Exhibit 18
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STOCKHOLDERS AGREEMENT
dated as of February 28, 2001
by and among
QUALITY DINING, INC.
NBO, LLC,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
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and
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TABLE OF CONTENTS
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This Table of Contents is not part of the Stockholders
Agreement to which it is attached but is inserted for convenience only.
Page
No.
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ARTICLE I DEFINITIONS 1
1.01 Definitions........................................................................................1
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ARTICLE II STANDSTILL 4
2.01 Standstill.........................................................................................4
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ARTICLE III REPRESENTATIONS AND WARRANTIES OF NBO 5
3.01 Incorporation......................................................................................5
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3.02 Authority..........................................................................................5
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3.03 No Conflicts.......................................................................................5
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3.04 Governmental Approvals and Filings.................................................................6
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3.05 Common Stock Ownership.............................................................................6
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE SCHOSTAKS 6
4.01 Authority..........................................................................................6
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4.02 No Conflicts.......................................................................................6
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4.03 Governmental Approvals and Filings.................................................................7
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4.04 Common Stock Ownership.............................................................................7
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ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY 7
5.01 Incorporation......................................................................................7
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5.02 Authority..........................................................................................7
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5.03 No Conflicts.......................................................................................8
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5.04 Governmental Approvals and Filings.................................................................8
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ARTICLE VI GENERAL PROVISIONS 8
6.01 Survival of Representations, Warranties, Covenants and Agreements..................................8
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6.02 Termination........................................................................................9
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6.03 Amendment and Waiver...............................................................................9
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6.04 Notices.9
6.05 Entire Agreement..................................................................................10
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6.06 No Third Party Beneficiary........................................................................10
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6.07 No Assignment; Binding Effect.....................................................................10
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No.
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6.08 Specific Performance; Legal Fees..................................................................11
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6.09 Headings..........................................................................................11
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6.10 Invalid Provisions................................................................................11
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6.11 Governing Law.....................................................................................11
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6.12 Consent to Jurisdiction and Service of Process....................................................11
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6.13 Counterparts......................................................................................12
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This STOCKHOLDERS AGREEMENT dated as of February 28, 2001 is
made and entered into by and among Quality Dining, Inc., an Indiana corporation
(the "Company"), NBO, LLC, a Michigan limited liability company ("NBO"), ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
(collectively, the "Schostaks" and together with NBO the "Stockholders").
WHEREAS, NBO beneficially owns 1,159,014 shares of common
stock, no par value, of the Company (the "Common Stock");
WHEREAS, the Company and NBO have entered into a Purchase and
Sale Agreement of even date herewith (the "Purchase Agreement"), pursuant to
which NBO will acquire four Burger King stores in the Detroit, Michigan area
currently owned and operated by the Company (the "Restaurants") in exchange for
785,000 shares of Common Stock and certain cash adjustments;
WHEREAS, NBO and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇▇▇"), on
behalf of an entity to be formed by him, have entered into a Stock Sale
Agreement of even date herewith (the "Sale Agreement"), pursuant to which NBO
will sell and ▇▇▇▇▇▇▇▇▇▇▇ will buy 374,014 shares of Common Stock on the Closing
Date (as defined below);
WHEREAS, as a condition to the Company's willingness to enter
into the Purchase Agreement, the Company desires to establish in this
Stockholders Agreement certain terms and conditions concerning the acquisition
and disposition of securities of the Company by the Stockholders and the
corporate governance of the Company;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Stockholders Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01 Definitions. (a) Except as otherwise specifically
indicated, the following terms have the following meanings for all purposes of
this Stockholders Agreement:
"beneficially owns" (or comparable variations thereof) has the
meaning set forth in Rule 13d-3 promulgated under the Exchange Act.
"BKC" means Burger King Corporation.
"Board of Directors" means the Board of Directors of the
Company.
