STOCK PURCHASE AGREEMENT
By and Among
Casual Dining Ventures, Inc.
and
DAKA International, Inc.
and
Champps Development Group, Inc., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇, III, PDS Financial Corporation, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and
Certain Other Stockholders of Americana Dining Corp. named on Exhibit A
Dated as of March 18, 1996
TABLE OF CONTENTS
ARTICLE VI. TERMINATION OF AGREEMENT
Section 6.01. Termination
Section 6.02. Effect of Termination
Section 6.03. Right to Proceed
ARTICLE VII. SURVIVAL; INDEMNIFICATION
Section 7.01 Survival of Representations, Warranties, Etc.
Section 7.02. Indemnification by the Sellers
Section 7.03. Limitations on Indemnification by Stockholders
Section 7.04. Indemnification by the Company
Section 7.05 No Limitation of Rights
Section 7.06. Notice; Defense of Claims
ARTICLE VIII. REGISTRATION RIGHTS
Section 8.01. Definitions
Section 8.02 Resale Registration
Section 8.03 Registration Procedures
Section 8.04 Registration Expenses
Section 8.05 Indemnification and Contribution
Section 8.06 Restrictions on Sale
Section 8.07 Transfer of Registration Rights
ARTICLE IX. MISCELLANEOUS
Section 9.01. Law Governing
Section 9.02. Notices
Section 9.03. Prior Agreements Superseded
Section 9.04. Assignability
Section 9.05. Fees and Expenses
Section 9.06. Publicity and Disclosures
Section 9.07. Captions and Gender
Section 9.08. Execution in Counterparts
Section 9.09. Certain Remedies; Severability
Section 9.10. Amendments; Waivers
Section 9.11. Exhibits and Schedules
Exhibit A - Certain Stockholders of Americana Dining Corp.
Exhibit 5.01(b) - Form of Corporate Opinion of Sellers' Counsel
Exhibit 5.02(b)(i) - Form of Opinion of Company's Counsel
Exhibit 5.02(d) - Forms of DAKA, ADC and Edgebrook, Inc. Releases
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made as of this 18th
day of March, 1996, by and among DAKA International, Inc., a Delaware
corporation ("DAKA"), Casual Dining Ventures, Inc., a Delaware corporation and a
wholly-owned subsidiary of DAKA ("CDVI"), Champps Development Group, Inc., a
Minnesota corporation ("CDG"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, the sole stockholder of CDG
("▇▇▇▇▇▇▇▇▇"), ▇▇▇▇▇▇ ▇. ▇▇▇, III ("Pew"), PDS Financial Corporation ("PDSFC"),
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (for himself or for the benefit of his former spouse, who is
also a signatory to this Agreement) ("▇▇▇▇▇▇") and such of the other
stockholders of Americana Dining Corp., a Delaware corporation ("ADC"), named on
Exhibit A attached hereto who may after the date hereof and prior to the Closing
(as defined herein) become parties to this Agreement by executing and delivering
a counterpart of this Agreement (each an "Other Selling Stockholder" and
collectively the "Other Selling Stockholders"). CDG, Wagenheim, Pew, PDSFC,
▇▇▇▇▇▇ and the Other Selling Stockholders are referred to herein individually as
a "Seller" and collectively as the "Sellers". DAKA and CDVI are referred to
herein collectively as the "Company".
W I T N E S S E T H
WHEREAS, CDG is the record and beneficial owner of 434,000 shares of
common stock, par value $.01 per share, of ADC ("ADC Common Stock") and
▇▇▇▇▇▇▇▇▇ is the President of ADC; and
WHEREAS, Pew is the record and beneficial owner of 140,000 shares of ADC
Common Stock; and
WHEREAS, PDSFC is the record and beneficial owner of 20,000 shares of ADC
Common Stock; and
WHEREAS, ▇▇▇▇▇▇ is the record and beneficial owner of 50,000 shares of ADC
Common Stock; and
WHEREAS, the Other Selling Stockholders listed on Exhibit A hereto are the
record and beneficial owners of his, her or its shares of ADC Common Stock; and
WHEREAS, all shares of ADC Common Stock owned beneficially and of record by
all Sellers are hereinafter referred to collectively as the "Shares;" and
WHEREAS, CDVI is the record and beneficial owner of 1,400,000 shares of ADC
Common Stock and of 466,667 shares of preferred stock, par value $.01 per share,
of ADC and DAKA is the record and beneficial owner of all issued and outstanding
shares of capital stock of CDVI; and
WHEREAS, Sellers desire to transfer to CDVI all of the Shares in exchange
for shares of the common stock, par value $.01 per share, of DAKA (the "DAKA
Common Stock") to be issued by DAKA to CDVI and immediately transferred by CDVI
to Sellers and CDVI desires to acquire from Sellers all of the Shares in
exchange for such shares of DAKA Common Stock in an arrangement qualifying as a
reorganization under the provisions of Section 368(a)(1)(B) of the Internal
Revenue Code of 1986, as amended (the "Code"), whereby, after giving effect to
such transactions, CDVI will own beneficially and of record in excess of 80% of
the issued and outstanding shares of ADC Common Stock, on the terms and
conditions hereinafter set forth;
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements hereinafter set forth, the parties hereto agree as follows:
ARTICLE I. PURCHASE AND SALE OF SHARES
Section 1.01. Plan; Purchase and Sale of the Shares
CDVI and Sellers hereby adopt a plan of reorganization pursuant to the
provisions of Section 368(a)(1)(B) of the Code. The terms and conditions
governing this plan of reorganization are hereinafter set forth. Subject to the
terms and conditions of this Agreement and in reliance on the representations,
warranties and covenants herein set forth, CDVI hereby agrees to purchase from
the Sellers, and the Sellers hereby agree to sell and deliver to CDVI, at the
Closing (as hereinafter defined in Section 1.05 hereof), the Shares free and
clear of any and all liens, claims, options, charges, encumbrances or rights of
any nature ("Claims").
Section 1.02. Consideration
Subject to the terms and conditions of this Agreement and in reliance on
the representations, warranties and covenants set forth herein, and in
consideration of the sale and delivery by the Sellers of the Shares, CDVI hereby
agrees to issue to the Sellers .18182 of one share of DAKA Common Stock, for
each Share of ADC Common Stock sold and delivered to CDVI, subject to possible
adjustment, as provided in Section 1.03 hereof. No fractional shares will be
issued by CDVI to the Sellers. Instead, the total number of shares of DAKA
Common Stock to be issued to each Seller (regardless of whether such Seller's
Shares are represented by a single or multiple certificates) will be rounded up
or down to the nearest number of whole shares of DAKA Common Stock (or in the
case of .5, to the next higher whole number). Reference is made to the
representations and warranties of the Sellers set forth in Section 2.04 hereof,
including, without limitation, the acknowledgment and understanding that (a) the
DAKA Common Stock to be issued to the Sellers hereunder has not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), or any
state securities laws, (b) the DAKA Common Stock to be issued to the Sellers
hereunder will be subject to transfer restrictions under the Securities Act and
applicable state securities laws and may not be transferred unless (x) it is
subsequently registered under the Securities Act and applicable state securities
laws or (y) there is delivered to DAKA an opinion of counsel satisfactory to
DAKA that such registration is not required,and (c) DAKA will place a
restrictive legend to the foregoing effect on the certificate(s) representing
the DAKA Common Stock to be issued to the Sellers hereunder.
Section 1.03. Adjustments to Consideration
In the event that (a) on the Closing Date (as such term is hereinafter
defined), the Closing Price (as such term is hereinafter defined) of a share of
DAKA Common Stock is less than $21.00 per share and (b) Sellers owning a
majority of the Shares elect to terminate this Agreement pursuant to Section
6.01(e) hereof, then CDVI will have the right to rescind such termination by
adjusting the consideration for the Shares as follows, in which case the Sellers
will be obligated to proceed with the sale and delivery of the Shares: in
consideration for each Share of ADC Common Stock to be sold by each of the
Sellers, CDVI will deliver a fraction of one share of DAKA Common Stock
(determined to the nearest one-tenth of one-thousandth of a share) calculated by
multiplying (i) .18182 by (ii) the quotient of (x) $21.00 divided by (y) the
Closing Price. For purposes of this Agreement, the term "Closing Price" shall
mean the average per share closing sale price of DAKA Common Stock as reported
on the Nasdaq National Market over the twenty (20) trading days immediately
preceding the second trading day prior to the Closing Date. Notwithstanding the
foregoing, if between the date of this Agreement and the Closing Date the
outstanding shares of DAKA Common Stock or ADC Common Stock are changed into a
different number of shares or a different class or series, by reason of any
stock dividend, subdivision, reclassification, recapitalization, split,
combination or exchange of shares, the consideration described above shall be
correspondingly and proportionately adjusted to reflect such stock dividend,
subdivision, reclassification, recapitalization, split, combination or exchange
of shares.
