EXHIBIT 99.(d)(2)
JOINDER AGREEMENT
This Joinder Agreement (this "Agreement"), dated as of
February 3, 2005, is made by and among Quality Dining, Inc., an Indiana
corporation, QDI Merger Corp., an Indiana corporation, and Xxxxxxx Xxx
Xxxxxxxxxx (the "Joining Party").
Reference is made herein to that certain Agreement and Plan of
Merger, dated as of November 9, 2004, by and between QDI Merger Corp. and
Quality Dining, Inc. and the shareholders of QDI Merger Corp. whose names are
set forth on the signature pages thereto as members of the Shareholder Group
(the "Merger Agreement"; capitalized terms used herein without definition shall
have the meanings set forth in the Merger Agreement), a copy of which is
attached hereto as Appendix A.
1. Joinder to Merger Agreement. The Joining Party hereby joins
in the Merger Agreement solely for the purposes of becoming a member of the
Shareholder Group, as if such Joining Party was a member of the Shareholder
Group at the time of the execution and delivery of the Merger Agreement. In
addition, the Joining Party shall have the same rights and be bound by the same
obligations as a member of the Shareholder Group for all purposes thereof.
2. Entire Agreement. The Joining Party hereby acknowledges
that this Agreement and the Merger Agreement embody the entire agreement and
understanding of the Joining Party in respect of the subject matter contained
herein or therein. This Agreement and the Merger Agreement supersede all prior
agreements and understandings between the Joining Party and any other parties to
the Merger Agreement, whether written or oral, express or implied, with respect
to such subject matter herein or therein.
3. Severability. In the event that any one or more of the
provisions contained in this Agreement, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained herein shall not be in
any way impaired thereby, it being intended that all of the rights and
privileges of the parties to this Agreement and the Merger Agreement shall be
enforceable to the fullest extent permitted by law.
4. Third Party Beneficiaries. The terms and provisions of this
Agreement are intended for the benefit of each party to the Merger Agreement and
their respective successors or permitted assigns.
5. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY,
THE LAWS OF THE STATE OF INDIANA, UNITED STATES OF AMERICA, WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAW THEREOF LAW.
IN WITNESS WHEREOF, the undersigned has executed this Joinder
Agreement as of the day and year first written above.
QUALITY DINING, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: President
QDI MERGER CORP.
By: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
/s/ Xxxxxxx Xxx Xxxxxxxxxx
--------------------------
Xxxxxxx Xxx Xxxxxxxxxx
APPENDIX A
AGREEMENT AND PLAN OF MERGER
DATED AS OF NOVEMBER 9, 2004
BY AND BETWEEN
QDI MERGER CORP.
AND
QUALITY DINING, INC.
TABLE OF CONTENTS
PAGE
----
ARTICLE I
CERTAIN DEFINITIONS........................................................ A-2
ARTICLE II
THE MERGER................................................................. A-6
SECTION 2.1 The Merger.................................................. A-6
SECTION 2.2 Effective Time.............................................. A-6
SECTION 2.3 Effects of the Merger....................................... A-6
SECTION 2.4 Articles of Incorporation and Bylaws........................ A-6
SECTION 2.5 Directors................................................... A-6
SECTION 2.6 Officers.................................................... A-6
SECTION 2.7 Subsequent Actions.......................................... A-6
SECTION 2.8 Effect on the Capital Stock................................. A-7
SECTION 2.9 Treatment of Options and Restricted Shares.................. A-7
SECTION 2.10 Payment for Shares.......................................... A-8
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.............................. A-10
SECTION 3.1 Organization and Qualification.............................. A-10
SECTION 3.2 Capitalization of the Company............................... A-10
SECTION 3.3 Authority Relative to this Agreement........................ A-11
SECTION 3.4 SEC Filings................................................. A-11
SECTION 3.5 Consents and Approvals, No Violations....................... A-11
SECTION 3.6 State Takeover Statute Inapplicable......................... A-12
SECTION 3.7 Company Rights Agreement.................................... A-12
SECTION 3.8 Brokers..................................................... A-12
SECTION 3.9 Opinion of Financial Advisor................................ A-12
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF MERGER CORP. ............................ A-12
SECTION 4.1 Organization................................................ A-12
SECTION 4.2 Authority Relative to this Agreement........................ A-13
SECTION 4.3 Consents and Approvals; No Violations....................... A-13
SECTION 4.4 Capitalization.............................................. A-13
SECTION 4.5 SEC Filings................................................. A-13
SECTION 4.6 Ownership of Shares......................................... A-13
SECTION 4.7 Financing................................................... A-13
SECTION 4.8 Brokers..................................................... A-14
SECTION 4.9 Disclosure.................................................. A-14
ARTICLE V
COVENANTS.................................................................. A-14
SECTION 5.1 Shareholders Meeting........................................ A-14
SECTION 5.2 SEC Filings................................................. A-14
SECTION 5.3 Conduct of Business of the Company.......................... A-15
SECTION 5.4 Notification of Certain Matters............................. A-17
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PAGE
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SECTION 5.5 Access to Information....................................... A-17
SECTION 5.6 Additional Agreements; Commercially Reasonable Efforts...... A-18
SECTION 5.7 Public Announcements........................................ A-19
SECTION 5.8 Indemnification............................................. A-19
SECTION 5.9 Contributions to Merger Corp................................ A-20
