the Special Meeting, if necessary or appropriate, for the purpose of soliciting additional proxies in favor of the Merger if there are insufficient votes at the time of the Special Meeting to approve the proposal to adopt the Merger Agreement. The tabulated results are shown below:

 

For		Against		Abstain		Broker Non-Votes
3,418,070		795,118		3,563		—

  

Item 8.01.  Other Events

 

On August 24, 2015, the Company issued a news release announcing the completion of the Merger. A copy of the news release is attached hereto as Exhibit 99.1 and incorporated herein by reference.

  

Item 9.01.  Financial Statements and Exhibits

 

(d)  Exhibits

 

Exhibit No.		Description
2.1		Agreement and Plan of Merger, dated May 21, 2015, by and among Frisch’s Restaurants, Inc., FRI Holdings Company, LLC and FRI Merger Sub, LLC. Incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed May 22, 2015.
3.1		Amended and Restated Articles of Incorporation of the Company dated as of August 24, 2015.
3.2		Amended and Restated Code of Regulations of the Company dated as of August 24, 2015.
99.1		News Release issued by Frisch’s Restaurants, Inc. on August 24, 2015.

 

 

Safe Harbor Statement

 

Except for the historical matters contained herein, statements in this current report, and the information incorporated by reference herein, are forward-looking and are made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. Investors are cautioned that forward-looking statements involve risks and uncertainties that may affect the business and prospects of the Company, including, without limitation: risks related to the Company's business strategy, and marketing programs; risks related to the Company's ability to operate successfully in the current challenging economic environment; risks related to the Company's efforts to strengthen its name recognition and concept; and other risks and uncertainties that may cause results to differ materially from those set forth in the forward-looking statements. Past performance may not be indicative of future results. Although the Company believes the expectations reflected in such forward-looking statements are based upon reasonable assumptions, there can be no assurance that its expectations will be realized. In addition to the risks and uncertainties set forth above, investors should consider the risks and uncertainties discussed in the Company's filings with the Securities and Exchange Commission, including, without limitation, the risks and uncertainties discussed under the heading "Risk Factors" in such filings. The Company does not undertake any obligation to publicly update any forward-looking statement to reflect events or circumstances after the date on which any such statement is made or to reflect the occurrence of unanticipated events.

 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

	FRISCH’S RESTAURANTS, INC.
	(registrant)

 

DATE	August 24, 2015
			BY	/s/ Mark R. Lanning
				Mark R. Lanning
				Vice President and Chief Financial Officer,
				Principal Financial Officer and
				Principal Accounting Officer

 

 

Exhibit 3.1

 

AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

of

 

frisch’s restaurants, inc.

 

Article I
NAME

 

The name of the corporation is “Frisch’s Restaurants, Inc.” (the “Corporation”).

 

Article II
PRINCIPAL PLACE OF BUSINESS

 

The place in Ohio where the principal office of the Corporation is to be located is Cincinnati, Hamilton County, Ohio.

 

Article III
PURPOSES

 

The Corporation is formed to engage in any lawful act or activity for which corporations may be formed under Sections 1701.01 to 1701.98, inclusive, of the Ohio Revised Code and any amendments heretofore or hereafter made thereto.

 

Article IV
AUTHORIZED STOCK

 

The number of shares which the Corporation is authorized to have issued and outstanding is 1,000 shares of common stock with no par value (hereinafter designated “Common Stock”).  Except as otherwise provided in these Amended and Restated Articles of Incorporation, the shares of Common Stock shall be in all respects identical, and the holders thereof shall be entitled to participate in any dividend, reclassification, merger, consolidation, reorganization, recapitalization, liquidation, dissolution or winding up of the affairs of the Corporation, share for share, without priority or other distinction. No shareholder shall have any pre-emptive or other right to subscribe for, purchase or acquire shares of Common Stock, or any securities convertible into share of Common Stock or evidencing or accompanied by any right to subscribe for, purchase or acquire shares of Common Stock.

 

Article V
VOTING

 

Each share of Common Stock shall entitle the holder thereof to one vote, in person or by proxy, at any and all meetings of the shareholders of the Corporation, on all propositions before such meetings. Notwithstanding any provision of the Ohio Revised Code, now or hereafter in force, requiring for any purpose the vote or consent of the holders of two-thirds (2/3) or any other proportion of the voting power of the Corporation, such action, unless otherwise expressly required by these Amended and Restated Articles of Incorporation, may be taken by the vote or consent of the holders of a majority of the voting power of the Corporation.