Section 1.04. General Releases
(a) Each Seller, by executing and delivering this Agreement, and in
consideration of the covenants and agreements of the Company contained herein
and other good and valuable consideration hereby:
(i) releases and discharges ADC, DAKA, and their respective subsidiaries, each
of the present and former stockholders, directors, officers, employees and
agents of ADC, DAKA, and their respective subsidiaries, affiliates of any
of the foregoing and their respective successors and assigns (each a
"Released Party") of and from any and all commitments, indebtedness, suits,
demands, claims, obligations and liabilities, contingent or otherwise, of
every kind and nature, including claims and causes of action both at law
and in equity, which such Seller and/or his or her or its successors,
heirs, executors, administrators or assigns ever had, now has or, to the
extent arising from or in connection with any act, omission or state of
facts taken or existing on or prior to the date hereof and the Closing
Date, may have after the date hereof against any Released Party, whether
asserted, unasserted, absolute, contingent, known or unknown, other than
claims or causes of action arising under or pursuant to this Agreement, and
each document executed in connection herewith, including, without
limitation, rights to indemnification under Article VII of this Agreement;
and
(ii) waives any rights such Seller may have under that certain Shareholders
Agreement dated as of March 28, 1994, by and among ADC and the stockholders
of ADC (the "Shareholders Agreement"), including, without limitation, any
rights of first refusal and any rights of pro rata participation.
(b) The foregoing release shall be fully effective and unconditional upon
execution and delivery of this Agreement and shall not be affected by
termination of this Agreement other than (i) termination by the Company in
breach of the provisions of Section 6.01 hereof or (ii) termination by the
Sellers pursuant to Section 6.01(d) hereof.
(c) Notwithstanding the foregoing general releases, no Seller who is
employed by ADC shall be deemed to have waived or released any claim against ADC
for wages or benefits due from ADC that are due and payable on or prior to the
Closing Date.
Section 1.05. Closing
The sale and delivery and the purchase and acceptance of the Shares (the
"Closing") shall take place at the offices of the Company on the day on which
all of the conditions to Closing set forth in Article V (other than conditions
to be satisfied at the Closing which shall be satisfied or waived as of the
Closing) have been satisfied or waived in accordance with the terms hereof, such
day being referred to herein as the Closing Date.
Section 1.06. Deliveries at Closing
At the Closing, (a) DAKA shall issue to CDVI the number of shares of DAKA
Common Stock to be delivered by CDVI to the Sellers hereunder in consideration
of the Shares and CDVI shall execute in favor of and deliver to DAKA a
promissory note in an original principal amount equal to the product of (x) the
Closing Price on the Closing Date by (y) such number of shares of DAKA Common
Stock; (b) each Seller shall deliver a certificate or certificates representing
all Shares owned beneficially and of record by such Seller, together with stock
powers (or the equivalent) duly executed in blank and such other documents as
may be required to transfer to CDVI good and valid title to such Shares free and
clear of all Claims, (c) CDVI shall deliver to each Seller a certificate or
certificates representing the appropriate number of shares of DAKA Common Stock
bearing the legend provided in Section 2.04(d) hereof issued in the name of such
Seller and (d) each Seller shall resign any office such Seller holds as a
director and/or officer of ADC effective as of the Closing Date. All transfer,
excise or similar taxes arising out of the sale or delivery of the Shares to
CDVI shall be paid by the Sellers.
Section 1.07. Actions Subsequent to Closing
The Sellers and the Company after the Closing, and without further
consideration, shall from time to time execute and deliver or cause to be
executed and delivered such further instruments of transfer, assignments,
consents or documents as may be reasonably necessary or appropriate to carry out
the intent and purposes hereof.
ARTICLE II. REPRESENTATION AND WARRANTIES OF THE SELLERS
Section 2.01. Making of Representations and Warranties
As a material inducement to the Company to enter into this Agreement and to
consummate the transactions contemplated hereby, each of CDG, Wagenheim, Pew,
PDSFC, ▇▇▇▇▇▇ and the Other Selling Stockholders, severally as to himself,
herself or itself only and not jointly, hereby make to the Company the
representations and warranties contained in this Article II.
Section 2.02. Ownership of Capital Stock; Related Rights
(a) Each Seller owns beneficially and of record all of the Shares set forth
or referred to in the preamble hereof, as applicable. Upon delivery to CDVI at
the Closing of the certificates representing the Shares duly endorsed in blank
for transfer or with stock powers attached duly executed in blank, against
delivery of the consideration therefor described in Article I hereof, good and
valid title to the Shares shall be transferred to CDVI, free and clear of any
and all Claims.
(b) Except for the Shareholders Agreement, no Seller has any outstanding
subscriptions, options, warrants, commitments, agreements, arrangements or
commitments of any kind for or relating to the issuance, or sale of, or
outstanding securities convertible into or exchangeable for, any shares of
capital stock of any class or other equity interests of ADC; (b) no Seller has
any preemptive right, right of first refusal or similar right to acquire the
Shares or any other shares of capital stock of ADC in connection with the
transactions contemplated by this Agreement or otherwise; (c) there are no
restrictions on the transfer of the Shares, other than those imposed by relevant
state and federal securities or insurance laws; (d) ADC has no obligation to
purchase, redeem or otherwise acquire any of the Shares or to pay any dividend
or make any other distribution in respect thereto; and (e) there are no voting
trusts or proxies relating to any of the Shares.
Section 2.03. Authority of Sellers
(a) Each Seller has full authority, power and (if an individual) capacity
to enter into this Agreement and each agreement, document and instrument to be
executed and delivered by or on behalf of such Seller pursuant to or as
contemplated by this Agreement and to carry out the transactions contemplated
hereby and thereby. This Agreement and each agreement, document and instrument
to be executed and delivered by such Seller or pursuant to or as contemplated by
this Agreement constitute, or when executed and delivered by such Seller will
constitute, valid and binding obligations of such Seller enforceable in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws applicable to creditors'
rights and remedies and to the exercise of judicial discretion in accordance
with general principles of equity.
(b) The execution, delivery and performance by each Seller of
this Agreement and each such agreement, document and instrument:
(i) if such Seller is a corporation, partnership or other legal entity, do not
and will not violate any provision of the charter or by-laws or governing
partnership agreement or other organizational document, if any, of such
Seller;
(ii) do not and will not violate any laws, rules or regulations of the United
States or any state or other jurisdiction applicable to such Seller, or
require such Seller to obtain any approval, consent or waiver of, or to
make any filing with, any person (governmental or otherwise) that has not
been obtained or made; and
(iii)do not and will not result in a breach of, constitute a default under,
accelerate any obligation under or give rise to a right of termination of
any indenture or loan or credit agreement or any other agreement, contract,
instrument, mortgage, lien, lease, permit, authorization, order, writ,
judgment, injunction, decree, determination or arbitration award to which
such Seller is a party or by which the property of such Seller is bound or
affected, or result in the creation or imposition of any mortgage, pledge,
lien, security interest or other charge or encumbrance on the Shares or any
other asset or property of such Seller.
Section 2.04. Investment Representations
(a) Each Seller is acquiring the shares of DAKA Common Stock to be issued
to such Seller hereunder in exchange for such Seller's Shares for such Seller's
own account for investment only and not with a view to, or with any intention
of, a distribution or resale thereof, in whole or in part, in violation of the
Securities Act or any rule or regulation thereunder, as amended from time to
time.
(b) No Seller (i) is directly or indirectly controlled by, or acting on
behalf of any person which is, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, required to register as such under
such Act or (ii) was formed solely for the purpose of acquiring the DAKA Common
Stock to be issued to the Sellers hereunder.
(c) Each Seller (i) has carefully reviewed the disclosure information
provided by the Company; (ii) has requested and received such other information,
as it has deemed relevant, regarding the Company for purposes of evaluating its
acquisition of the DAKA Common Stock to be issued to the Sellers hereunder;
(iii) is aware of the risks associated with an investment in the DAKA Common
Stock; and (iv) has not received any form of general solicitation or advertising
in connection with his or her or its decision to acquire the DAKA Common Stock
to be issued to the Sellers hereunder. No Seller has relied in any way on any
information with respect to the DAKA Common Stock or the Companygenerally other
than the representations of the Company contained herein or materials furnished
by the Company in writing in connection herewith.
(d) Each Seller acknowledges and understands that (i) the DAKA Common Stock
to be issued to the Sellers hereunder has not been registered under the
Securities Act, or any state securities laws; (ii) the DAKA Common Stock to be
issued to the Sellers hereunder will be subject to transfer restrictions under
the Securities Act and applicable state securities laws and may not be
transferred unless (x) it is subsequently registered under the Securities Act
and applicable state securities laws or (y) there is delivered to DAKA an
opinion of counsel satisfactory to DAKA that such registration is not required;
and (iii) DAKA will place a restrictive legend on the certificate(s)
representing the DAKA Common Stock to be issued to the Sellers hereunder,
containing the following language:
"The shares represented by this Certificate were issued without registration
under the Securities Act of 1933, as amended (the "Act") and without
registration under applicable state securities laws, in reliance upon
exemptions contained in the Act and such laws. No transfer of these shares
or any interest therein may be made except pursuant to effective
registration statements under said laws unless this Corporation has
received an opinion of counsel satisfactory to it that such transfer or
disposition does not require registration under said laws and, for any
sales under Rule 144 of the Act, such evidence as it shall request for
compliance with that rule."