SECTION 5.10 Withdrawal of Recommendation; Company Competing
Transactions................................................ A-20
SECTION 5.11 Resignation of Directors.................................... A-21
SECTION 5.12 Exemption from Liability Under Section 16(b)................ A-21
SECTION 5.13 Voting by Shareholder Group................................. A-22
ARTICLE VI
CONDITIONS TO CONSUMMATION OF THE MERGER................................... A-22
SECTION 6.1 Conditions to the Merger.................................... A-22
SECTION 6.2 Conditions to Each Party's Obligations to Effect the
Merger...................................................... A-23
ARTICLE VII
TERMINATION; AMENDMENT; WAIVER............................................. A-23
SECTION 7.1 Termination................................................. A-23
SECTION 7.2 Effect of Termination....................................... A-24
SECTION 7.3 Expense Reimbursement....................................... A-24
SECTION 7.4 Amendment................................................... A-24
SECTION 7.5 Waiver...................................................... A-25
ARTICLE VIII
MISCELLANEOUS.............................................................. A-25
SECTION 8.1 Nonsurvival of Representations and Warranties............... A-25
SECTION 8.2 Entire Agreement; Assignment................................ A-25
SECTION 8.3 Severability................................................ A-25
SECTION 8.4 Notices..................................................... A-25
SECTION 8.5 Governing Law............................................... A-26
SECTION 8.6 Specific Performance........................................ A-26
SECTION 8.7 Interpretation.............................................. A-26
SECTION 8.8 Parties in Interest......................................... A-26
SECTION 8.9 Counterparts................................................ A-26
(a)56,000 of these shares are held in an individual retirement account and
will be converted into the Merger Consideration at the Effective Time of
the Merger................................................................. 1
EXHIBIT A -- Shares of Common Stock owned by members of the Shareholder
Group...................................................................... A-28
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of November 9, 2004 ("this
Agreement"), is made by and between QDI Merger Corp., an
Indiana corporation
("Merger Corp."), and Quality Dining, Inc., an
Indiana corporation (the
"Company").
WHEREAS, the Company has authority to issue 55,000,000 shares of capital
stock consisting of: (1) 50,000,000 shares of common stock, no par value (the
"Common Stock"), of which 11,609,099 were outstanding as of November 1, 2004,
and (2) 5,000,000 shares of preferred stock, no par value (the "Preferred
Stock"), of which (a) 141,450 shares are designated Series A Convertible
Cumulative Preferred Stock (the "Series A Preferred Stock"), none of which are
outstanding, and (b) 180,000 shares are designated Series B Participating
Cumulative Preferred Stock (the "Series B Preferred Stock"), none of which are
outstanding;
WHEREAS, Xxxxxx X. Xxxxxxxxxxx, Xxxxxx X. Xxxxxxxxxxx, Xxxxx X.
Xxxxxxxxxxx, Xxxx X. Xxxxxxxxxxx and Xxxx X. Xxxxx, who together with certain
controlled entities (collectively, and together with any other shareholder of
the Company who becomes a party to the Shareholders Agreement (as defined below)
prior to the Shareholders Meeting (as defined below) the "Shareholder Group")
collectively own the number of shares of Common Stock set forth on Exhibit A
attached hereto, have entered into a Shareholders Agreement dated as of June 15,
2004 (as the same may be amended from time to time, the "Shareholders
Agreement"), pursuant to which (i) the Shareholder Group has proposed to the
board of directors of the Company (the "Company Board") a transaction pursuant
to which Merger Corp. would acquire the outstanding shares of Common Stock not
owned by the Shareholder Group, and (ii) the members in the Shareholder Group
have agreed to cause shares of Common Stock beneficially owned by them to be
voted in favor of the transactions contemplated by this Agreement and to
contribute their shares of Common Stock to Merger Corp. in order to facilitate
such transactions;
WHEREAS, the Company Board has established a special committee of the
Company Board comprised solely of directors unaffiliated with the Shareholder
Group (the "Special Committee") to consider such proposal and make a
recommendation to the Company Board with respect thereto;
WHEREAS, the Special Committee, following extensive negotiations with the
Shareholder Group and its advisors concerning the Shareholder Group's proposal,
and the Company Board, based on the recommendation of the Special Committee, (a)
have determined that the merger of Merger Corp. with and into the Company, with
the Company as the surviving corporation (the "Merger"), upon the terms and
subject to the conditions set forth in this Agreement, is advisable, fair to and
in the best interests of the Company and its shareholders (other than Merger
Corp. and its Affiliates), (b) have approved and adopted this Agreement and the
Merger, pursuant to which each share of Common Stock issued and outstanding
immediately prior to the Effective Time (as defined below), except for shares of
Common Stock owned, directly or indirectly, by Merger Corp. or the Company, will
be converted into the right to receive $3.20 in cash (the "Per Share Amount"),
and (c) have recommended that the Company's shareholders approve this Agreement
and the Merger;
WHEREAS, the board of directors of Merger Corp. has determined that this
Agreement and the Merger are advisable, fair to and in the best interests of
Merger Corp. and its shareholders and have approved and adopted this Agreement
and the Merger; and
WHEREAS, Merger Corp. and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and also to prescribe various conditions to the Merger;
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NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties agree as
follows:
ARTICLE I
CERTAIN DEFINITIONS
(a) As used in this Agreement, the following terms shall have the
respective meanings set forth below:
"Acquisition Agreement" shall have the meaning set forth in Section
5.10(d).