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"Closing Date" means the date on which the purchase and sale
of the Restaurants contemplated by the Purchase Agreement is closed.
"Equity Securities" means Voting Securities, Convertible
Securities and Rights to Purchase Voting Securities.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Governmental or Regulatory Authority" means any court,
tribunal, arbitrator, authority, agency, commission, official or other
instrumentality of the United States, any foreign country or any domestic or
foreign state, county, city or other political subdivision.
"IBCL" means the Indiana Business Corporation Law.
"Lien" means any lien, claim, mortgage, encumbrance, pledge,
security interest, equity or charge of any kind.
"Person" means any individual, corporation, partnership,
trust, limited liability company, other entity or group (within the meaning of
Section 13(d)(3) of the Exchange Act).
"Representatives" of any Person means (where applicable) such
Person's directors, officers, partners, members, employees, legal, investment
banking and financial advisors, accountants and any other agents and
representatives of such Person.
"Restricted Group" means (i) the Stockholders, (ii) any and
all Persons directly or indirectly controlled by or under common control with
any Stockholder, (iii) if any Stockholder is an individual, (a) any member of
such Stockholder's family (including any spouse, parent, sibling, child,
grandchild or other lineal descendant, including adoptive children), (b) the
heirs, executors, personal representatives and administrators of any of the
foregoing persons, (c) any trust established for the benefit of any of the
foregoing persons and (d) any charitable foundations established by any of the
foregoing persons, and (iv) any and all groups (within the meaning of Section
13(d)(3) of the Exchange Act) of which any Stockholder or any Person directly or
indirectly controlling, controlled by or under common control with such
Stockholder is a member.
"Right of First Refusal" means the right of first refusal of
BKC to purchase the Restaurants under the franchise agreements applicable to the
Restaurants.
"Rule 144" means Rule 144 promulgated under the Securities
Act, or any successor provision.
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"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Termination Date" means (a) ten (10) years from the Closing
Date if there is a Closing under the Purchase Agreement, (b) two (2) years from
the date BKC purchases any Restaurant if it exercises its Right of First Refusal
or (c) the date of termination of the Purchase Agreement if it is terminated
prior to a Closing.
"Voting Power" means, with respect to any Outstanding Voting
Securities, the highest number of votes that the holders of all such Outstanding
Voting Securities would be entitled to cast for the election of directors or on
any other matter (except to the extent such voting rights are dependent upon
events of default or bankruptcy), assuming, for purposes of this computation,
the conversion or exchange into Voting Securities of Convertible Securities
(whether presently convertible or exchangeable or not) and the exercise of
Rights to Purchase Voting Securities (whether presently exercisable or not), in
either case to the extent that any such action would increase the number of such
votes.
"Voting Securities" means the Common Stock and any other
securities of the Company of any kind or class having power generally to vote
for the election of directors; "Convertible Securities" means securities of the
Company which are convertible or exchangeable (whether presently convertible or
exchangeable or not) into Voting Securities; "Rights to Purchase Voting
Securities" means options and rights issued by the Company (whether presently
exercisable or not) to purchase Voting Securities or Convertible Voting
Securities; and "Outstanding Voting Securities" means at any time the then
issued and outstanding Voting Securities, Convertible Securities (which shall be
counted at the maximum number of Voting Securities for which they can be
converted or exchanged) and Rights to Purchase Voting Securities (which shall be
counted at the maximum number of Voting Securities for which they can be
exercised).
(b) In addition, the following terms are defined in the
Sections set forth below:
"Common Stock" -- Preamble
"Company" -- Preamble
"▇▇▇▇▇▇▇▇▇▇▇" Preamble
"NBO" Preamble
"Purchase Agreement" -- Preamble
"Restaurants" Preamble
"Sale Agreement" -- Preamble
"Schostaks" -- Preamble
"Shares" -- Section 3.05
"Stockholders" -- Preamble
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(c) Unless the context of this Stockholders Agreement otherwise
requires, (i) words of any gender include each other gender; (ii) words using
the singular or plural number also include the plural or singular number,
respectively; (iii) the terms "hereof," "herein," "hereby" and derivative or
similar words refer to this entire Stockholders Agreement; and (iv) the terms
"Article" or "Section" refer to the specified Article or Section of this
Stockholders Agreement. Whenever this Stockholders Agreement refers to a number
of days, such number shall refer to calendar days unless business days are
specified.