 

 

Article VI
ANNUAL MEETING OF SHAREHOLDERS

 

The annual meeting of the shareholders of the Corporation shall be held at such time as may be fixed in the Code of Regulations of the Corporation. Any meeting of shareholders, annual or special, may be held in or outside of the State of Ohio. Reasonable notice of all meetings of shareholders shall be given, by mail or publication or as prescribed by the Code of Regulations of the Corporation.

 

Article VII
DIVIDENDS

 

Each share of Common Stock shall be entitled to participate equally in such dividends as may be declared by the board of directors out of funds legally available therefor, and to participate equally in all distributions of assets upon liquidation.

 

Article VIII
DISTRIBUTION OF ASSETS

 

In the event of the voluntary or involuntary liquidation, dissolution or winding up of the Corporation, holders of Common Stock will be entitled to receive all of the remaining assets of the Corporation available for distribution to its shareholders, on a pro rata basis.

 

Article IX
PURCHASE OF STOCK

 

Any provision hereof to the contrary notwithstanding, the Corporation shall have the power upon the affirmative vote of a majority of its Board of Directors to purchase, to hold, to sell and to transfer shares of its own capital stock.

 

Article X
APPLICABLE LAW

 

Any and every statute of the State of Ohio hereafter enacted, whereby the rights, powers or privileges of corporations or of the shareholders of corporations organized under the laws of the State of Ohio are increased or diminished or in any way affected, or whereby effect is given to the action taken by any number, less than all, of the shareholders of any such corporation, shall apply to the Corporation and shall be binding not only upon the Corporation but upon every shareholder of the Corporation to the same extent as if such statute had been in force at the date of filing these Amended and Restated Articles of Incorporation in the office of the Secretary of State of the State of Ohio.

 

 

If any provision or provisions of these Amended and Restated Articles of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (i) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of these Amended and Restated Articles of Incorporation (including, without limitation, each portion of any paragraph of these Amended and Restated Articles of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby, and (ii) to the fullest extent possible, the provisions of these Amended and Restated Articles of Incorporation (including, without limitation, each such portion of any paragraph of these Amended and Restated Articles of Incorporation containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith service to or for the benefit of the Corporation to the fullest extent permitted by law.

 

Article XI
amendment

 

The Corporation reserves the right to amend or repeal any provisions contained in these Amended and Restated Articles of Incorporation or any amendment thereof from time to time and at any time in the manner now or hereafter prescribed by the laws of the State of Ohio, and all rights conferred upon shareholders and directors are granted subject to such reservation.

 

Article XII
PREVIOUS ARTICLES SUPERSEDED

 

These Amended and Restated Articles of Incorporation supersede any previous Articles of Incorporation of the Corporation filed with the Secretary of State of Ohio on October 30, 1985, and all amendments thereto.

 

 

Exhibit 3.2

 

AMENDED AND RESTATED CODE OF REGULATIONS

 

OF

 

FRISCH’S RESTAURANTS, INC.

 

ARTICLE I

SHAREHOLDERS

 

Section 1.01         Annual Meeting. The annual meeting of the shareholders of Frisch’s Restaurants, Inc. (the “Corporation”) for the purpose of electing directors and for the transaction of such other business as may properly be brought before the meeting shall be held on such date, and at such time, as may be designated from time to time by the Board of Directors of the Corporation (the “Board”).

 

Section 1.02         Special Meetings. Special meetings of the shareholders for any purpose or purposes may be called by the Chairperson of the Board (the “Chairperson”), the Chief Executive Officer, the President, by action at a meeting of the Board, or by a majority of the members of the Board of Directors acting with or without a meeting.

 

Section 1.03         Meetings.

 

(a)          Meetings of the shareholders may be held at the Corporation’s principal office in Cincinnati, Ohio, or at such other place within or without the State of Ohio, as the Board of Directors may from time to time determine.

 

(b)          Shareholders may participate in a meeting of shareholders by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting by such method shall constitute presence in person at such a meeting.