"Affiliate" of a specified Person means a Person who, directly or
indirectly, through one or more intermediaries controls, is controlled by
or is under common control with such specified Person; provided that as
used in this Agreement with respect to Merger Corp., the term "Affiliate"
or "Affiliates" of Merger Corp. does not include the Company and its
Subsidiaries. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlled by" and "under common control
with") means the possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of a Person, whether
through the ownership of voting shares, by contract or otherwise.
"Agreement" shall have the meaning set forth in the preamble.
"Articles of Merger" shall have the meaning set forth in Section 2.2.
"Award List" shall have the meaning set forth in Section 2.9(a).
"Benefit Plans" means all material employee, consultant or director
benefit plans, arrangements or agreements, including any employee welfare
benefit plan within the meaning of Section 3.1 of ERISA, any employee
pension benefit plan within the meaning of Section 3(2) of ERISA (whether
or not such plan is subject to ERISA) and any material bonus, incentive,
deferred compensation, vacation, stock purchase, stock option, severance,
termination, indemnity, employment, change of control or fringe benefit
plan, program, arrangement or agreement that provides benefits to any
current or former employee or director of the Company or any of its
Subsidiaries or any beneficiary or dependant thereof or with respect to
which the Company or any of its Subsidiaries could have a material
liability.
"Certificate" shall have the meaning set forth in Section 2.8(d).
"Closing" shall have the meaning set forth in Section 2.2.
"Closing Date" shall have the meaning set forth in Section 2.2.
"Common Stock" shall have the meaning set forth in the recitals.
"Company" shall have the meaning set forth in the preamble.
"Company Board" shall have the meaning set forth in the recitals.
"Company Competing Transaction" means any recapitalization, merger,
consolidation or other business combination involving the Company, or any
direct or indirect acquisition of shares of Common Stock representing 15%
or more of the voting power of the Company or any material portion of the
assets (except for acquisitions of assets in the ordinary course of
business consistent with past practice) of the Company and its
Subsidiaries, or any combination of the foregoing (other than the Merger).
"Company Disclosure Schedule" means the schedule of disclosures
delivered by the Company to Merger Corp. concurrent with the execution of
this Agreement.
"Company Material Adverse Effect" means any event, change,
circumstance, effect or state of facts that is or is reasonably expected to
be materially adverse to (a) the business, results of
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operations, condition (financial or otherwise), assets or liabilities of
the Company and its Subsidiaries, taken as a whole, or (b) the ability of
the Company to consummate any of the transactions contemplated by this
Agreement and the Shareholders Agreement, including the Merger, except to
the extent that such adverse effect results from (i) general economic
conditions or changes therein, (ii) changes in, or events or conditions
affecting, the businesses in which the Company and its Subsidiaries
operate, but only to the extent that such changes, events or conditions do
not disproportionately affect the Company and its Subsidiaries, or (iii)
the announcement or execution of the transactions contemplated by this
Agreement.
"Company Permits" means all permits, licenses, variances, exemptions,
orders and approvals of all Governmental Entities necessary for the Company
and its Subsidiaries to own, lease or operate their properties and assets
and to carry on their businesses as now conducted.
"Company Rights" shall have the meaning set forth in Section 3.2(a).
"Company Rights Agreement" shall have the meaning set forth in Section
3.2(a).
"Company SEC Documents" means all forms, schedules, statements and
other documents filed by the Company under the Securities Act or the
Exchange Act since October 27, 2002 and prior to the Closing Date,
collectively, as the same may have been amended or restated and including
all exhibits and schedules thereto and documents incorporated by reference
therein.