(e) Each Seller (i) is able to bear the economic risks of the acquisition
of shares of DAKA Common Stock hereunder and has adequate means of providing for
current needs and possible contingencies; (ii) either alone or with his or her
or its advisors has had the opportunity to ask questions and receive answers
concerning the Company and the terms and conditions of the acquisition of DAKA
Common Stock in exchange for the Shares, as well as the opportunity to obtain
any additional information necessary to verify the accuracy of information
furnished in connection therewith which the Company possesses or can acquire
without unreasonable effort or expense; and (iii) together with his or her or
its advisors, if any, has such knowledge and experience in financial and
business matters that such Seller is capable of evaluating the merits and risks
of this acquisition of DAKA Common Stock in exchange for the Shares, and of
making an informed investment decision, and has relied solely upon the advice of
his or her or its own counsel, accountant and other advisors, with regard to the
legal, investment, tax and other considerations regarding such acquisition.
Section 2.05. General Release Representations.
With respect to the general release of the Released Parties, as defined in
Section 1.04 hereof, by the Sellers (a) none of the Sellers has assigned any
claim or possible claim against any Released Party, (b) each Seller fully
intends to release all claims against the Released Parties including, without
limitation, known, unknownand contingent claims (other than those specifically
reserved in Section 1.04 hereof), and (iii) each Seller has consulted with
counsel with respect to the general release set forth in Section 1.04 hereof and
has been fully apprised of the consequences thereof.
Section 2.06. Information Supplied to the Company
To the best of Sellers' knowledge, neither this Agreement, nor any
certificate furnished pursuant to or in connection with this Agreement by or on
behalf of any Seller contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements contained
therein not misleading in the light of the circumstances under which they were
made. To the best knowledge of ▇▇▇▇▇▇▇▇▇, there is no material fact directly
relating to the business, operations or condition of ADC (other than facts which
relate to general economic trends or conditions) that currently is having or, to
the best knowledge of ▇▇▇▇▇▇▇▇▇, in the future is reasonably likely to (so far
as may now be reasonably foreseen based upon material facts of which ▇▇▇▇▇▇▇▇▇
is now aware) have a material adverse effect on the properties, business,
condition (financial or otherwise) or prospects of ADC.
Section 2.07. Investment Banking; Brokerage
There are no claims for investment banking fees, brokerage commissions,
finder's fees or similar compensation (exclusive of professional fees of lawyers
and accountants) in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of any
Seller.
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Section 3.01. Making of Representations and Warranties
As a material inducement to the Sellers to enter into this Agreement and to
consummate the transactions contemplated hereby, the Company hereby makes to
them the representations and warranties contained in this Article III.
Section 3.02. Organization and Corporate Power.
Each of DAKA and CDVI is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware with full corporate
power and authority to own or lease its properties and to conduct its business
in the manner and in the places where such properties are owned or leased or
such business is conducted and to enter into this Agreement and each agreement,
document and instrument to be executed and delivered by it pursuant to or as
contemplated by this Agreement and to carry out the transactions contemplated
hereby and thereby.
Section 3.03. Authority
The execution, delivery and performance of this Agreement and each
agreement, document and instrument to be executed and delivered by the Company
pursuant to this Agreement have been duly authorized by all necessary corporate
action of the Company, and no other corporate action on the part of the Company
is required in connection therewith. This Agreement and each such agreement,
document and instrument constitutes, or when executed and delivered by the
Company will constitute, valid and binding obligations of the Company
enforceable in accordance with their respective terms. The execution,
deliveryand performance by the Company of this Agreement and each such
agreement, document and instrument:
(a) do not and will not violate any provisions of the certificate of
incorporation or by-laws of DAKA or CDVI;
(b) do not and will not result in any violation by the Company of any laws,
rules or regulations of the United States or any state or other jurisdiction
applicable to the Company or any of its affiliates, or require the Company or
any of its affiliates to obtain any approval, consent or waiver of, or to make
any filing of any notice with, any person (governmental or otherwise) that has
not been obtained or made; and
(c) do not and will not result in a breach of, constitute a default under,
accelerate any obligation under or give rise to a right of termination of any
indenture or loan or credit agreement or any other agreement, contract,
instrument, mortgage, lien, order, writ, judgment, injunction, decree,
determination or arbitration award to which the Company is a party or by which
the property of the Company is bound or affected, or result in the creation or
imposition of any mortgage, pledge, lien, security interest or other charge or
encumbrance on any property or asset owned by the Company except for such
occurrence that would not have a material adverse effect on the properties,
business, condition (financial or otherwise), or prospects of the Company.
Section 3.04. Investment Banking; Brokerage
There are no claims for investment banking fees, brokerage commissions,
finder's fees or similar compensation (exclusive of professional fees of lawyers
and accountants) in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of ADC or
the Company.
Section 3.05. DAKA Common Stock
The DAKA Common Stock to be issued hereunder in exchange for the Shares
shall, when issued in accordance with this Agreement, be validly issued, fully
paid and non-assessable.
Section 3.06. Investment Representation
All Shares of ADC Common Stock being acquired by CDVI under the terms of
this Agreement are being acquired by CDVI for investment for its own account
without a view to, and not for sale in connection with, any distribution of the
ADC Common Stock.
ARTICLE IV. COVENANTS.
Section 4.01. Sale of Shares; Acquisition Proposals
Unless and until this Agreement is terminated in accordance with its terms
for any reason, no Seller shall directly or indirectly exchange, deliver,
assign, pledge, encumber or otherwise transfer or dispose of any Shares
(including options in respect thereof) owned beneficially and of record by such
Seller, norshall any Seller directly or indirectly grant any right of any kind
to acquire, dispose of, vote or otherwise control in any manner any Shares.
Unless and until this Agreement is terminated in accordance with its terms,
neither any Seller nor any director, officer, employee or agent of any Seller
shall, directly or indirectly, (a) take any action to solicit, initiate
submission of or encourage proposals or offers from any person relating to any
acquisition or purchase of all or any portion of the Shares or all or (other
than in the ordinary course of business consistent with past practice) any
portion of any assets of, or any equity interest in, such Seller or ADC, any
merger or business combination with such Seller or ADC, or any other
acquisition, transaction or financing or joint venture involving such Seller or
ADC (an "Acquisition Proposal"), (b) participate in any negotiations regarding
an Acquisition Proposal with any person other than the Company and its
affiliates and representatives, (c) furnish any information with respect to or
afford access to the properties, books or records of such Seller or ADC to any
person who may consider making or has made an offer with respect to an
Acquisition Proposal other than the Company and its affiliates and
representatives, or (d) otherwise cooperate in any way with, or assist or
participate in, facilitate or encourage, any effort or attempt by any person
other than the Company and its affiliates and representatives to do or seek any
of the foregoing. The Sellers shall promptly notify the Company upon receipt of
any offer or indication that any person is considering making an offer with
respect to an Acquisition Proposal or any request for information relative to
ADC, and will keep the Company fully informed of the status and details of any
such offer, indication or request.
Section 4.02. Consents and Approvals
(a) The Sellers will use their best efforts to cause all conditions to the
obligations of the parties hereunder to be satisfied and to obtain or cause to
be obtained prior to the Closing Date all necessary consents and approvals to
the performance of the obligations of the Sellers under this Agreement. The
Sellers will cooperate in all respects with the Company with a view toward
obtaining timely satisfaction of the conditions to the Closing set forth herein.
(b) The Company will use its best efforts to cause all conditions to the
obligations of the parties hereunder to be satisfied and to obtain or cause to
be obtained prior to the Closing Date all necessary consents and approvals to
the performance of the obligations of the Company under this Agreement. The
Company will cooperate in all respects with the Sellers with a view toward
obtaining timely satisfaction of the conditions to the Closing set forth herein.
Section 4.03. Breach of Representations and Warranties
Promptly upon any Seller becoming aware of any breach, or the impending or
threatened occurrence of any event which would cause or constitute a breach, or
would have caused or constituted a breach had such event occurred or been known
prior to the date hereof, of any of the representations and warranties of the
Sellers contained in or referred to in this Agreement and made as of the date
hereof, the Sellers shall give detailed written notice thereof to the Company
and shall use their best efforts to prevent or promptly remedy the same.
Section 4.04. Confidentiality
In the course of the Sellers' involvement with ADC as stockholders or
employees or otherwise, the Sellers have had, and may from time to time after
the date hereof have, access to confidential records, data, customer lists,
trade secrets and similar confidential information owned or used by ADC in the
course of its business (the "Confidential Information"). Accordingly, each
Seller agrees (a) to hold the Confidential Information in strict confidence, (b)
not to disclose Confidential Information to any person, and (c) not to use,
directly or indirectly, any of the Confidential Information for any competitive
or commercial purpose; provided, however, that the limitations set forth above
shall not apply to any Confidential Information which (i) is then generally
known to the public other than by reason of a breach of this Section 4.04; or
(ii) is disclosed in accordance with an order of a court of competent
jurisdiction or applicable law. Upon request by the Company, all data,
memoranda, customer lists, notes, programs and other papers and items, and
reproductions thereof relating to the foregoing matters in a Seller's possession
or control shall be returned to the Company or ADC.
