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