"Company Securities" shall have the meaning set forth in Section
3.2(a).
"Company Shareholder Approval" means the vote for the approval of this
Agreement and the Merger by a majority of all the votes entitled to be cast
at the Shareholders Meeting.
"Company Stock Plans" means, collectively, (i) the Quality Dining,
Inc. 1993 Stock Option Plan, (ii) the Quality Dining, Inc. 1993 Outside
Directors Plan, (iii) the Quality Dining, Inc. 1997 Stock Option and
Incentive Plan, and (iv) the Quality Dining, Inc. 1999 Outside Directors
Plan.
"Debt Financing" shall have the meaning set forth in Section 4.7.
"Effective Time" shall have the meaning set forth in Section 2.2.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Existing Policy" shall have the meaning set forth in Section 5.8(c).
"Financing Commitment Letters" shall have the meaning set forth in
Section 4.7.
"Financing Documents" shall have the meaning set forth in Section
5.5(b).
"GAAP" means U.S. generally accepted accounting principles.
"Governmental Entity" shall have the meaning set forth in Section 3.5.
"IBCL" means the
Indiana Business Corporation Law, as amended and in
effect from time to time.
"Indemnified Parties" shall have the meaning set forth in Section
5.8(b).
"Lenders" shall have the meaning set forth in Section 4.7.
"Lien" means, with respect to any asset (including any security), any
security interests, liens, claims, charges, title defects, deficiencies or
exceptions (including, with respect to Real Property Leases, subleases,
assignments, licenses or other agreements granting to any third party any
interest in a Real Property Lease or any right to the use or occupancy of
any real property subject to such lease), mortgages, pledges, easements,
encroachments, restrictions on use, rights-of-way, rights of first refusal,
options, conditional sales or other title retention agreements, covenants,
conditions or other
A-3
similar restrictions (including restrictions on transfer) or other
encumbrances of any nature whatsoever in respect of such asset.
"Material Contract" means all of the contracts required to be
described in or filed as exhibits to the annual report on Form 10-K filed
by the Company with the SEC in respect of the fiscal year ended October 26,
2003.
"Merger" shall have the meaning set forth in the recitals.
"Merger Consideration" shall have the meaning set forth in Section
2.8(d).
"Merger Corp." shall have the meaning set forth in the preamble.
"Merger Corp. Expenses" means all documented out-of-pocket fees and
expenses actually and reasonably incurred by Merger Corp. and its
Affiliates or on their behalf in connection with any of the transactions
contemplated by this Agreement and the Shareholders Agreement (including
fees and expenses payable to financing sources, investment bankers,
consultants, counsel to any of the foregoing, accountants and legal
counsel), not to exceed $750,000.
"Merger Corp. Material Adverse Effect" means any event, change,
circumstance, effect or state of facts that is or is reasonably expected to
be materially adverse to the ability of Merger Corp. to consummate the
transactions contemplated by this Agreement or by the Shareholders
Agreement.
"Outside Date" shall mean April 9, 2005.
"Paying Agent" shall have the meaning set forth in Section 2.10(a).
"Per Share Amount" shall have the meaning set forth in the recitals.
"Permitted Liens" means (a) Liens for Taxes or governmental
assessments or similar obligations the payment of which is not yet due and
payable or delinquent, or for Taxes the validity of which are being
contested in good faith by appropriate proceedings, (b) statutory Liens of
landlords and Liens of carriers, warehousemen, mechanics, materialmen, and
other similar Liens imposed by applicable law incurred in the ordinary
course of business for sums not yet delinquent or being contested in good
faith, (c) Liens relating to deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance,
and other types of social security, and (d) Liens securing executory
obligations under any lease, regardless of whether it constitutes an
"operating lease" or a "capitalized lease" under GAAP.
"Person" means an individual, corporation, limited liability company,
partnership, association, trust, unincorporated organization, other entity
or "group" (as defined in the Exchange Act).
"Preferred Stock" shall have the meaning set forth in the recitals.
"Proxy Statement" shall have the meaning set forth in Section 5.2.
"Real Property Lease" shall mean any contract or agreement to which
the Company or any of its Subsidiaries is a party relating to the lease of
real property used by the Company or its Subsidiaries.
"Representatives" means a Person's directors, officers, employees,
investment bankers, consultants, attorneys, agents and other
representatives.
"Retained Restricted Share Participant" shall have the meaning set
forth in Section 2.9(a).
"Retained Restricted Shares" shall have the meaning set forth in
Section 2.9(a).
"Restricted Shares" means shares of restricted stock granted under any
of the Company Stock Plans.
"Retained Option Participants" shall have the meaning set forth in
Section 2.9(a).