 

(c)          Notice of the annual or of any special meeting of shareholders, stating the time, place and purposes thereof, shall be given to each shareholder of record entitled to vote at such meeting, by personal delivery, by mail or by any other means of communication authorized by the shareholder at least seven (7) and not more than sixty (60) days before any such meeting; provided, however, that no failure or irregularity of notice of any annual meeting shall invalidate any proceeding at such meeting. If mailed, the notice shall be sent to the shareholder at the shareholder’s address as the same appears on the records of the Corporation. If sent by another means of communication authorized by the shareholder, the notice shall be sent to the address, including an electronic address, furnished by the shareholder for those transmissions. All notices with respect to any shares to which persons are jointly entitled may be given to that one of such persons who is named first upon the books of the Corporation and notice so given shall be sufficient notice to all the holders of such shares. Any shareholder, or his attorney thereunto authorized, may waive notice of any meeting either before or after the meeting.

 

 

Section 1.04         Quorum. The holders of a majority in voting power of the shares issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business, except as otherwise provided herein, by law or by the Articles of Incorporation of the Corporation, as amended (the “Articles”). If at any meeting of shareholders there shall be less than a quorum present, the chairperson of the meeting or the holders of a majority of the voting shares represented at the meeting may, to the extent permitted by law, adjourn the meeting without further notice other than announcement at the meeting of the date, time and place, if any, of the adjourned meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the original meeting.

 

Section 1.05         Proxies. Any shareholder entitled to vote at a meeting of shareholders may be represented and vote by proxy appointed by a writing or verifiable communication authorized by such shareholder, or by his duly authorized attorney, and submitted to the Secretary at or before such meeting.

 

Section 1.06         Action Without a Meeting. Any action that may be authorized or taken at a meeting of the shareholders may be authorized or taken without a meeting, in writing, with the affirmative vote or approval of all the shareholders who would be entitled to notice of a meeting of the shareholders held for such purpose, which writing or writings shall be filed with or entered upon the records of the Corporation.

 

ARTICLE II

BOARD OF DIRECTORS

 

Section 2.01         General Powers. The business, property and affairs of the Corporation shall be managed by the Board. The Board may adopt by-laws for their government and may exercise all powers and do all things as may be lawfully exercised and done by a corporation, subject to the Articles, these Regulations and Ohio law.

 

Section 2.02         Number. The number of directors may be established by the shareholders at any meeting of shareholders called to elect directors at which a quorum is present, by the affirmative vote of the holders of shares representing a majority of the voting power represented at the meeting. No reduction in the number of directors shall have the effect of removing any director prior to the expiration of his term of office.

 

Section 2.03         Election and Term of Office.  The election of directors shall be held at the annual meeting of the shareholders or at a special meeting called for that purpose. Directors shall be elected to serve until the next annual election of directors and until their respective successors shall have been duly elected and qualified.

 

Section 2.04         Chairperson. The Board may elect or appoint a Chairperson or Vice- Chairperson of the Board, who may or may not also be an officer of the Corporation.

 

 

Section 2.05         Meetings.

 

(a)          Regular meetings of the Board, including the annual meeting of the Board, shall be held at such time and place, within or without the State of Ohio, as determined by the Board.

 

(b)          Special meetings of the Board may be called at any time by the Chairperson, the Chief Executive Officer or by the President to be held at such time and place, within or without the State of Ohio, as shall be fixed by the person calling the meeting. Notice of each Special Meeting shall be mailed to each director, addressed to his residence or usual place of business, at least four days before the day on which the meeting is to be held, or shall be given by personal delivery, telephone, overnight courier, facsimile transmission, e-mail or other similar methods, not later than one day before the day on which the meeting is to be held. Notice of any meeting may be waived in writing by any director before or after the meeting.

 

(c)          The members of the Board or any committee thereof may participate in a meeting of such Board or committee, as the case may be, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting by such method shall constitute presence in person at such a meeting.

 

Section 2.06         Quorum.  A majority of the members of the Board then in office shall constitute a quorum at all meetings thereof. In the absence of a quorum of the Board, a majority of the members present may adjourn the meeting from time to time until a quorum is had, and no notice of any such adjournment need be given.

