EXHIBIT 21
STOCK SALE AGREEMENT
dated as of June 27, 2003
by and between
XXXXXX X. XXXXXXXXXXX
and
NBO, LLC
This STOCK SALE AGREEMENT (this "STOCK SALE AGREEMENT") dated
as of June 27, 2003 is made and entered into by and between XXXXXX X.
XXXXXXXXXXX (the "BUYER"), and NBO, LLC, a Michigan limited liability company
(the "SELLER").
RECITALS
This Agreement is based on the following recitals:
A. Seller is the owner of 1,148,014 shares of common stock, no
par value (the "SHARES" ), of Quality Dining, Inc., an Indiana corporation
(the "COMPANY").
B. Buyer has agreed to buy the Shares for the price of
$3,672,610.00.
C. Buyer and Seller desire to establish in this Stock Sale
Agreement certain terms and conditions concerning the disposition of the Shares.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Stock Sale 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
SALE OF SHARES TO THE BUYER
1.01 Sale of Shares. Seller agrees to sell to the Buyer, and
the Buyer agrees to buy from Seller, the Shares for the price of Three Million
Six Hundred Seventy Two Thousand Six Hundred Ten Dollars ($3,672,610.00), which
sale shall occur immediately following the execution hereof (the "CLOSING"). In
the event that, within eighteen (18) months following the Closing Date, either
(i) the management of the Company shall acquire all or substantially all of the
outstanding common stock of the Company; or (ii) a third party shall acquire,
either through a stock acquisition, merger or other business combination, a
majority interest in the Company, then Buyer shall pay to Seller a topping fee
equal to the product of 1,148,014 multiplied by the amount, if any, by which (x)
the amount paid per share of the Company's common stock in such acquisition or
the value ascribed per share of the Company's common stock in such merger or
other business combination; exceeds (y) Three Dollars and 55/100 ($3.55).
Buyer's obligation to pay the topping fee shall survive the Closing.
1.02 Sales Commission. Seller has agreed to pay to Schostak
Brothers & Company, Inc. (the "BROKER"), at Closing, a commission in connection
with the sale of the Shares equal to Six Hundred Thousand Dollars
($600,000.00)(the "SALE COMMISSION").
1.03 Closing. Immediately following the execution hereof, (i)
Seller shall transfer title to the Shares to the Buyer (or his nominee) free and
clear of any lien, security interest, pledge, hypothecation or any other
restriction or interest either by electronic means or by delivery to the Buyer
of stock certificates for the Shares, together with executed blank stock powers,
(ii) the Buyer shall pay to Seller the sum designated in Section 1.01 hereof,
less the amount of the Sale Commission, by wire transfer of immediately
available funds to an account designated by Seller; (iii) the Buyer, on behalf
of the Seller, shall pay directly to the Broker, the Sale Commission, by wire
transfer of immediately available funds to an account designated by
the Broker; and (iv) Seller, Buyer, the Company and certain principals of Seller
shall enter into a Standstill Agreement and Mutual Release in the form attached
hereto as Exhibit A (the "STANDSTILL AGREEMENT").
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to the Buyer as follows:
2.01 Incorporation. Seller is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Michigan. Seller has the requisite power and authority to execute and deliver
this Stock Sale Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby.
2.02 Authority. The execution and delivery by Seller of this
Stock Sale Agreement, and the performance by Seller of its obligations
hereunder, have been duly and validly authorized by Seller, no other action on
the part of Seller or its members being necessary. This Stock Sale Agreement has
been duly and validly executed and delivered by Seller and constitutes a legal,
valid and binding obligation of Seller enforceable against Seller 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).
2.03 No Conflicts. The execution and delivery by Seller of
this Stock Sale Agreement do not, and the performance by Seller of its
obligations under this Stock Sale 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 Seller;
(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 Seller 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, or (iii) require Seller 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 under, any contract, agreement, plan, permit or license to which
Seller is a party.
2.04 Governmental Approvals and Filings. No consent, approval
or action of, filing with or notice to any governmental or regulatory authority
on the part of Seller is required in connection with the execution, delivery and
performance of this Stock Sale Agreement or the consummation of the transactions
contemplated hereby, other than filings under the Securities Exchange Act of
1934, as amended, in connection with the transactions contemplated by this Stock
Sale Agreement.
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2.05 Share Ownership. As of the date hereof, Seller is the
beneficial owner of 1,148,014 shares of common stock of the Company. Other than
the Shares, Seller is not the beneficial owner of any other securities of the
Company. Seller beneficially owns the Shares free and clear of any lien,
security interest, pledge, hypothecation or any other restriction or interest,
and has not granted any proxy or entered into any voting agreement or similar
arrangement that remains in effect with respect to the Shares.
2.06 Legal Proceedings. There is no action, suit,
investigation, audit, arbitration or proceeding before or by any governmental
entity pending against, or to Seller's knowledge, threatened, relating to or
affecting Seller or any of its assets and properties which could reasonably be
expected to result in the issuance of an order restraining, enjoining or
otherwise prohibiting or making illegal the consummation of any of the
transactions contemplated by this Stock Sale Agreement.