"Retained Options" shall have the meaning set forth in Section 2.9(a).
A-4
"Schedule 13E-3" means the Schedule 13E-3 to be filed by the Company,
Merger Corp. and the members of the Shareholder Group with the SEC in
connection with the Merger and the other transactions contemplated hereby,
including any and all amendments thereto.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Series A Preferred Stock" shall have the meaning set forth in the
recitals.
"Series B Preferred Stock" shall have the meaning set forth in the
recitals.
"Shareholders Agreement" shall have the meaning set forth in the
recitals.
"Shareholder Group" shall have the meaning set forth in the recitals.
"Shareholders Meeting" shall have the meaning set forth in Section
5.1.
"Special Committee" shall have the meaning set forth in the recitals.
"Stock Option" means an option to purchase shares of Common Stock.
"Subsidiary" means, with respect to any Person, any other Person,
whether incorporated or unincorporated, of which (a) such first Person or
any other Subsidiary of such first Person is a general partner (excluding
such partnerships where such first Person or any Subsidiary of such first
Person does not have a majority of the voting interest in such partnership)
or (b) at least a majority of the securities or other interests having by
their terms ordinary voting power to elect a majority of the board of
directors or others performing similar functions with respect to such
corporation or other organization is, directly or indirectly, owned or
controlled by such first Person or by any one or more of its Subsidiaries,
or by such first Person and one or more of its Subsidiaries.
"Superior Transaction" shall have the meaning set forth in Section
5.10(d).
"Surviving Corporation" shall have the meaning set forth in Section
2.1.
"Tail Period" shall have the meaning set forth in Section 5.8(c).
"Tax Returns" means all reports, returns, information returns,
statements, declarations and certifications required to be filed with
respect to Taxes.
"Taxes" means any income, alternative or add-on minimum tax, gross
receipts, sales, use, transfer, gains, ad valorem, franchise, profits,
license, withholding, payroll, employment, excise, severance, stamp,
occupation, premium, property, environmental or windfall profit tax,
custom, duty or other tax, or other like assessment or charge, together
with any related interest, penalty, addition to tax or additional amount.
"Transmittal Documents" shall have the meaning set forth in Section
2.10(b).
(b) Construction of Certain Terms and Phrases. Unless the context of this
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 Agreement; (iv) the words
"include," "includes" and "including" shall be deemed to be followed by the
words "without limitation"; (v) the term "lease" also includes subleases, the
term "lessor" also includes any sublessor, and the term "lessee" also includes
any sublessee; and (vi) the phrases "ordinary course of business" and "ordinary
course of business consistent with past practice" refer to the business and
practice of the Company or a Subsidiary. Whenever this Agreement refers to a
number of days, such number shall refer to calendar days unless otherwise
specified. All accounting terms used herein and not expressly defined herein
shall have the meanings given to them under GAAP.
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ARTICLE II
THE MERGER
SECTION 2.1. The Merger. Subject to the conditions of this Agreement and
in accordance with the IBCL, the parties hereto shall consummate the Merger
pursuant to which (a) Merger Corp. shall merge with and into the Company and the
separate corporate existence of Merger Corp. shall thereupon cease, (b) the
Company shall be the surviving corporation in the Merger (sometimes referred to
as the "Surviving Corporation") and shall continue to be governed by the laws of
the State of
Indiana, and (c) the corporate existence of the Company, with all
of its rights, privileges, immunities, powers and franchises, shall continue
unaffected by the Merger.
SECTION 2.2. Effective Time. As soon as practicable after the
satisfaction or waiver (to the extent permitted by applicable law) of the
conditions set forth in Article VI, the parties hereto shall cause articles of
merger in such form as required by, and executed in accordance with, the
relevant provisions of the IBCL (the "Articles of Merger") to be executed and
filed on the Closing Date (or on such other date as Merger Corp. and the Company
may agree) with the Secretary of State of the State of
Indiana. The closing of
the Merger (the "Closing") will take place (a) at the offices of the Company,
0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxx 00000, at 10:00 a.m.
Indiana time
on a date as soon as reasonably practicable (but in any event no later than the
third business day) after satisfaction or waiver (to the extent permitted by
applicable law) of the conditions set forth in Article VI (other than those
conditions that are to be satisfied at the Closing, but subject to the
satisfaction or waiver (to the extent permitted by applicable law) of such other
conditions), or (b) at such other place or time and/or such other date as the
parties may agree. The date on which the Closing occurs is referred to in this
Agreement as the "Closing Date." The Merger shall become effective at such time
as the Articles of Merger are duly filed with the Secretary of State of the
State of
Indiana or at such later date and time as the parties shall agree and
as shall be specified in the Articles of Merger (the time the Merger becomes
effective, the "Effective Time").