ARTICLE II
STANDSTILL
2.01 Standstill. (a) From the date of this Stockholders
Agreement until the earlier of the date of termination of the Purchase Agreement
prior to Closing or ten (10) years after the Closing Date if a Closing occurs,
no member of the Restricted Group will, and they will not assist or encourage
any other Person (including by providing financing) to, directly or indirectly,
(i) acquire or agree, offer, seek or propose (whether publicly or otherwise) to
acquire ownership (including but not limited to beneficial ownership) of any
substantial portion of the assets (other than the purchase of the Restaurants
contemplated by the Purchase Agreement or other restaurants that the Company may
determine to sell from time to time) or Equity Securities of the Company,
whether by means of a negotiated purchase of assets, tender or exchange offer,
merger or other business combination, recapitalization, restructuring or other
extraordinary transaction, (ii) engage in any "solicitation" of "proxies" (as
such terms are used in the proxy rules promulgated under the Exchange Act, but
disregarding clause (iv) of Rule 14a-1(1)(2) and including any exempt
solicitation pursuant to Rule 14a-2(b)(1) or (2)), or form, join or in any way
participate in a "group" (as defined under the Exchange Act), (iii) otherwise
act, alone or in concert with others, to seek to control or influence the
management, Board of Directors or policies of the Company, (iv) take any action
that could reasonably be expected to force the Company to make a public
announcement regarding any of the types of matters referred to in clause (i),
(ii) or (iii) above, or (v) enter into any discussions, negotiations,
agreements, arrangements or understandings with any third party with respect to
any of the foregoing. No member of the Restricted Group will request the Company
or any of its Representatives to amend or waive any provision of this Section
2.01(a) (including this sentence) during such period. This Section 2.01(a) will
not apply in the event BKC purchases any Restaurant after exercising its Right
of First Refusal.
(b) From the date that BKC purchases any Restaurant after
exercising its Right of First Refusal until the Termination Date, no member of
the Restricted Group will, and they will not assist or encourage any other
Person (including by providing financing) to, directly or indirectly, (i)
acquire or agree, offer, seek or propose (whether publicly or otherwise) to
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acquire ownership (including but not limited to beneficial ownership) of any
substantial portion of Equity Securities of the Company by means of a tender or
exchange offer, merger or other business combination, recapitalization,
restructuring or other extraordinary transaction, (ii) engage in any
"solicitation" of "proxies" (as such terms are used in the proxy rules
promulgated under the Exchange Act, but disregarding clause (iv) of Rule
14a-1(1)(2) and including any exempt solicitation pursuant to Rule 14a-2(b)(1)
or (2)), or form, join or in any way participate in a "group" (as defined under
the Exchange Act), (iii) otherwise act, alone or in concert with others, to seek
to control or influence the management, Board of Directors or policies of the
Company, (iv) take any action that could reasonably be expected to force the
Company to make a public announcement regarding any of the types of matters
referred to in clause (i), (ii) or (iii) above, or (v) enter into any
discussions, negotiations, agreements, arrangements or understandings with any
third party with respect to any of the foregoing. No member of the Restricted
Group will request the Company or any of its Representatives to amend or waive
any provision of this Section 2.01(b) (including this sentence) during such
period.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF NBO
NBO hereby represents and warrants to the Company as follows:
3.01 Incorporation. NBO is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Michigan. NBO has the requisite power and authority to execute and deliver this
Stockholders Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby.