 

Section 2.07         Fees.  The Board may from time to time, irrespective of any personal interest of any of them, establish reasonable compensation for services to the Corporation by directors and officers. The Board may reimburse directors for travel and other expenses incidental to their attendance at meetings of the Board, and, from time to time, may prescribe reasonable annual directors’ fees or reasonable fees for their attendance at meetings of the Board.

 

Section 2.08         Nomination of Candidates for Election as Directors.

 

(a)          At a meeting of the shareholders at which directors are to be elected, only persons properly nominated as candidates will be eligible for election as directors. Candidates may be properly nominated either (i) by the Board or (ii) by any shareholder in accordance with subsection (b) of this Section.

 

(b)          For a shareholder properly to nominate a candidate for election as a director at a meeting of the shareholders, the shareholder must (i) be a shareholder of record at the time of the giving of the notice of the meeting and at the time of the meeting, (ii) be entitled to vote at the meeting in the election of directors, and (iii) have given written notice of the nomination to the Secretary at least thirty (30) days prior to the date of the meeting. A shareholder’s notice must set forth, as to each candidate, (i) the name, age, business address and residence of the candidate; (ii) the principal occupation or employment of the candidate; (iii) the written consent of the candidate; (v) the name and record address of the nominating shareholder; and, (vi) the number of shares and class of Common Stock beneficially owned, for at least one year, by the nominating shareholder. If the officer presiding at the meeting determines that one or more of the candidates has not been nominated in accordance with these procedures, he or she will so declare at the meeting, and the candidates will not be considered or voted upon at the meeting.

 

 

Section 2.09         Resignation and Removal. Any director may resign at any time upon delivery of written notice of such resignation, signed by such director, to the Board, the Chairperson or the Chief Executive Officer of the Corporation. Any director may be removed at any time by (i) the Board, or (ii) the vote of the holders of record of a majority of the outstanding voting shares of the Corporation, present in person or by proxy, voting as a single class, in accordance with Ohio law.

 

Section 2.10         Vacancies. Vacancies in the Board for any reason, including resulting from an increase by directors in the number of directors, may be filled by the remaining directors, by the vote of a majority of the remaining directors. A vacancy shall also be deemed to exist in case the shareholders increase the authorized number of directors but fail at the meeting at which such increase is authorized or in adjournment thereof, to elect the additional directors so provided for, or in the case the shareholders fail at any time to elect the whole authorized number of directors.

 

Section 2.11         Committees. The Board may from time to time establish one or more committees of the Board to serve at the pleasure of the Board, which committee or committees shall be comprised of such members of the Board and have such duties as the Board shall from time to time determine. Any director may belong to any number of committees of the Board. The Board may also establish such other committees with such members (whether or not directors) and with such duties as the Board may from time to time determine. The Board may designate one or more directors as alternate members of any committee, who may replace any absent member at any meeting of the committee. Unless otherwise provided in the Articles, these Regulations or the resolution of the Board designating the committee, a committee may create one or more subcommittees, each subcommittee to consist of one or more members of the committee, and delegate to a subcommittee any or all of the powers and authority of the committee. Each committee of the Board may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by the resolution of the Board designating such committee or the charter adopted by the Board for such committee. In the absence of such rules, each committee shall conduct its business in the same manner as the Board conducts its business pursuant to these Regulations.

 

Section 2.12         Action Without a Meeting. Any action that may be authorized or taken at a meeting of the Board may be authorized or taken without a meeting, in writing, with the affirmative vote or approval of the directors of the Board.

 

 

ARTICLE III

OFFICERS

 

Section 3.01         Officers.   The Board shall elect officers of the Corporation, including a President, Chief Executive Officer, Secretary and Treasurer. The Board may also from time to time elect such other officers as it may deem proper or may delegate to any elected officer of the Corporation the power to appoint and remove any such other officers and to prescribe their respective terms of office, authorities and duties. Any two (2) or more offices may be held by the same person, but no officer shall execute, acknowledge or verify any instrument in more than one capacity if such instrument is required by law, these Regulations or the Articles to be executed, acknowledged or verified by two or more officers.

 

Section 3.02         Election and Term of Office.  All officers of the Corporation shall be appointed annually by the Board at the first meeting of the Board of Directors in each year held next after the annual meeting of shareholders. All officers of the Corporation elected by the Board shall hold office for such terms as may be determined by the Board and until their respective successors are chosen and qualified, or until their earlier death, resignation or removal from office.