SECTION 2.3. Effects of the Merger. The Merger shall have the effects as
set forth in Section 23-1-40-6 of the IBCL. Without limiting the generality of
the foregoing, and subject thereto, at the Effective Time, all the properties,
rights, privileges, powers and franchises of the Company and Merger Corp. shall
vest in the Surviving Corporation, and all debts, liabilities and duties of the
Company and Merger Corp. shall become the debts, liabilities and duties of the
Surviving Corporation.
SECTION 2.4. Articles of Incorporation and Bylaws.
(a) The articles of incorporation of the Company in effect immediately
prior to the Effective Time, as amended in accordance with the Articles of
Merger, shall be the articles of incorporation of the Surviving Corporation
until amended in accordance with its terms and applicable law.
(b) The bylaws of Merger Corp. in effect immediately prior to the Effective
Time shall be the bylaws of the Surviving Corporation until amended in
accordance with its terms and applicable law.
SECTION 2.5. Directors. The directors of Merger Corp. immediately prior
to the Effective Time shall be the initial directors of the Surviving
Corporation, each to hold office in accordance with the articles of
incorporation and bylaws of the Surviving Corporation until such director's
successor is duly elected or appointed and qualified.
SECTION 2.6. Officers. The officers of the Company immediately prior to
the Effective Time shall be the initial officers of the Surviving Corporation,
each to hold office in accordance with the articles of incorporation and bylaws
of the Surviving Corporation until such officer's successor is duly elected or
appointed and qualified.
SECTION 2.7. Subsequent Actions. If, at any time after the Effective
Time, the Surviving Corporation shall determine in good faith or be advised that
any deeds, bills of sale, assignments, assurances or any other actions or things
are necessary or desirable to vest, perfect or confirm of record or otherwise in
the Surviving Corporation its right, title or interest in, to or under any of
the rights, properties
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or assets of either of the Company or Merger Corp. acquired or to be acquired by
the Surviving Corporation as a result of, or in connection with, the Merger or
otherwise to carry out this Agreement, the officers and directors of the
Surviving Corporation shall be authorized to execute and deliver, in the name
and on behalf of either the Company or Merger Corp., all such deeds, bills of
sale, assignments and assurances and to take and do, in the name and on behalf
of each of such corporations or otherwise, all such other actions and things as
may be necessary or desirable to vest, perfect or confirm any and all right,
title and interest in, to and under such rights, properties or assets in the
Surviving Corporation or otherwise to carry out this Agreement.
SECTION 2.8. Effect on the Capital Stock. As of the Effective Time, by
virtue of the Merger and without any action on the part of the holder thereof:
(a) Each issued and outstanding share of common stock of Merger Corp.
immediately prior to the Effective Time shall be converted into one fully
paid and nonassessable share of common stock, no par value, of the
Surviving Corporation following the Merger.
(b) Each share of Common Stock that is owned by Merger Corp. or any of
its Affiliates immediately prior to the Effective Time shall automatically
be canceled and retired and shall cease to exist, and no cash, Common Stock
or other consideration, including the Merger Consideration, shall be
delivered or deliverable in exchange therefor.
(c) Each share of Common Stock that is owned by or held in the
treasury of the Company immediately prior to the Effective Time shall
automatically be canceled and retired and shall cease to exist, and no
cash, Common Stock or other consideration, including the Merger
Consideration, shall be delivered or deliverable in exchange therefor.
(d) Shares of Common Stock issued and outstanding immediately prior to
the Effective Time (other than any shares to be canceled pursuant to
Sections 2.8(b) and 2.8(c)) held by each shareholder of the Company shall
be converted into the right to receive an amount in cash (the "Merger
Consideration") equal to the product of (A) the number of shares of Common
Stock owned by such shareholder immediately prior to the Effective Time,
and (B) the Per Share Amount. The Merger Consideration shall be payable to
the holder of shares of Common Stock, without interest thereon, upon the
surrender of the certificate or certificates formerly representing such
shares of Common Stock (each, a "Certificate") in the manner provided in
Section 2.10, less any required withholding of U.S. federal, state, local
or foreign Taxes. From and after the Effective Time, all such shares of
Common Stock shall no longer be outstanding and shall be deemed to be
canceled and retired and shall cease to exist, and each holder of shares of
Common Stock shall cease to have any rights with respect thereto, except
the right to receive the Merger Consideration therefor in accordance with
Section 2.10.
SECTION 2.9. Treatment of Options and Restricted Shares.