Section 4.05. Non-Hire of ADC Employees
▇▇▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇▇, ▇▇▇▇ of the Sellers shall hire or attempt to hire any
officer or other employee of ADC or encourage any officer or other employee to
terminate his or her relationship with ADC; provided, however, that ▇▇▇▇▇▇▇▇▇ or
any affiliate of ▇▇▇▇▇▇▇▇▇ shall be permitted to employ (i) all staff currently
employed in the operation by ADC of the Champps Americana restaurant located at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("New Brighton Employees") and
(ii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ after the later of (A) June 30, 1996 or (B) such date on
which ▇▇▇▇▇▇▇▇▇ ceases to be an employee of ADC.
Section 4.06. Non-Hire of New Brighton Employees
None of DAKA, ADC or any of their affiliates shall hire or attempt to hire
any New Brighton Employee or encourage any New Brighton Employee to terminate
his or her relationship with ▇▇▇▇▇▇▇▇▇ or any affiliate of ▇▇▇▇▇▇▇▇▇.
Section 4.07. ADC Indemnification By-Laws.
For a period of five years following the Closing, the Company shall cause
ADC not to amend its charter or by-laws as in existence on the date hereof so as
to adversely affect the right of Wagenhein and Pew as directors of ADC to
indemnification thereunder.
ARTICLE V. CONDITIONS
Section 5.01. Conditions to the Obligations of the Company
The obligation of the Company to consummate the transactions contemplated
by this Agreement are subject to the fulfillment, prior to or at the Closing, of
the following additional conditions precedent:
(a) Representations; Warranties; Covenants. Each of the representations and
warranties of the Sellers made pursuant to this Agreement shall be true and
correct in all material respects on and as of the Closing Date, with the same
effect as though made on and as of the Closing Date; the Sellers shall, on or
before the Closing Date, have performed andsatisfied all of their covenants and
agreements set forth herein, which by the terms hereof, are to be performed and
satisfied on or before the Closing Date; and the Sellers shall have delivered to
the Company certificates executed as of the Closing Date certifying to the
foregoing effect.
(b) Opinion of Counsel and Other Documents. On the Closing Date, the
Company shall have received (i) opinions of counsel for the Sellers dated as of
the Closing Date and addressed to the Company, substantially in the form
attached as Exhibit 5.01(b) hereto, and (ii) such other certificates and
documents with respect to the Sellers as counsel for the Company shall have
reasonably requested at least two (2) business days prior to the Closing Date.
(c) No Actions or Proceedings. No action or proceeding by or before any
court, administrative body or governmental agency shall have been instituted or
threatened by or on behalf of any Seller or which seeks to enjoin, restrain or
prohibit, or might result in money damages to any party hereto in respect of,
this Agreement or the complete consummation of the transactions contemplated by
this Agreement, or which otherwise would in the reasonable judgment of the
Company make it inadvisable to consummate such transactions. No law or
regulation shall be in effect and no court order shall have been entered in any
action or proceeding instituted by any party which enjoins, restrains or
prohibits this Agreement or the complete consummation of the transactions
contemplated by this Agreement.
(d) Company Approvals and Consents. The Company shall have made all filings
with and notifications of governmental authorities, regulatory agencies and
other entities required to be made by it in connection with the execution and
delivery of this Agreement and the performance by it of the transactions
contemplated hereby; the Company shall have received all required
authorizations, waivers, consents and permits to permit the consummation of the
transactions contemplated by this Agreement, in form and substance reasonably
satisfactory to the Company, from all third parties.
(e) Deliveries. The Sellers shall have delivered or entered into the
documents and instruments contemplated by this Agreement, in each case, in form
and substance satisfactory to the Company and its counsel.
(f) ADC Approvals and Consents. ADC shall have made all filings with and
notifications of governmental authorities, regulatory agencies and other
entities, if any, required to be made in connection with the execution and
delivery of this Agreement, the performance of the transactions contemplated
hereby and the continued operation of the business of ADC subsequent to the
Closing Date, and ADC shall have received all required authorizations, waivers,
consents and permits to permit the consummation of the transactions contemplated
by this Agreement, in the form and substance reasonably satisfactory to the
Company, with any conditions or limitations contained therein or imposed thereby
subject to the approval of the Company, from all third parties, including,
without limitation, applicablegovernmental authorities, regulatory agencies,
lessors, lenders and contract parties, required in connection with transactions
contemplated by this Agreement or by ADC's permits, leases, licenses and
franchises, to avoid a breach, default, termination, acceleration or
modification of any agreement, contract, instrument, mortgage, lien, lease,
permit, authorization, order, writ, judgment, injunction, decree, determination
or arbitration award as a result of the execution or performance of this
Agreement, or otherwise in connection with the execution and performance of this
Agreement.
(g) Material Adverse Changes. There shall not have been since the date of
this Agreement, any change or series of changes that, in the reasonable business
judgment of the Company, acting in good faith, have or could reasonably be
anticipated to have a material adverse effect on the properties, business,
condition (financial or otherwise) or prospects of ADC.
(h) Proceedings Satisfactory to the Company. All proceedings to be taken by
the Sellers in connection with the consummation of the Closing and the other
transactions contemplated hereby and all certificates, opinions, instruments and
other documents required to effect the transaction contemplated hereby
reasonably requested by the Company will be reasonably satisfactory in the form
and substance to the Company and its counsel.
(i) Minimum Number of Shares of ADC Common Stock to be Transferred. On or
before the Closing Date, a sufficient number of Other Selling Stockholders shall
have become parties to this Agreement such that (i) at the Closing, CDVI will
acquire at least 840,001 shares of ADC Common Stock and (ii) immediately after
the Closing, CDVI will own beneficially and of record at least 2,240,001 shares
of ADC Common Stock, representing 80% or more of the issued and outstanding
shares of ADC Common Stock.
(j) The transactions contemplated by that certain Asset Purchase Agreement
(the "APA") between ADC and New Brighton Ventures, Inc. dated as of March 18,
1996 shall have closed in accordance with the terms of the APA and the documents
and other instruments attached to or referred to in the APA shall have been
executed and delivered.
Section 5.02. Conditions to the Obligations of the Sellers
The obligations of the Sellers to consummate the transactions contemplated
by this Agreement are subject to the fulfillment of, prior to or at the Closing,
the following additional conditions precedent:
(a) Representations; Warranties; Covenants. Each of the representations and
warranties of the Company contained in this Agreement shall be true and correct
in all material respects on and as of the Closing Date, with the same effect as
though made on and as of the Closing Date; the Company shall, on or before the
Closing Date, have performed and satisfied all of its covenants and agreements
set forth herein which by the terms hereof are to be performed and satisfied by
the Company on or before the Closing Date; and the Company shall have delivered
to the Sellers a certificate as of the Closing Date certifying to the foregoing
effect. (b) Opinion of Counsel and Other Documents. On the Closing Date (i) the
Sellers shall have received an opinion of counsel for the Company, dated as of
the Closing Date and addressed to the Sellers, substantially in the form
attached as Exhibit 5.02(b)(i) hereto, (ii) ▇▇▇▇▇▇▇▇▇ and Pew shall have
received a tax opinion from ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Professional Association
substantially to the effect that the acquisition by CDVI of the ADC Common Stock
held by CDG and Pew solely in exchange for DAKA Common Stock will constitute a
tax-free reorganization within the meaning of Section 368(a)(1)(B) of the Code
and no taxable gain or loss will be recognized to CDG and Pew upon the exchange
of their ADC Common Stock solely for DAKA Common Stock, and (iii) such other
certificates and documents as counsel to the Sellers shall have reasonably
requested from the Company at least five (5) business days prior to the Closing
Date.
(c) No Actions or Proceedings. No action or proceeding by or before any
court, administrative body or governmental agency shall have been instituted or
threatened which seeks to enjoin, restrain or prohibit, or might result in
damages in respect of, this Agreement or the complete consummation of the
transactions as contemplated by this Agreement. No law or regulation shall be in
effect and no court order shall have been entered in any action or proceeding
instituted by any party which enjoins, restrains or prohibits this Agreement or
the complete consummation of the transactions as contemplated by this Agreement.
(d) General Releases. Each of DAKA, ADC and Edgebrook, Inc., a Minnesota
corporation and a stockholder of ADC, shall have executed and delivered to each
of CDG, ▇▇▇▇▇▇▇▇▇, and Pew a general release substantially in the form of
Exhibit 5.02(d) attached hereto.
(e) Minimum Number of Shares of ADC Common Stock to be Transferred. On or
before the Closing Date, a sufficient number of Other Selling Stockholders shall
have become parties to this Agreement such that (i) at the Closing, CDVI will
acquire at least 840,001 shares of ADC Common Stock and (ii) immediately after
the Closing, CDVI will own beneficially and of record at least 2,240,001 shares
of ADC Common Stock, representing 80% or more of the issued and outstanding
shares of ADC Common Stock.
(f) The transactions contemplated by the APA shall have closed in
accordance with the terms of the APA and the documents and other instruments
attached to or referred to in the APA shall have been executed and delivered.
(g) The Acknowledgment Agreement by and among DAKA, ADC and ▇▇▇▇▇▇ ▇. ▇▇▇,
III shall have been executed and delivered to Pew by DAKA and ADC on or before
the Closing.