2.07 Information About Company. Seller is relying solely on
public filings relating to the Company in making its decision to sell the Shares
on the terms set forth in this Stock Sale Agreement. Furthermore, Seller
understands that Buyer is the Chief Executive Officer of the Company and
therefore may have information about the Company and its business and prospects
that has not been publicly released, and acknowledges that Seller is not
entitled to, and will not, make any claim that it would have negotiated any
different terms had it been aware of any such information.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer hereby represents and warrants to Seller as follows:
3.01 Capacity. Buyer is legally competent and has the
capacity to execute and deliver this Stock Sale Agreement, to perform his
obligations hereunder and to consummate the transactions contemplated hereby.
3.02 Authority. This Stock Sale Agreement has been duly and
validly executed and delivered by the Buyer and constitutes a legal, valid and
binding obligation of the Buyer enforceable against Buyer 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 the Buyer of
this Stock Sale Agreement do not, and the performance by the Buyer of his
obligations under this Stock Sale 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 the Buyer or
any of his properties or assets; or
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(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, or (iii) require the Buyer 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 under, any contract, agreement, plan, permit or license to which the
Buyer is a party which has not already been obtained.
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 the Buyer is required in connection with the execution, delivery
and performance of this Stock Sale Agreement or the consummation of the
transactions contemplated hereby, other than filings under the Securities
Exchange Act of 1934, as amended, in connection with the transactions
contemplated by this Stock Sale Agreement.
3.05 Legal Proceedings. There is no action, suit,
investigation, audit, arbitration or proceeding before or by any governmental
entity pending against, or to Buyer's knowledge, threatened, relating to or
affecting Buyer or any of his assets and properties which could reasonably be
expected to result in the issuance of an order restraining, enjoining or
otherwise prohibiting or making illegal the consummation of any of the
transactions contemplated by this Stock Sale Agreement.
ARTICLE IV
GENERAL PROVISIONS
4.01 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 Stock Sale Agreement, each party hereto has the right to
rely fully upon the representations and warranties of the other contained in
this Stock Sale Agreement. The representations, warranties, covenants and
agreements of each party hereto contained in this Stock Sale Agreement will
survive the consummation of the transactions contemplated by this Stock Sale
Agreement.
4.02 Amendment and Waiver. (a) This Stock Sale 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 Stock Sale 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 Stock Sale 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 Stock Sale Agreement on any future occasion.
All remedies, either under this Stock Sale Agreement or by law or otherwise
afforded, will be cumulative and not alternative.
4.03 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
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facsimile transmission or mailed (first class postage prepaid) to the parties at
the following addresses or facsimile numbers:
If to Seller:
NBO, LLC
00000 Xxxxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxxxx
with a copy to:
Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxxx X. XxXxxxxxxx, Esq.
If to Buyer:
Xxxxxx X. Xxxxxxxxxxx
c/o Quality Dining, Inc.
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, 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.
4.04 Entire Agreement. This Stock Sale Agreement supersedes
all prior discussions and agreements between the parties hereto with respect to
the subject matter hereof, and contains, together with the Standstill Agreement,
is the sole and entire agreement between the parties hereto with respect to the
subject matter hereof.
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4.05 No Third Party Beneficiary. The terms and provisions of
this Stock Sale 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.
4.06 No Assignment; Binding Effect. Neither this Stock Sale
Agreement nor any right, interest or obligation hereunder may be assigned by any
party 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 Stock
Sale 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.
4.07 Specific Performance; Legal Fees. The parties acknowledge
that money damages are not an adequate remedy for violations of any provision of
this Stock Sale 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 Stock Sale 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 Stock Sale 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.
4.08 Headings. The headings used in this Stock Sale Agreement
have been inserted for convenience of reference only and do not define or limit
the provisions hereof.
4.09 Invalid Provisions. If any provision of this Stock Sale
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
Stock Sale Agreement will not be materially and adversely affected thereby, (i)
such provision will be fully severable, (ii) this Stock Sale 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
Stock Sale 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.
4.10 Governing Law. This Stock Sale 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.
4.11 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. Xxxxxx County
in any action, suit or proceeding arising in
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connection with this Stock Sale 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 4.03,
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 4.11 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.
4.12 Expenses. Each party will pay its own costs and expenses
incurred in connection with the negotiation, execution and closing of this Stock
Sale Agreement and the transactions contemplated hereby.
4.13 Counterparts. This Stock Sale 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 Stock
Sale Agreement, or caused this Stock Sale Agreement to be signed by its member
thereunto duly authorized, as of the date first above written.
NBO, LLC,
a Michigan limited liability company
By:
-------------------------------------
Name:
-----------------------------------
Title:
-----------------------------
"Seller"
-----------------------------------
Xxxxxx X. Xxxxxxxxxxx, Individually
"Purchaser"
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