(a) Section 2.9(a) of the Company Disclosure Schedule contains a true and
complete list (the "Award List") of each Stock Option (along with the number of
shares of Common Stock underlying the Stock Options, the exercise prices thereof
and the vesting schedule thereof) and each award of Restricted Shares (along
with the number of shares of Common Stock underlying the Restricted Shares and
the vesting schedule thereof), in either case granted under the Company Stock
Plans and outstanding as of the date hereof. Stock Options held by any Person
permitted by Merger Corp. in writing on or after the date hereof to convert his
or her Stock Options into options to purchase shares of common stock of the
Surviving Corporation following the Effective Time (collectively, the "Retained
Option Participants"), to the extent such Person agrees to have such Stock
Options treated as Retained Options hereunder on terms mutually satisfactory to
Merger Corp. and such Person, are referred to as "Retained Options". Restricted
Shares held by any Person permitted by Merger Corp. in writing on or after the
date hereof to convert his or her Restricted Shares into shares of common stock
of the Surviving Corporation following the Effective Time (collectively,
"Retained Restricted Share Participants"), to the extent such Person agrees to
have such Restricted Shares treated as Retained Restricted Shares hereunder on
terms mutually satisfactory to
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Merger Corp. and such Person, are referred to as "Retained Restricted Shares".
Merger Corp. may require that a Retained Option Participant, as a condition to
having the Stock Options held by such Retained Option Participant treated as
Retained Options, and that a Retained Restricted Share Participant, as a
condition to having the Restricted Shares held by such Retained Restricted Share
Participant treated as Retained Restricted Shares, agree in writing to be
subject to certain restrictions on the transferability of any shares of common
stock of the Surviving Corporation that are acquired after the Effective Time
upon the exercise of such Retained Options or the vesting of such Retained
Restricted Shares, as the case may be.
(b) As provided in the Company Stock Plans and the individual award
agreements, (i) as of the Effective Time, each outstanding Stock Option, other
than any Retained Options, shall represent the right to receive the excess of
the Per Share Amount over the exercise price per share, if any, multiplied by
the number of shares of Common Stock subject to such Stock Option, and (ii) as
of the time of the Company Shareholder Approval, each outstanding Restricted
Share, other than any Retained Restricted Shares, shall vest and the
restrictions thereon shall lapse, the Company will deliver to the holder thereof
a Certificate representing such Restricted Share and such Restricted Share shall
represent the right to receive the Merger Consideration subject to compliance
with the terms of Section 2.10.
(c) As soon as practicable following the Effective Time, the Surviving
Corporation shall pay to the holder of each outstanding Stock Option (other than
Retained Options) with an option exercise price that is less than the Per Share
Amount, in full satisfaction of such Stock Option, an amount in cash (less any
required withholding of U.S. federal, state, local or foreign Taxes) determined
in accordance with Section 2.9(b)(i).
(d) The Company shall take all actions reasonably necessary, with Merger
Corp.'s assistance, to ensure that, effective as of the Effective Time, no
holder of (i) Stock Options, other than the Retained Option Participants, will
have any right to receive any shares of capital stock of the Company or, if
applicable, the Surviving Corporation, upon exercise of any Stock Option or any
other event, or (ii) Restricted Shares, other than Retained Restricted Share
Participants, will have any right to receive any shares of capital stock of the
Company or, if applicable, the Surviving Corporation, upon vesting of any
Restricted Shares or any other event, in either case following the Effective
Time.
SECTION 2.10. Payment for Shares.
(a) Prior to the Effective Time, Merger Corp. shall designate a bank or
trust company reasonably acceptable to the Company to act as paying agent in
connection with the Merger (the "Paying Agent") pursuant to a paying agent
agreement providing for the matters set forth in this Section 2.10 and otherwise
reasonably satisfactory to the Company. At or promptly following the Effective
Time, Merger Corp. shall, or shall cause the Surviving Corporation to, make
available to the Paying Agent for the benefit of holders of shares of Common
Stock (including Restricted Shares, other than Retained Restricted Shares), as
needed, the aggregate consideration to which such holders of shares of Common
Stock (including such Restricted Shares) shall be entitled at the Effective Time
pursuant to Section 2.8(d) and Section 2.9(b)(ii). Such funds shall be invested
in time deposits, treasury bills, or money market or other similar instruments
as directed by the Surviving Corporation pending payment thereof by the Paying
Agent to holders of the shares of Common Stock (including such Restricted
Shares). Earnings from such investments shall be the sole and exclusive property
of the Surviving Corporation, and no part thereof shall accrue to the benefit of
the holders of shares of Common Stock (including such Restricted Shares).