ARTICLE VI. TERMINATION OF AGREEMENT
Section 6.01. Termination
This Agreement may be terminated any time prior to the Closing Date as
follows:
(a) With the mutual consent of CDVI and the Sellers owning a majority of
the Shares.
(b) By either CDVI or the Sellers owning a majority of the Shares, if the
Closing has not occurred on or before June 1, 1996; provided, however, that if
the only reason why the Closing has not occurred is that the condition set forth
in Section 5.01(f) has not been satisfied, then such date shall be automatically
extended until August 31, 1996.
(c) By CDVI, if there has been a material misrepresentation or breach of
warranty on the part of any Seller in the representations and warranties
contained herein or a material breach of covenants on the part of any Seller and
the same has not been cured within 10 days after notice thereof. In the event of
any termination pursuant to this Section 6.01(c), written notice setting forth
the reasons therefor shall forthwith be given by CDVI to the Sellers.
(d) By Sellers owning a majority of the Shares, if there has been a
material misrepresentation or breach of warranty on the part of the Company in
the representations and warranties contained herein or a material breach of
covenants on the part of the Company and the same has not been cured within 10
days after notice thereof. In the event of any termination pursuant to this
Section 6.01(d), written notice setting forth the reasons therefor shall
forthwith be given by the Sellers to the Company.
(e) By Sellers owning a majority of the Shares, if the Closing Price (as
defined in Section 1.02 hereof) of the DAKA Common Stock is less than $21.00;
provided, however, that such termination shall be deemed rescinded and not
effective if CDVI elects to adjust the consideration for the Shares as provided
in Section 1.03.
Notwithstanding anything herein to the contrary, the right to terminate
this Agreement under Section 6.01 shall not be available to any party to the
extent the failure of such party, respectively, to fulfill any of its
obligations under this Agreement has been the cause of, or resulted in, the
failure of the Closing to occur on or before such date (as a result, for
example, of an action or failure to act causing a failure of a condition
precedent).
Section 6.02. Effect of Termination
All obligations of the parties hereunder shall cease upon any termination
pursuant to Section 6.01; provided, however, that (i) the provisions of this
Article VI shall survive any termination of this Agreement; (ii) the Sellers'
general release set forth in Section 1.04 hereof shall be and remain fully
effective and unconditional regardless of such termination, except in the event
of termination by the Sellers pursuant to Section 6.01(d); (iii) nothing herein
shall relieve any party from any liability for amaterial error or omission in
any of its representations or warranties contained herein or a material failure
to comply with any of its covenants, conditions or agreements contained herein;
and (iv) any party may proceed as further set forth in Section 6.03 below.
Section 6.03. Right to Proceed
Anything in this Agreement to the contrary notwithstanding, if any of the
conditions specified in Section 5.01 hereof have not been satisfied, the Company
shall have the right to proceed with the transactions contemplated hereby
without waiving any of its rights hereunder, and if any of the conditions
specified in Section 5.02 hereof have not been satisfied, the Sellers, by a
decision of the Sellers owning a majority of the Shares, shall have the right to
proceed with the transactions contemplated hereby without waiving any of their
rights hereunder.
ARTICLE VII. SURVIVAL; INDEMNIFICATION
Section 7.01. Survival of Representations, Warranties, Etc
All representations, warranties, agreements, covenants and obligations
herein or in any schedule or certificate delivered by any party incident to the
transactions contemplated hereby are material and may be relied upon by the
party receiving the same and shall survive the Closing regardless of any
investigation by or knowledge of such party and shall not merge into the
performance of any obligation by any party hereto.
Section 7.02. Indemnification by the Sellers
(a) CDG, Wagenheim, Pew, PDSFC and ▇▇▇▇▇▇, on behalf of themselves and
their respective successors, executors, administrators, estates, heirs and
permitted assigns, jointly and severally, and (b) the other Selling
Stockholders, on behalf of themselves and their respective successors,
executors, administrators, estates, heirs and permitted assigns, severally and
not jointly, agree subsequent to the Closing Date to indemnify and hold harmless
the Company, ADC, their respective affiliates and their respective shareholders,
officers, directors, employees and agents (individually, a "Company Indemnified
Party" and collectively, the "Company Indemnified Parties") from and against and
in respect of all losses, liabilities, obligations, damages, deficiencies,
actions, suits, proceedings, demands, assessments, orders, judgments, fines,
penalties, costs and expenses (including the reasonable fees, disbursements and
expenses of attorneys, accountants and consultants) of any kind or nature
whatsoever (whether or not arising out of third-party claims and including all
amounts paid in investigation, defense or settlement of the foregoing)
sustained, suffered or incurred by or made against a party entitled to
indemnification (a "Loss" or "Losses"), as such losses are incurred, arising out
of, based upon or in connection with:
(i) conditions, circumstances or occurrences which constitute or result in any
breach of any representation or warranty made by any Seller in this
Agreement or in any schedule, exhibit, certificate, financial statement,
agreement or other instrument delivered under or in connection with this
Agreement, or by reason of any claim, action or proceeding asserted or
instituted arising out of any matter or thingcovered by any such
representations or warranties (collectively, "Representation and Warranty
Claims");
(ii) any breach of any covenant or agreement made by any Seller in this
Agreement or in any schedule, exhibit, certificate, financial statement,
agreement or other instrument delivered under or in connection with this
Agreement, or by reason of any claim, action or proceeding asserted or
instituted arising out of any matter or thing covered by any such covenant
or agreement;
(iii)any fees and expenses of the Sellers (including without limitation legal
fees and accounting fees) relating to the execution, delivery and
performance of this Agreement paid, assumed or otherwise borne by ADC.
Section 7.03. Limitations on Indemnification by Stockholders
(a) Subject to the exceptions set forth in Section 7.03(b), with respect to
any particular indemnification claim asserted by the Company Indemnified Parties
under Section 7.02, the particular Seller who has breached a representation or
warranty or covenant as to himself or herself or itself shall be primarily
liable with respect to such claim for the full amount of such claim and the
non-breaching Sellers (subject to the further limitation that the liability of
the Other Selling Stockholders shall be several and not joint) shall be liable
with respect to such claim only to the extent that the full amount of such
indemnification claim is not recoverable by the Company Indemnified Parties from
the breaching Seller.
(b) Dollar-for-Dollar Claims. Notwithstanding anything herein to the
contrary, recovery by Company Indemnified Parties on account of indemnification
claims made pursuant to Section 7.02 hereof shall not be subject to any
limitation, whether pursuant to this Section 7.03 or otherwise, and they shall
be entitled to dollar-for-dollar recovery, in seeking indemnification from any
Seller with respect to (i) Losses arising from fraud or an intentional
misrepresentation on the part of any Seller; (ii) Losses arising from
intentional breach of a covenant by any Seller; (iii) Losses involving a breach
by a Seller of the representations and warranties contained in Sections 2.02 and
2.03
Section 7.04. Indemnification by the Company
The Company agrees to indemnify and hold harmless the Sellers from and
against and in respect of all Losses sustained, suffered or incurred by or made
against any of them arising out of, based upon or in connection with (a)
conditions, circumstances or occurrences which constitute or result in any
breach of any representation or warranty made by the Company in this Agreement
or in any schedule, exhibit, certificate, financial statement, agreement or
other instrument delivered under or in connection with this Agreement, or by
reason of any claim, action or proceeding asserted or instituted arising out of
any matter or thing covered by any such representations and (b) any breach of
any covenant or agreement made by the Company in this Agreement or in any
schedule, exhibit, certificate, financial statement, agreement or other
instrument delivered under or in connection with this Agreement, or by reason of
any claim, action or proceedingasserted or instituted arising out of any matter
or thing covered by any such covenant or agreement.
Section 7.05. No Limitation of Rights
Notwithstanding anything herein to the contrary, the limitations set forth
in this Article VII shall apply only with respect to post-Closing
indemnification obligations and shall in no way limit any rights the Company or
Sellers may have in law or equity in the event the Closing does not occur.