3.02 Authority. The execution and delivery by NBO of this
Stockholders Agreement, and the performance by NBO of its obligations hereunder,
have been duly and validly authorized by NBO , no other action on the part of
NBO or its members being necessary. This Stockholders Agreement has been duly
and validly executed and delivered by NBO and constitutes a legal, valid and
binding obligation of NBO in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
3.03 No Conflicts. The execution and delivery by NBO of this
Stockholders Agreement do not, and the performance by NBO of its obligations
under this Stockholders Agreement and the consummation of the transactions
contemplated hereby will not:
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(a) conflict with or result in a violation or breach of any of
the terms, conditions or provisions of the limited liability company agreement
or other organizational documents or instruments of NBO;
(b) conflict with or result in a violation or breach of any
term or provision of any law, statute, rule or regulation or any order, judgment
or decree of any Governmental or Regulatory Authority applicable to NBO or any
of its properties or assets; or
(c) (i) conflict with or result in a violation or breach of,
(ii) constitute (with or without notice or lapse of time or both) a default
under, (iii) require NBO to obtain any consent, approval or action of, make any
filing with or give any notice to any Person as a result or under the terms of
or (iv) result in the creation or imposition of any Lien upon NBO or any of its
properties or assets under, any contract, agreement, plan, permit or license to
NBO is a party.
3.04 Governmental Approvals and Filings. No consent, approval
or action of, filing with or notice to any Governmental or Regulatory Authority
on the part of NBO is required in connection with the execution, delivery and
performance of this Stockholders Agreement or the consummation of the
transactions contemplated hereby, other than filings under the Exchange Act in
connection with the Stockholders' voting agreement contained in this
Stockholders Agreement and the other transactions contemplated by this
Stockholders Agreement.
3.05 Common Stock Ownership. NBO is the beneficial owner of
1,159,014 shares of Common Stock (the "Shares"). Other than the Shares, NBO is
not the beneficial owner of any Equity Securities.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SCHOSTAKS
Each Schostak hereby represents and warrants to the Company as
follows:
4.01 Authority. This Stockholders Agreement has been duly and
validly executed and delivered by each Schostak and constitutes a legal, valid
and binding obligation of such Schostak enforceable against such Schostak in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
4.02 No Conflicts. The execution and delivery by each Schostak
of this Stockholders Agreement do not, and the performance by each Schostak of
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such Schostak's obligations under this Stockholders Agreement and the
consummation of the transactions contemplated hereby will not:
(a) conflict with or result in a violation or breach of any
term or provision of any law, statute, rule or regulation or any order, judgment
or decree of any Governmental or Regulatory Authority applicable to such
Schostak or any of such Schostak's properties or assets; or
(b) (i) conflict with or result in a violation or breach of,
(ii) constitute (with or without notice or lapse of time or both) a default
under, (iii) require such Schostak to obtain any consent, approval or action of,
make any filing with or give any notice to any Person as a result or under the
terms of, or (iv) result in the creation or imposition of any Lien upon any of
such Schostak's properties or assets under, any contract, agreement, plan,
permit or license to which such Schostak is a party.
4.03 Governmental Approvals and Filings. No consent, approval
or action of, filing with or notice to any Governmental or Regulatory Authority
on the part of any Schostaks required in connection with the execution, delivery
and performance of this Stockholders Agreement or the consummation of the
transactions contemplated hereby, other than filings under the Exchange Act in
connection with the Stockholders' voting agreement contained in this
Stockholders Agreement and the other transactions contemplated by this
Stockholders Agreement.
4.04 Common Stock Ownership. Other than the Shares, all of
which are owned beneficially by NBO, none of the Schostaks or any other member
of the Restricted Group is the beneficial owner of any Equity Securities.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to NBO and the
Schostaks as follows:
5.01 Incorporation. The Company is a corporation duly
incorporated and validly existing under the laws of the State of Indiana. The
Company has the requisite corporate power and authority to execute and deliver
this Stockholders Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby.