 

Section 3.03         Vacancies.  If any vacancy shall occur in any office of the Corporation, such vacancy shall be filled by the Board. In the case of absence or disability of any officer of the Corporation, or for any reason that may seem sufficient to the Board, the Board may delegate that officer’s powers and duties to any other officer, except as prohibited by law.

 

Section 3.04         Removal. Any officer may be removed from office at any time either with or without cause by the affirmative vote of a majority of the members of the Board then in office, or, in the case of appointed officers, by any elected officer upon whom such power of removal shall have been conferred by the Board.

 

Section 3.05         Powers and Duties. Each of the officers of the Corporation elected by the Board or appointed by an officer in accordance with these Regulations shall have the powers and duties prescribed by law, these Regulations, the Board and, in the case of appointed officers, the powers and duties prescribed by the appointing officer and, unless otherwise prescribed by these Regulations or by the Board or such appointing officer, shall have such further powers and duties as ordinarily pertain to that office. The Chief Executive Officer of the Corporation shall have authority over the general direction of the affairs of the Corporation, including, without limitation, the authority to appoint such non-elected officers and agents as the Chief Executive Officer deems advisable or appropriate in connection therewith. Unless otherwise provided in these Regulations, in the absence or disability of any officer of the Corporation, the Board may, during such period, delegate such officer’s powers and duties to any other officer of the Corporation or to any other person, and the person to whom such powers and duties are delegated shall, for the time being, hold such office.

 

 

Section 3.06         Compensation. The compensation of the Chief Executive Officer and President of the Corporation shall be fixed from time to time by the Board or any duly authorized committee thereof. Except to the extent otherwise required by applicable law or the rules and regulations applicable to the Corporation, the Chief Executive Officer of the Corporation shall fix compensation of all other officers and agents from time to time, or delegate such performance. An officer of the Corporation shall not be prevented from receiving compensation by reason of the fact that such officer is also a director of the Corporation, but any such officer who shall also be a director of the Corporation shall not have any vote in the determination of such officer’s compensation.

 

Section 3.07         Absence or Disability. In the case of absence or disability of any officer of the Corporation, or for any reason that may seem sufficient to the Board, the Board may delegate that officer’s powers and duties to any other officer, except as prohibited by law.

 

Section 3.08         Resignations. Any officer may resign at any time by giving written notice to the Board, the Chairperson of the Board, the Chief Executive Officer, the President or the Secretary of the Corporation. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

 

ARTICLE IV

INDEMNIFICATION

 

Section 4.01         Right to Indemnification. The Corporation shall indemnify each person who was or is a party or is threatened to be made a party to, or is or was involved or is threatened to be involved (as a deponent, witness or otherwise) in, any threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, arbitrative, administrative or investigative (including, without limitation, any threatened, pending or completed action, suit or proceeding by or in the right of the Corporation) (hereinafter a “Proceeding”), by reason of the fact that such person is or was a director or officer of the Corporation (hereinafter an “Indemnitee”), against all expenses (including, without limitation, attorneys’ fees, filing fees, court reporters’ fees, expert witnesses’ fees and transcript costs) (collectively “Expenses”), judgments, fines, excise taxes, penalties and amounts paid in settlement (collectively “Liabilities”) actually and reasonably incurred by the Indemnitee in connection with any Proceeding, unless and only to the extent that it is determined, as provided in Section 4.04 of this Article IV, that any such indemnification should be denied or limited. Notwithstanding the foregoing, except as to Proceedings under Section 4.06 of this Article IV, the Corporation shall not be required to indemnify an Indemnitee in connection with any Proceeding brought, initiated or otherwise asserted by the Indemnitee, unless the bringing, initiation or assertion of the claim in the Proceeding by the Indemnitee was authorized or ratified by the Board.