Section 7.06. Notice; Defense of Claims
Promptly after receipt by an indemnified party of notice of any claim,
liability or expense to which the indemnification obligations hereunder would
apply, the indemnified party shall give notice thereof in writing to the
indemnifying party, but the omission to so notify the indemnifying party
promptly will not relieve the indemnifying party from any liability except to
the extent that the indemnifying party shall have been prejudiced as a result of
the failure or delay in giving such notice. Such notice shall state the
information then available regarding the amount and nature of such claim,
liability or expense and shall specify the provision or provisions of this
Agreement under which the liability or obligation is asserted. If within 20 days
after receiving such notice the indemnifying party gives written notice to the
indemnified party stating that (i) it would be liable under the provisions
hereof for indemnity in the amount of such claim if such claim were successful,
(ii) that it shall be fully responsible (with no reservation of any rights) for
all liabilities relating to such claim, liability or expense and that it will
provide full indemnification (whether or not otherwise required hereunder) to
the indemnified party with respect to such claim, liability or expense and (iii)
that it disputes and intends to defend against such claim, liability or expense
at its own cost and expense, then counsel for the defense shall be selected by
the indemnifying party (subject to the consent of the indemnified party which
consent shall not be unreasonably withheld) and the indemnified party shall not
be required to make any payment with respect to such claim, liability or expense
as long as the indemnifying party is conducting a good faith and diligent
defense at its own expense; provided, however, that the assumption of defense of
any such matters by the indemnifying party shall relate solely to the claim,
liability or expense that is subject or potentially subject to indemnification,
and provided further that prior to such assumption of defense the indemnifying
party shall enter into an agreement with the indemnified party in form and
substance satisfactory to the indemnified party pursuant to which the
indemnifying party unconditionally guarantees the payment and performance of any
liability or obligation which may arise out of or in any way relating to such
claim, liability or expense or the facts giving rise thereto. The indemnifying
party shall have the right, with the consent of the indemnified party, which
consent shall not be unreasonably withheld, to settle all indemnifiable matters
related to claims by third parties which are susceptible to being settled
provided its obligation to indemnify the indemnifying party therefor will be
fully satisfied. The indemnifying party shall keep the indemnified party
apprised of the status of the claim, liability or expense and any resulting
suit, proceeding or enforcement action, shall furnish the indemnified party with
all documents and information that the indemnified party shall reasonably
request and shall consult with the indemnified party prior to acting on major
matters, including settlement discussions. Notwithstanding anything herein
stated to the contrary, the indemnified party shall at all times have the right
to fullyparticipate in such defense at its own expense directly or through
counsel; provided, however, if the named parties to the action or proceeding
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate under applicable
standards of professional conduct, the expense of separate counsel for the
indemnified party shall be paid by the indemnifying party. If no such notice of
intent to dispute and defend is given by the indemnifying party, or if such
diligent good faith defense is not being or ceases to be conducted, the
indemnified party shall, at the expense of the indemnifying party, undertake the
defense of (with counsel selected by the indemnified party), and shall have the
right to compromise or settle (exercising reasonable business judgment), such
claim, liability or expense. If such claim, liability or expense is one that by
its nature cannot be defended solely by the indemnifying party, then the
indemnified party shall make available all information and assistance that the
indemnifying party may reasonably request and shall cooperate with the
indemnifying party in such defense.
ARTICLE VIII. REGISTRATION RIGHTS
Section 8.01. Definitions
As used in this Article VIII, the following terms shall have the following
meanings:
"Advice" has the meaning set forth in Section 8.03.
"Affiliate" means, with respect to any specified person, any other person who,
directly or indirectly, controls, is controlled by, or is under common
control with such specified person.
"Commission" means the Securities and Exchange Commission.
"Controlling Persons" has the meaning set forth in Section 8.05(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended from time
to time, or any successor statute, and the rules and regulations of the
Commission promulgated thereunder.
"Holder" means (i) any Seller and (ii) each person (other than DAKA and its
Affiliates) to whom any Seller transfers Securities as provided in Section
8.07 hereof, if the person to whom such Securities are transferred acquires
such Securities as Registrable Securities.
"Lock-up Period" has the meaning set forth in Section 8.06.
"Lock-up Request" has the meaning set forth in Section 8.06.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement,
and by all other amendments and supplements to the prospectus, including
post-effective amendments, and in each case including all material
incorporated by reference or deemed to be incorporated by reference in such
prospectus.
"Registrable Securities" means the Securities; provided, however, that any
Securities shall cease to be Registrable Securities when (i) a Registration
Statement covering such Registrable Securities has been declared effective
and such Registrable Securities have been disposed of pursuant to such
effective Registration Statement, (ii) such Registrable Securities become
eligible for sale pursuant to Rule 144 (or any similar provision then in
force) under the Securities Act or (iii) such Securities cease to be
outstanding.
"Registration Statement" means any registration statement of DAKA that covers
any of the Registrable Securities pursuant to the provisions of this
Agreement and all amendments and supplements to any such registration
statement, including post-effective amendments, in each case including the
Prospectus, all exhibits, and all material incorporated by reference or
deemed to be incorporated by reference in such registration statement.
"Securities" means the shares of DAKA Common Stock issued to the Sellers
pursuant to this Agreement so long as they are owned beneficially and of
record by a Holder.
"Securities Act" means the Securities Act of 1933, as amended from time to time,
or any successor statute, and the rules and regulations of the Commission
promulgated thereunder.
"Suspension Notice" has the meaning set forth in Section 8.03.
"Suspension Period" has the meaning set forth in Section 8.03.
Section 8.02. Resale Registration
(a) Filing; Effectiveness. If on any one (1) occasion after October 1,
1996, one or more Holders holding an aggregate of at least 9,000 Registrable
Securities shall notify DAKA in writing that they intend to offer or cause to be
offered for public resale all or any portion of their Registrable Securities,
DAKA will notify all of the Holders of Registrable Securities of its receipt of
such notification and upon the written request of any such Holder delivered to
DAKA within 15 days after receipt from DAKA of such notification, DAKA shall use
reasonable efforts to prepare and file a registration statement on Form S-3 (the
"Resale Registration Statement") under the Securities Act covering the resale by
such Holders of their Registrable Securities pursuant to Rule 415 under the
Securities Act from time to time in transactions not involving any underwritten
public offering and use reasonable efforts (i) tocause such Resale Registration
Statement to be declared effective by the Commission for such Registrable
Securities as soon as practicable thereafter and (ii) to keep the Resale
Registration Statement continuously effective until the earliest of (x) the date
on which such Holders no longer hold any Registrable Securities registered under
the Resale Registration Statement or (y) the second anniversary of the Closing
Date; provided, however, that (A) upon the request of one or more Holders
holding an aggregate of at least 9,000 Registrable Securities received prior to
October 1, 1996, DAKA will proceed promptly and in good faith to prepare the
Resale Registration Statement, even if DAKA is not required to file it with the
Commission until October 1, 1996, so as to avoid a delay past October 1, 1996 in
making such filing and (B) if DAKA prior to October 1, 1996 files any
registration statement with the Commission under the Securities Act (other than
on Form S-4 or a similar form relating to business combinations or exchanges or
Form S-8 or a similar form relating to any employee benefit plan), then DAKA
shall give the Holders notice thereof and the Holders may demand registration
pursuant to this Section 8.02 immediately after such filing. DAKA shall not be
required to cause a registration statement requested pursuant to this Section
8.02 to become effective prior to 90 days following the effective date of a
registration statement initiated by DAKA if any managing underwriter named in
such registration statement has advised DAKA in writing that the registration or
sale of additional securities by stockholders of DAKA within such 90-day period
would have a material adverse effect on the likelihood of success of such
underwritten offering; provided, however, that DAKA shall use its best efforts
to achieve such effectiveness promptly following such 90-day period if the
request pursuant to this Section 8.02 has been made prior to the expiration of
such 90-day period. DAKA may postpone the filing of any Registration Statement
required hereunder for a reasonable period of time, not to exceed 60 days, if
DAKA has been advised by outside legal counsel that such filing would require
the disclosure of a material transaction or other matter and DAKA determines
reasonably and in good faith that such disclosure would have a material adverse
effect on DAKA; provided, however, that DAKA shall (A) use reasonable efforts to
disclose such material transaction or other matter as soon as in its good faith
judgment it is prudent to do so and (B) may so postpone such filing only if all
other persons who are named as selling securityholders under then effective
registration statements filed by DAKA with the Commission and all directors of
DAKA are advised of the fact that a material transaction or other matter is not
being disclosed during the length of such postponement and of the consequences
of such nondisclosure under the Securities Act and the Exchange Act.
(b) Effective Registration. A registration will not be deemed to have been
effected as a Resale Registration unless the Resale Registration Statement with
respect thereto has been declared effective by the Commission; provided,
however, that if after it has been declared effective, the offering of
Registrable Securities pursuant to a Resale Registration Statement is interfered
with by any stop order, injunction or other order or requirement of the
Commission or any other governmental agency or court, such Resale Registration
Statement will be deemed not to have become effective during the period of such
interference until the offering of Registrable Securities pursuant to such
Resale Registration Statement may legally resume.