5.02 Authority. The execution and delivery by the Company of
this Stockholders Agreement, and the performance by the Company of its
obligations hereunder, have been duly and validly authorized by the Board of
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Directors of the Company, no other corporate action on the part of the Company
or its stockholders being necessary. This Stockholders Agreement has been duly
and validly executed and delivered by the Company and constitutes a legal, valid
and binding obligation of the Company in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
5.03 No Conflicts. The execution and delivery by the Company
of this Stockholders Agreement do not, and the performance by the Company of its
obligations under this Stockholders Agreement and the consummation of the
transactions contemplated hereby will not:
(a) conflict with or result in a violation or breach of any of
the terms, conditions or provisions of the articles of incorporation or bylaws
of the Company;
(b) conflict with or result in a violation or breach of any
term or provision of any law, statute, rule or regulation or any order, judgment
or decree of any Governmental or Regulatory Authority applicable to the Company
or any of its properties or assets; or
(c) (i) conflict with or result in a violation or breach of,
(ii) constitute (with or without notice or lapse of time or both) a default
under, (iii) require the Company to obtain any consent, approval or action of,
make any filing with or give any notice to any Person as a result or under the
terms of or (iv) result in the creation or imposition of any Lien upon the
Company or any of its properties or assets under, any contract, agreement, plan,
permit or license to which the Company is a party.
5.04 Governmental Approvals and Filings. No consent, approval
or action of, filing with or notice to any Governmental or Regulatory Authority
on the part of the Company is required in connection with the execution,
delivery and performance of this Stockholders Agreement or the consummation of
the transactions contemplated hereby, other than filings under the Exchange Act
in connection with the Stockholders' voting agreement contained in this
Stockholders Agreement and the other transactions contemplated by this
Stockholders Agreement.
ARTICLE VI
GENERAL PROVISIONS
6.01 Survival of Representations, Warranties, Covenants and
Agreements. Notwithstanding any right of any party (whether or not exercised) to
investigate the accuracy of the representations and warranties of the other
party contained in this Stockholders Agreement, each party hereto has the right
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to rely fully upon the representations and warranties of the others contained in
this Stockholders Agreement. Except as provided in Section 6.02, the
representations, warranties, covenants and agreements of each party hereto
contained in this Stockholders Agreement will survive until the termination of
this Stockholders Agreement.
6.02 Termination. This Stockholders Agreement and all rights
and obligations of the parties hereunder shall automatically terminate, and
shall cease to be of any further force and effect, upon (a) the mutual written
agreement of the Stockholders and the Company or (b) the Termination Date .
Notwithstanding the termination of this Stockholders Agreement, nothing
contained herein shall relieve any party hereto from liability for breach of any
of such party's representations, warranties, covenants or agreements contained
in this Stockholders Agreement.
6.03 Amendment and Waiver. (a) This Stockholders Agreement may
be amended, supplemented or modified only by a written instrument duly executed
by or on behalf of each party hereto.
(b) Any term or condition of this Stockholders Agreement may
be waived at any time by the party that is entitled to the benefit thereof, but
no such waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition. No waiver
by any party of any term or condition of this Stockholders Agreement, in any one
or more instances, shall be deemed to be or construed as a waiver of the same or
any other term or condition of this Stockholders Agreement on any future
occasion. All remedies, either under this Stockholders Agreement or by law or
otherwise afforded, will be cumulative and not alternative.
6.04 Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first class postage
prepaid) to the parties at the following addresses or facsimile numbers:
If to NBO or the Schostaks to:
NBO, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
with a copy to:
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
If to the Company to:
Quality Dining, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
with a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto.
6.05 Entire Agreement. This Stockholders Agreement supersedes
all prior discussions and agreements among the parties hereto with respect to
the subject matter hereof, and contains, together with the Purchase Agreement,
the sole and entire agreement among the parties hereto with respect to the
subject matter hereof.