 

Section 4.02         Limits on Indemnification. Notwithstanding Section 4.01 of this Article IV, the Corporation shall not indemnify an Indemnitee (i) in such Indemnitee’s capacity as a director or officer of the Corporation in respect of any Proceeding in which the Indemnitee has been held liable to the Corporation for an act or omission undertaken by such Indemnitee in such capacity with deliberate intent to cause injury to the Corporation or with reckless disregard for the best interests of the Corporation, or (ii) in any Proceeding by or in the right of the Corporation in which liability is asserted pursuant to Section 1701.95 of the Ohio Revised Code against the Indemnitee, unless and only to the extent that the court of common pleas in the county in Ohio in which the principal office of the Corporation is located or the court in which a Proceeding is brought (a “Designated Court”) determines that the Indemnitee is fairly and reasonably entitled to such indemnity as the court shall deem proper.

 

 

Section 4.03         Indemnification for Expenses. Notwithstanding anything contained in this Article IV to the contrary, to the extent that an Indemnitee has been successful on the merits or otherwise in defense of any Proceeding or in defense of any claim, issue or matter asserted therein, the Indemnitee shall be promptly indemnified by the Corporation against all Expenses actually and reasonably incurred by Indemnitee in connection therewith.

 

Section 4.04         Determination. Any indemnification covered by this Article IV shall be timely paid by the Corporation unless and only to the extent that a determination is made that such indemnification shall be denied or limited (i) under Section 4.02 of this Article IV, or (ii) because the Indemnitee did not actually or reasonably incur the Expense to be indemnified. Each determination required or permitted by this Section 4.04 shall be made (a) by a majority vote of directors of the Corporation who were not and are not parties to or threatened with any such action, suit, or proceedings, or (b) by a vote of the shareholders, or (c) by a Designated Court. Any determination shall be promptly communicated to the Indemnitee within fifteen (15) days after receipt of such notification, upon which time such Indemnitee shall have the right to petition Designated Court to review the reasonableness of such determination.

 

Section 4.05         Advances for Expenses. The Expenses incurred by an Indemnitee in defending a Proceeding shall be paid by the Corporation in advance of the final disposition of such Proceeding at the request of the Indemnitee within thirty (30) days after the receipt by the Corporation of a written statement or statements from the Indemnitee requesting such advance or advances from time to time. Such statement or statements shall reasonably evidence the Expenses incurred by the Indemnitee in connection with the defense of the Proceeding and shall include or be accompanied by a written undertaking by or on behalf of such Indemnitee to repay such amount if it shall ultimately be determined that the Indemnitee is not entitled to be indemnified by the Corporation in respect of such Expenses.

 

Section 4.06         Right of Indemnitee to Bring Suit. If (i) a claim for indemnification under this Article IV is not paid in full by the Corporation within sixty (60) days after a written claim has been received by the Corporation, or (ii) a claim for advancement of Expenses under Section 4.05 of this Article IV is not paid in full by the Corporation within thirty (30) days after a written claim has been received by the Corporation, the Indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the Indemnitee shall be entitled to be indemnified for all the Expenses actually and reasonably incurred by the Indemnitee in prosecuting such claim in enforcing the Indemnitee’s rights under this Article IV.

 

 

Section 4.07         Not Exclusive. The indemnification provided by this Article IV shall not be exclusive of, and shall be in addition to, any other rights to which any person seeking indemnification may be entitled under the Articles, the Regulations, any agreement, a vote of shareholders or disinterested directors, or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, trustee, partner, member or manager and shall inure to the benefit of the heirs, executors and administrators of such a person.

 

Section 4.08         Insurance. The Corporation may purchase and maintain insurance, or furnish similar protection, including but not limited to trust funds, letters of credit, or self-insurance, for or on behalf of any person who is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee, partner, member, manager or agent of another Corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the obligation or the power to indemnify such person against such liability under the provisions of this Article IV. Insurance may be purchased from or maintained with a person in which the Corporation has a financial interest.

 

Section 4.09         Venue; Jurisdiction. Any action, suit or proceeding to determine a right to indemnification, or to repay Expenses, under this Article IV may be maintained by an Indemnitee claiming such indemnification or repayment, or by the Corporation only in a Designated Court. Each of the Corporation and, by claiming or accepting such indemnification, any such Indemnitee consents to the exercise of jurisdiction by a Designated Court in any such action, suit or proceeding.