Section 8.03. Registration Procedures
In connection with the obligations of DAKA to effect or cause the
registration of any Registrable Securities pursuant to the terms and conditions
of this Agreement, DAKA shall use reasonable efforts to effect the registration
and sale of such Registrable Securities in accordance with the intended method
of distribution thereof, and in connection therewith:
(a) DAKA shall prepare and file with the Commission a Registration
Statement on Form S-3 or other similar form under the Securities Act which
permits secondary sales of securities in a "shelf registration," and use
reasonable efforts to cause such Registration Statement to become effective and
remain effective in accordance with the provisions of this Agreement;
(b) DAKA shall promptly prepare and file with the Commission such
amendments and post-effective amendments to each Registration Statement as may
be necessary to keep such Registration Statement effective for as long as such
registration is required to remain effective pursuant to the terms hereof; shall
cause the Prospectus to be supplemented by any required Prospectus supplement,
and, as so supplemented, to be filed pursuant to Rule 424 under the Securities
Act; and shall comply with the provisions of the Securities Act applicable to it
with respect to the disposition of all Registrable Securities covered by such
Registration Statement during the applicable period in accordance with the
intended methods of disposition by the Holders set forth in such Registration
Statement or supplement to the Prospectus;
(c) DAKA shall promptly furnish to any Holder such number of copies of the
Prospectus (including each preliminary Prospectus) and any amendments or
supplements thereto, as such Holder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Securities
being sold by such Holder;
(d) DAKA shall, on or prior to the date on which a Registration Statement
is declared effective, use reasonable efforts to register or qualify the
Registrable Securities covered by such Registration Statement under such other
securities or "blue sky" laws of such states of the United States as any Holder
requests; provided, however, that DAKA shall not be required (i) to qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 8.03(d) or (ii) to file any general
consent to service of process;
(e) DAKA shall promptly notify each Holder, (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed and, with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the Commission or any state
securities authority for amendments and supplements to a Registration Statement
and Prospectus or for additional information after the Registration Statement
has become effective, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement, (iv) of the issuance
by any state securities commission or other regulatory authority of any order
suspending thequalification or exemption from qualification of any of the
Registrable Securities under state securities or "blue sky" laws, and (v) of the
happening of any event which makes any statement made in a Registration
Statement or related Prospectus untrue or which requires the making of any
changes in such Registration Statement or Prospectus so that they will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. As
soon as practicable following expiration of the Suspension Period (as defined
below), DAKA shall prepare and file with the Commission and furnish a supplement
or amendment to such Prospectus so that, as thereafter deliverable to the
purchasers of such Registrable Securities, such Prospectus will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
In the case of a Resale Registration Statement, each Holder, upon receipt
of any notice (a "Suspension Notice") from DAKA of the happening of any event of
the kind described in Section 8.03(e)(v), shall forthwith discontinue
disposition of the Registrable Securities pursuant to the Resale Registration
Statement covering such Registrable Securities until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
8.03(e) or until it is advised in writing (the "Advice") by DAKA that the use of
the Prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the Prospectus, and,
if so directed by DAKA, such Holder will, or will request any broker-dealer
acting as such Holder's agent or as an underwriter to, deliver to DAKA (at
DAKA's expense) all copies, other than permanent file copies then in such
Holder's or broker-dealer's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice; provided,
however, that in no event shall the period from the date on which any Holder
receives a Suspension Notice to the date on which any Holder receives either the
Advice or copies of the supplemented or amended Prospectus contemplated by
Section 8.03(e) (the "Suspension Period") exceed 60 days; and provided further
that such Suspension Notice shall not be effective unless DAKA has
contemporaneously given an analogous notice to all other persons named as
selling securityholders in then effective registration statements filed by DAKA
with the Commission and to DAKA's directors. In the event that DAKA shall give
any Suspension Notice, the time periods for which a Resale Registration
Statement is required to be kept effective pursuant to Section 8.02 hereof shall
be extended by the number of days during the Suspension Period.
Section 8.04. Registration Expenses
DAKA shall bear all expenses incurred in connection with the registration
of the Registrable Shares pursuant to Section 8.02 of this Agreement. Such
expenses shall include, without limitation, all printing, legal and accounting
expenses incurred by DAKA and all registration and filing fees imposed by the
Commission, any state securities commission or the NASDAQ National Market. The
Holders shall be responsible for any brokerage or underwriting commissions and
taxes of any kind (including, without limitation, transfer taxes) with respect
to any disposition, sale or transfer of Registrable Securities and for any
legal, accounting and other expenses incurred by them.
Section 8.05. Indemnification and Contribution
(a) Indemnification by DAKA. DAKA agrees to indemnify and hold harmless, to
the full extent permitted by law, each Holder, its partners, officers,
directors, trustees, stockholders, employees and agents, and each person who
controls such Holder within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, or is under common control with, or is
controlled by, such Holder, together with the partners, officers, directors,
trustees, stockholders, employees and agents of such controlling person
(collectively, the "Controlling Persons"), from and against all losses, claims,
damages, liabilities and expenses (including without limitation reasonable legal
fees and expenses incurred by any Holder or any such Controlling Person
documented in writing) (collectively, the "Damages") to which such Holder, its
partners, officers, directors, trustees, stockholders, employees and agents, and
any such Controlling Person may become subject under the Securities Act or
otherwise, insofar as such Damages (or proceedings in respect thereof) arise out
of or are based upon any untrue or alleged untrue statement of material fact
contained in any Registration Statement (or any amendment thereto) pursuant to
which Registrable Securities were registered under the Securities Act, or caused
by any omission or alleged omission to state therein a material fact necessary
to make the statements therein in light of the circumstances under which they
were made not misleading, or caused by any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (as amended or
supplemented if DAKA shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except insofar as such
Damages arise out of or are based upon any such untrue statement or omission
based upon information relating to such Holder furnished in writing to DAKA by
such Holder specifically for use therein; provided, however, that DAKA shall not
be liable to any Holder under this Section 8.05(a) to the extent that any such
Damages were caused by the fact that such Holder sold Securities to a person as
to whom it shall be established that there was not sent or given, at or prior to
the written confirmation of such sale, a copy of the Prospectus as then amended
or supplemented if, and only if, (i) DAKA has previously furnished copies of
such amended or supplemented Prospectus to such Holder and (ii) such Damages
were caused by any untrue statement or omission or alleged untrue statement or
omission contained in the Prospectus so delivered which was corrected in such
amended or supplemented Prospectus.
(b) Indemnification by the Holders. Each Holder agrees, severally and not
jointly, to indemnify and hold harmless DAKA, its stockholders, directors,
officers and each person, if any, who controls DAKA within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from DAKA to such Holder, but only with
reference to information relating to such Holder furnished in writing to DAKA by
such selling Holder specifically for use in any Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto);
provided, however, that such selling Holder shall not be obligated to provide
such indemnity to the extent that such Damages result from the failure of DAKA
to promptly amendor take action to correct or supplement any such Registration
Statement or Prospectus on the basis of corrected or supplemental information
provided by such selling Holder to DAKA expressly for such purpose. In no event
shall the liability of any Holder of Registrable Securities hereunder be greater
in amount than the amount of the proceeds received by such Holder upon the sale
of the Registrable Securities giving rise to such indemnification obligation.
(c) Contribution. To the extent that the indemnification provided for in
paragraph (a) or (b) of this Section 8.05 is unavailable to an indemnified party
or insufficient in respect of any Damages, then each indemnifying party under
such paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such Damages in such proportion as is appropriate to reflect the relative
fault of DAKA on the one hand and the Holders on the other hand in connection
with the statements or omissions that resulted in such Damages, as well as any
other relevant equitable considerations. The relative fault of DAKA on the one
hand and of the Holders on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by DAKA or by the Holders and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
If indemnification is available under paragraph (a) or (b) of this Section
8.05, the indemnifying parties shall indemnify each indemnified party to the
full extent provided in such paragraphs without regard to the relative fault of
said indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 8.05(c).
DAKA and each Holder agrees that it would not be just or equitable if
contribution pursuant to this Section 8.05(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to herein.
Section 8.06. Restrictions on Sale
In the event of an underwritten public offering for the account of DAKA,
upon the written request (the "Lock-up Request") of the managing underwriter (or
underwriters) of such offering, each Holder agrees not to effect any public sale
or distribution of any securities similar to those being registered in such
offering (other than pursuant to such offering), including, without limitation,
through sales of Securities pursuant to a Resale Registration Statement, during
the 14 days prior to, and during the 90-day period beginning on the effective
date of the Registration Statement relating to such offering (the "Lock-up
Period"); provided, however, that the Holders shall not be required to comply
with such Lock-up Request unless DAKA simultaneously demands analogous
restrictions on sale and uses all reasonable efforts to obtain from all other
persons who are contractually bound with DAKA to comply with such Lock-up
Requests and from DAKA's directors. In the event of the delivery of a Lock-up
Request, the time periods for which a Resale Registration Statement is required
to be kept effective pursuant to Section 8.02 hereof shall be extended by the
number of days during the Lock-up Period.
Section 8.07 Transfer of Registration Rights
The registration rights of the Sellers and any Holders under this Article
VIII may be transferred to any transferee of Registrable Securities that
acquires at least 1,000 shares of Registrable Securities (appropriately adjusted
for stock splits, stock dividends and the like). Each such transferee shall be
deemed to be a "Holder" for purposes of this Article VIII.
ARTICLE IX. MISCELLANEOUS
Section 9.01. Law Governing
This Agreement shall be construed under and governed by the internal laws,
and not the law of conflicts, of the State of Minnesota.
Section 9.02. Notices
Any notice, request, demand or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been given if
delivered or sent by facsimile transmission (promptly followed by hard copy
confirmation), upon receipt, or if sent by registered or certified mail upon the
sooner of the expiration of three days after deposit in United States post
office facilities properly addressed with postage prepaid or acknowledgment of
receipt, as follows:
To the Company: One Corporate Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
Senior Vice President and General Counsel
with a copy to: ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, P.C.
To ▇▇▇▇▇▇▇▇▇ c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
and the Other ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Selling Stockholders: ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
To Pew: ▇▇▇▇▇▇ ▇. ▇▇▇, III
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
To PDSFC: PDS Financial Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Operating Officer
To ▇▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address of which any party may notify the other parties as
provided above.
Section 9.03. Prior Agreements Superseded.
This Agreement supersedes all prior understandings and agreements among the
parties relating to the subject matter hereof.