6.06 No Third Party Beneficiary. The terms and provisions of
this Stockholders Agreement are intended solely for the benefit of each party
hereto, and it is not the intention of the parties to confer third-party
beneficiary rights upon any other Person.
6.07 No Assignment; Binding Effect. Neither this Stockholders
Agreement nor any right, interest or obligation hereunder may be assigned by any
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parties hereto without the prior written consent of the other party hereto and
any attempt to do so will be void. Subject to the preceding sentence, this
Stockholders Agreement is binding upon, inures to the benefit of and is
enforceable by the parties hereto and their respective successors and assigns
and legal representatives.
6.08 Specific Performance; Legal Fees. The parties acknowledge
that money damages are not an adequate remedy for violations of any provision of
this Stockholders Agreement and that any party may, in such party's sole
discretion, apply to a court of competent jurisdiction for specific performance
for injunctive or such other relief as such court may deem just and proper in
order to enforce any such provision or prevent any violation hereof and, to the
extent permitted by applicable law, each party waives any objection to the
imposition of such relief. The parties hereto agree that, in the event that any
party to this Stockholders Agreement shall bring any legal action or proceeding
to enforce or to seek damages or other relief arising from an alleged breach of
any term or provision of this Stockholders Agreement by any other party, the
prevailing party in any such action or proceeding shall be entitled to an award
of, and the other party to such action or proceeding shall pay, the reasonable
fees and expenses of legal counsel to the prevailing party.
6.09 Headings. The headings used in this Stockholders
Agreement have been inserted for convenience of reference only and do not define
or limit the provisions hereof.
6.10 Invalid Provisions. If any provision of this Stockholders
Agreement is held to be illegal, invalid or unenforceable under any present or
future law, and if the rights or obligations of any party hereto under this
Stockholders Agreement will not be materially and adversely affected thereby,
(i) such provision will be fully severable, (ii) this Stockholders Agreement
will be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof and (iii) the remaining provisions
of this Stockholders Agreement will remain in full force and effect and will not
be affected by the illegal, invalid or unenforceable provision or by its
severance herefrom.
6.11 Governing Law. This Stockholders Agreement has been
negotiated and entered into in the State of Indiana and shall be governed by and
construed in accordance with the laws of the State of Indiana applicable to a
contract executed and performed in such State, without giving effect to the
conflicts of laws principles thereof.
6.12 Consent to Jurisdiction and Service of Process. Each
party hereby irrevocably submits to the exclusive jurisdiction of the United
States District Court for the Northern District of Indiana in St. ▇▇▇▇▇▇ County
in any action, suit or proceeding arising in connection with this Stockholders
Agreement and brought within five (5) years from the date hereof; agrees that
any such action, suit or proceeding brought within such period shall be brought
only in such court (and waives any objection based on forum non conveniens or
any other objection to venue therein and to the extent permitted by law); and
agrees to delivery of service of process in connection with any such action,
suit or proceeding brought within such period by any of the methods by which
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notices may be given pursuant to Section 6.04, with such service being deemed
given as provided in such Section; provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this Section 6.12 and
shall not be deemed to be a general submission to the jurisdiction of said court
or in the State of Indiana other than for such purpose. Nothing herein shall
affect the right of any party to serve process in any other manner permitted by
law or to commence legal proceedings or otherwise proceed against the other in
any other jurisdiction.
6.13 Counterparts. This Stockholders Agreement may be executed
in any number of counterparts, each of which will be deemed an original, but all
of which together will constitute one and the same instrument.
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IN WITNESS WHEREOF, each party hereto has signed this
Stockholders Agreement, or caused this Stockholders Agreement to be signed by
its officer thereunto duly authorized, as of the date first above written.
QUALITY DINING, INC.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: President
NBO, LLC
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Member
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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