 

ARTICLE V

CERTIFICATES FOR SHARES

 

Section 5.01         Issue of Certificates.  The Board shall provide for the issue and transfer of the certificates of capital stock of the Corporation, and prescribe the form of such certificates. The Board also may provide by resolution that some or all of any or all shares of the Corporation shall be uncertificated shares to the extent permitted by the Ohio law. Every owner of stock of the Corporation shall be entitled to a certificate of stock which shall be under the seal of the Corporation (which seal may be a facsimile, engraved or printed), specifying the number of shares owned by him, and which certificate shall be signed by the President or a Vice President and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer of the Corporation. Said signatures may, wherever permitted by law, be facsimile, engraved or printed.

 

 

Section 5.02         Lost, Stolen or Destroyed Certificates. The Corporation may direct that a new certificate be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon delivery to the Corporation of an affidavit of the owner or owners of such certificate, setting forth such allegation. The Corporation may require the owner of such lost, stolen or destroyed certificate, or his or her legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of any such new certificate.

 

Section 5.03         Transfer of Shares. The shares of the Corporation shall be transferable only upon its books and by the holders thereof in person or by their duly authorized attorneys or legal representatives, and, if issued in certificated form, upon such transfer the old certificates shall be surrendered to the Corporation by the delivery thereof to the person in charge of the stock and transfer books and ledgers or to such other person as the Board may designate for such purpose, and new certificates shall thereupon be issued.

 

Section 5.04         Registered Shareholders. Prior to due surrender of a certificate for registration of transfer or delivery of a request to transfer uncertificated shares, the Corporation may treat the registered owner of the shares as the person exclusively entitled to receive dividends and other distributions, to vote, to receive notices of meetings of shareholders and otherwise to exercise all the rights and powers of the owner of such shares, and the Corporation shall not be bound to recognize any equitable or legal claim to or interest in such shares on the part of any other person, whether or not the Corporation shall have notice of such interests.

 

Section 5.05         Transfer Agents and Registrars. The Corporation may have one or more transfer agents and one or more registrars of its stock, whose respective duties the Board may, from time to time, prescribe. If the Corporation shall have a transfer agent, no certificate of stock shall be valid until countersigned by such transfer agent, and if the Corporation shall have a registrar, until registered by the registrar.

 

ARTICLE VI

MISCELLANEOUS

 

Section 6.01         Corporate Books. The books and records of the Corporation shall be kept inside or outside of the State of Ohio at such place as the Board may determine.

 

Section 6.02         Amendments. These Regulations supersede and take the place of any heretofore existing Code of Regulations of the Corporation. These Regulations may be amended, altered, changed, added to or repealed in accordance with applicable provisions of the Ohio Revised Code and in any of the following ways: (i) by the shareholders at a meeting held for that purpose, by the affirmative vote of the holders of shares entitling them to exercise a majority of the voting power of the Corporation; (ii) without a meeting, by the written consent of the holders of shares entitling them to exercise two-thirds of the voting power of the Corporation on such proposal; or (iii) unless a provision of the Ohio Revised Code reserves such authority to the shareholders, by the directors, provided that no such amendment may divest shareholders of the power, or limit the shareholders’ power, to amend or repeal these Regulations.

 

 

Section 6.03         Severability. If any provision or provisions of these Regulations shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (i) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of these Regulations (including, without limitation, each portion of any section or paragraph of these Regulations containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (ii) to the fullest extent possible, the provisions of these Regulations (including, without limitation, each such portion of any section or paragraph of these Regulations containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith service to or for the benefit of the Corporation to the fullest extent permitted by law.

 

Section 6.04         Forum. Unless the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s shareholders, (iii) any action asserting a claim against the Corporation or any of its directors, officers or other employees alleging a violation of Corporate Matters, or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine, shall be a state or federal court located within the State of Ohio in all cases subject to the court having personal jurisdiction over the indispensable parties named as defendants. Any person or entity purchasing or otherwise acquiring any interest in shares of the Corporation shall be deemed to have notice of and consented to the provisions of this Article VII. “Corporate Matters” means the Ohio Revised Code, the Articles, and these Regulations.

 

 

 

Exhibit 99.1

 

 

FOR IMMEDIATE RELEASE

 

Frisch’s Restaurants, Inc. Announces the Completion of the Company’s Acquisition By NRD Partners I, L.P.