Section 9.04. Assignability
This Agreement shall be assignable by the Company (a) prior to the Closing
to a subsidiary of the Company although no such assignment shall relieve the
Company of any liabilities or obligations under this Agreement and (b) after the
Closing, to any person. This Agreement shall not otherwise be assignable by the
Company without the prior written consent of Sellers owning a majority of the
Shares or (except as otherwise permitted by Section 8.07 hereof) by any Seller
without prior written consent of the Company. This Agreement shall be binding
upon and enforceable by, and shall inure to the benefit of, the parties hereto
and their respective successors, heirs, executors, administrators and permitted
assigns, and no others. Notwithstanding the foregoing, nothing in this Agreement
is intended to give any person not named herein the benefit of any legal or
equitable right, remedy or claim under this Agreement, except as expressly
provided herein.
Section 9.05. Fees and Expenses
Each of the parties to this Agreement shall pay his or her or its own
expenses and costs associated with the negotiation, execution and delivery of
this Agreement and any agreement or instrument contemplated hereby and the
consummation of the transactions contemplated hereby, including all fees and
expenses of counsel, accountants and financial advisors or other professionals
acting on behalf of such party.
Section 9.06. Publicity and Disclosures
None of the parties hereto nor any of their respective stockholders,
affiliates, officers, directors or employees shall issue or cause the
publication of any press release or other announcement with respect to this
Agreement or the transactions contemplated hereby without the prior written
consent of the Company and Sellers owning a majority of the Shares, except to
the extent disclosure is required by any applicable law or regulation or by any
court or authorized administrative or governmental agency.
Section 9.07. Captions and Gender
The captions in this Agreement are for convenience only and shall not
affect the construction or interpretation of any term or provision hereof. The
use in this Agreement of the masculine pronoun in reference to a party hereto
shall be deemed to include the feminine or neuter pronoun, as the context may
require.
Section 9.08. Execution in Counterparts
For the convenience of the parties and to facilitate execution, this
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same document.
Section 9.09. Certain Remedies; Severability
It is specifically understood and agreed that any breach of this Agreement
by any of the parties will result in irreparable injury to the aggrieved party,
that the remedy at law alone will be an inadequate remedy for such breach and
that, in addition to any other remedy for such breach and that, in addition to
any other remedy it may have, such aggrieved party shall be entitled to enforce
the specific performance of this Agreement by the breaching party and to seek
both temporary and permanent injunctive relief, without the necessity of proving
actual damages, but without limitation of their rights to recover such damages.
In case any of the provisions contained in this Agreement shall for any reason
be held to be invalid, illegal or unenforceable in any respect, any such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement, but this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had been limited or modified (consistent with
its general intent) to the extent necessary to make it valid, legal and
enforceable, or if it shall not be possible to so limit or modify such invalid,
illegal or unenforceable provision or part of a provision, this Agreement shall
be construed as if such invalid, illegal or unenforceable provision or part of a
provision had never been contained in this Agreement.
Section 9.10. Amendments; Waivers
This Agreement may not be amended or modified except by a writing duly and
validly executed by the Company and Sellers owning a majority of the Shares. Any
party hereto may waive any covenant or condition intended for its benefit in its
discretion, but delay on the part of any party in exercising any right, power or
privilege hereunder shall not operate as a waiver thereof, nor shall any waiver
on the part of any party of any such right, power or privilege, preclude any
further exercise thereof or the exercise of any other such right, power or
privilege. The rights and remedies of any party arising out of or otherwise in
respect of any inaccuracy in or breach of any representation or warranty, or any
failure to perform or comply with any covenant or agreement, contained in this
Agreement shall in no way be limited by the fact that the act, omission,
occurrence or other state of facts upon which any claim of any such inaccuracy,
breach or failure is based may also be the subject matter of any other
representation, warranty, covenant or agreement contained in this Agreement (or
in any other agreement between the parties) as to which there is no inaccuracy,
breach or failure.
Section 9.11. Exhibits and Schedules
The Exhibits and Schedules to this Agreement are a part of this Agreement
as if set forth in full herein. Any reference to this Agreement or any provision
hereof shall be deemed to include a reference to the Schedules and Exhibits
hereto.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be executed as of the date set forth above.
CASUAL DINING VENTURES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President and
General Counsel
DAKA INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President and
General Counsel
CHAMPPS DEVELOPMENT GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇, III
----------------------
▇▇▇▇▇▇ ▇. ▇▇▇, III
PDS FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Operating Officer
▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
OTHER SELLING STOCKHOLDER'S SIGNATURE PAGE
The undersigned hereby agrees to become a party to and be bound by that
certain Stock Purchase Agreement dated as of March 18, 1996 by and among Casual
Dining Ventures, Inc., DAKA International, Inc. and certain stockholders of
Americana Dining Corp., a Minnesota corporation.
Date: March 19 , 1996 /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------ ----------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
OTHER SELLING STOCKHOLDER'S SIGNATURE PAGE
The undersigned hereby agrees to become a party to and be bound by that
certain Stock Purchase Agreement dated as of March 18, 1996 by and among Casual
Dining Ventures, Inc., DAKA International, Inc. and certain stockholders of
Americana Dining Corp., a Minnesota corporation.
Date: March 19 , 1996 /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------ -----------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
OTHER SELLING STOCKHOLDER'S SIGNATURE PAGE
The undersigned hereby agrees to become a party to and be bound by that
certain Stock Purchase Agreement dated as of March 18, 1996 by and among Casual
Dining Ventures, Inc., DAKA International, Inc. and certain stockholders of
Americana Dining Corp., a Minnesota corporation.
Date: March 19 , 1996 /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
OTHER SELLING STOCKHOLDER'S SIGNATURE PAGE
The undersigned hereby agrees to become a party to and be bound by that
certain Stock Purchase Agreement dated as of March 18, 1996 by and among Casual
Dining Ventures, Inc., DAKA International, Inc. and certain stockholders of
Americana Dining Corp., a Minnesota corporation.
Date: March 21 , 1996 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------ --------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
OTHER SELLING STOCKHOLDER'S SIGNATURE PAGE
The undersigned hereby agrees to become a party to and be bound by that
certain Stock Purchase Agreement dated as of March 18, 1996 by and among Casual
Dining Ventures, Inc., DAKA International, Inc. and certain stockholders of
Americana Dining Corp., a Minnesota corporation.
Date: March 19 , 1996 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------ ------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
OTHER SELLING STOCKHOLDER'S SIGNATURE PAGE
The undersigned hereby agrees to become a party to and be bound by that
certain Stock Purchase Agreement dated as of March 18, 1996 by and among Casual
Dining Ventures, Inc., DAKA International, Inc. and certain stockholders of
Americana Dining Corp., a Minnesota corporation.
Date: March 20 , 1996 /s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------- ---------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
OTHER SELLING STOCKHOLDER'S SIGNATURE PAGE
The undersigned hereby agrees to become a party to and be bound by that
certain Stock Purchase Agreement dated as of March 18, 1996 by and among Casual
Dining Ventures, Inc., DAKA International, Inc. and certain stockholders of
Americana Dining Corp., a Minnesota corporation.
Date: March 22 , 1996 /s/ Court ▇▇▇▇▇▇
------------------ ------------------------------------------------
Name: Court ▇▇▇▇▇▇
OTHER SELLING STOCKHOLDER'S SIGNATURE PAGE
The undersigned hereby agrees to become a party to and be bound by that
certain Stock Purchase Agreement dated as of March 18, 1996 by and among Casual
Dining Ventures, Inc., DAKA International, Inc. and certain stockholders of
Americana Dining Corp., a Minnesota corporation.
Date: March 21 , 1996 /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------- -------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
OTHER SELLING STOCKHOLDER'S SIGNATURE PAGE
The undersigned hereby agrees to become a party to and be bound by that
certain Stock Purchase Agreement dated as of March 18, 1996 by and among Casual
Dining Ventures, Inc., DAKA International, Inc. and certain stockholders of
Americana Dining Corp., a Minnesota corporation.
Date: March 19 , 1996 /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
OTHER SELLING STOCKHOLDER'S SIGNATURE PAGE
The undersigned hereby agrees to become a party to and be bound by that
certain Stock Purchase Agreement dated as of March 18, 1996 by and among Casual
Dining Ventures, Inc., DAKA International, Inc. and certain stockholders of
Americana Dining Corp., a Minnesota corporation.
Date: March 18 , 1996 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------ ------------------------=-----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
OTHER SELLING STOCKHOLDER'S SIGNATURE PAGE
The undersigned hereby agrees to become a party to and be bound by that
certain Stock Purchase Agreement dated as of March 18, 1996 by and among Casual
Dining Ventures, Inc., DAKA International, Inc. and certain stockholders of
Americana Dining Corp., a Minnesota corporation.
Date: ▇▇▇▇▇ ▇▇ , ▇▇▇▇ /▇/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
OTHER SELLING STOCKHOLDER'S SIGNATURE PAGE
The undersigned hereby agrees to become a party to and be bound by that
certain Stock Purchase Agreement dated as of March 18, 1996 by and among Casual
Dining Ventures, Inc., DAKA International, Inc. and certain stockholders of
Americana Dining Corp., a Minnesota corporation.
Date: March 18 , 1996 /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
EXHIBIT A
CERTAIN STOCKHOLDERS OF AMERICANA DINING CORP.
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