 

Cincinnati, Ohio – August 24, 2015 – The shareholders of Frisch’s Restaurants, Inc. (NYSE MKT: FRS) met today and approved a merger transaction with an affiliate of NRD Partners I, L.P. (“NRD”). As part of the transaction, each outstanding share of Frisch’s stock will be converted into the right to receive the $34.00 per share merger consideration, valuing the acquisition at approximately $174.5 million. Following today’s closing of the transaction, the Company’s shares will no longer trade on the NYSE MKT and will be formally delisted on September 4, 2015.

 

“This is an exciting day for Frisch’s and we are very pleased that our stockholders, through the exercise of their vote, have shown substantial support for the Board’s decision to accept NRD’s offer,” said Craig F. Maier, Frisch’s President and Chief Executive Officer.

 

Aziz Hashim, NRD’s Chief Executive Officer, said, “We are delighted to have the acquisition finalized and we are looking forward to taking one of America’s most iconic and adored family restaurant brands into a very bright future.”

 

About Frisch's Restaurants, Inc.

 

Frisch's is a regional company that operates full service family-style restaurants under the name "Frisch's Big Boy."  All Frisch’s Big Boy restaurants are currently located in various regions of Ohio, Kentucky and Indiana. The Company owns the trademark "Frisch's" and has exclusive, irrevocable ownership of the rights to the "Big Boy" trademark, trade name and service marks in the states of Kentucky and Indiana, and in most of Ohio and Tennessee.  All of the Frisch's Big Boy restaurants also offer "drive-thru" service.  The Company also licenses Big Boy restaurants to other operators, currently in certain parts of Ohio, Kentucky and Indiana.

 

About NRD Partners I, L.P.

 

NRD Partners I, L.P. (NRD) is a private equity fund founded by Aziz Hashim to fill a commonly perceived gap in franchise equity investing. NRD seeks to acquire brands that offer superior products and compelling unit economics and help them grow to their fullest potential through NRD's expanding network of franchisee investors. For more information, please visit www.nrdcapital.com

 

 

Cautionary Statement concerning Forward Looking Statements

 

Statements in this press release that are not descriptions of historical facts may be "forward-looking" statements within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended, and as defined in the U.S. Private Securities Litigation Reform Act of 1995. In some cases, these forward-looking statements may be identified by the use of words such as "may", "will", "expect", "plan", "anticipate", "believe", or "project", or the negative of those words or other comparable words. Any forward-looking statements included in this communication are made as of the date hereof only, based on information available to Frisch’s Restaurants, Inc. as of the date hereof, and subject to applicable law to the contrary. Frisch’s Restaurants, Inc. undertakes no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. Such forward-looking statements are subject to a number of risks, assumptions and uncertainties that could cause Frisch’s Restaurants, Inc.'s actual results to differ materially from those suggested by the projected information in such forward-looking statements. Such risks and uncertainties include, among others: any conditions imposed on the parties in connection with the consummation of the merger transactions described herein; adoption of the merger agreement by Frisch’s Restaurants, Inc.'s shareholders (or the failure to obtain such adoption); the ability to obtain regulatory approvals of the merger and the other transactions contemplated by the merger agreement on the proposed terms and schedule; Frisch’s Restaurants, Inc.'s ability to maintain relationships with customers, employees or suppliers following the announcement of the merger agreement and the transactions contemplated thereby; the ability of third parties to fulfill their obligations relating to the proposed transactions, including providing financing under current financial market conditions; the ability of the parties to satisfy the conditions to closing of the proposed transactions; the risk that the merger and the other transactions contemplated by the merger agreement may not be completed in the time frame expected by the parties or at all; and the risks that are described from time to time in Frisch’s Restaurants, Inc.'s reports filed with the Securities and Exchange Commission, including the Annual Report on Form 10-K for the fiscal year ended June 3, 2014, filed with the Securities and Exchange Commission on August 7, 2014, in other of Frisch’s Restaurants, Inc.’s filings with the Securities and Exchange Commission from time to time, including Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, and on general industry and economic conditions. Readers are cautioned not to place undue reliance on the forward-looking statements.

 

Company Contact:

Mark R. Lanning

Vice President – Finance and CFO

Frisch’s Restaurants, Inc.

2800 Gilbert Avenue

Cincinnati, OH 45206

(513) 559-5200

www.frischs.com

investor.relations@frischs.com

 

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