(b) Promptly after the Effective Time, the Paying Agent shall mail to each
record holder, as of the Effective Time, of an outstanding Certificate(s), whose
shares of Common Stock were converted pursuant to Section 2.8(d) into the right
to receive the Merger Consideration (i) a letter of transmittal (which shall
specify that delivery shall be effected, and risk of loss and title to the
Certificate(s) shall pass, only upon proper delivery of the Certificate(s) to
the Paying Agent and shall be in such form and have such other provisions not
inconsistent with this Agreement as Merger Corp. may reasonably specify), and
(ii) instructions for use in effecting the surrender of the Certificate(s) in
exchange for payment of the Merger Consideration (together, the "Transmittal
Documents"). Upon surrender of a Certificate or
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Certificates for cancellation to the Paying Agent or to such other agent or
agents as may be appointed by Merger Corp., together with such letter of
transmittal and any other required documents, duly executed, the holder of such
Certificate(s) shall be entitled to receive in exchange therefor (as promptly as
practicable) the Merger Consideration in respect of all shares of Common Stock
formerly represented by such surrendered Certificate(s), without any interest
thereon, pursuant to Section 2.8(d). The Certificate(s) so surrendered shall
forthwith be canceled. If payment of the Merger Consideration is to be made to a
Person other than the Person in whose name the surrendered Certificate(s) is
registered, it shall be a condition of payment that the Certificate(s) so
surrendered shall be properly endorsed or shall otherwise be in proper form for
transfer, that the signatures on the Certificate(s) or any related stock power
shall be properly guaranteed and that the Person requesting such payment shall
have established to the satisfaction of Merger Corp. that any transfer and other
Taxes required by reason of the payment of the Merger Consideration to a Person
other than the registered holder of the Certificate(s) surrendered have been
paid or are not applicable. Until surrendered in accordance with the provisions
of and as contemplated by this Section 2.10, any Certificate(s) (other than
Certificate(s) representing shares of Common Stock subject to Sections 2.8(b)
and (c)) shall be deemed, at any time from and after the Effective Time, to
represent only the right to receive the Merger Consideration in cash without
interest as contemplated by this Section 2.10. Upon the surrender of a
Certificate(s) in accordance with the terms and instructions contained in the
Transmittal Documents, the Surviving Corporation shall cause the Paying Agent to
pay to the holder of such Certificate(s) in exchange therefor cash in an amount
equal to the Merger Consideration (other than Certificate(s) representing shares
of Common Stock subject to Sections 2.8(b) and (c)).
(c) At the Effective Time, the stock transfer books of the Company shall be
closed and there shall not be any further registration of transfers of any
shares of capital stock thereafter on the records of the Company. If, after the
Effective Time, a Certificate (other than those subject to Sections 2.8(b) and
(c)) is presented to the Surviving Corporation, it shall be canceled and
exchanged for the consideration provided for, and in accordance with the
procedures set forth, in this Section 2.10. No interest shall accrue or be paid
on any cash payable upon the surrender of a Certificate.
(d) From and after the Effective Time, the holders of Certificates shall
cease to have any rights with respect to shares of Common Stock represented by
such Certificate except as otherwise provided herein or by applicable law.
(e) If any Certificate shall have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the Person claiming such Certificate to
be lost, stolen or destroyed, the Surviving Corporation shall pay or cause to be
paid in exchange for such lost, stolen or destroyed Certificate the relevant
portion of the Merger Consideration in accordance with Section 2.8(d) for shares
of Common Stock represented thereby. When authorizing such payment of any
portion of the Merger Consideration in exchange therefor, the board of directors
of the Surviving Corporation may, in its discretion and as a condition precedent
to the payment thereof, require the owner of such lost, stolen or destroyed
Certificate to give the Surviving Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the Surviving
Corporation with respect to the Certificate alleged to have been lost, stolen or
destroyed.
(f) Promptly following the date that is one year after the Effective Time,
the Surviving Corporation shall be entitled to require the Paying Agent to
deliver to it any cash (including any interest received with respect thereto),
Certificates and other documents in its possession relating to the Merger, that
had been made available to the Paying Agent and that have not been disbursed to
holders of Certificates, and thereafter such holders shall be entitled to look
to the Surviving Corporation (subject to abandoned property, escheat or similar
laws) only as a general creditor thereof with respect to any portion of the
Merger Consideration payable upon due surrender of their Certificates, without
any interest thereon.
(g) The Merger Consideration paid in the Merger shall be net to the holder
of shares of Common Stock in cash, subject to reduction only for any applicable
federal, state, local or foreign withholding Taxes. To the extent that amounts
are so withheld, such amounts shall be treated for all purposes of this
Agreement as having been paid to the Person in respect of which such withholding
was made.
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(h) Anything to the contrary in this Section 2.10 notwithstanding, to the
fullest extent permitted by law, none of the Paying Agent, Merger Corp. or the
Surviving Corporation shall be liable to any holder of a Certificate for any
amount properly delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law. If Certificates are not surrendered
prior to two years after the Effective Time, unclaimed funds payable with
respect to such Certificates shall, to the extent permitted by applicable law,
become the property of the Surviving Corporation, free and clear of all claims
or interest of any Person previously entitled thereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the Company SEC Documents filed on or prior to the
date hereof or in the Company Disclosure Schedule (it being understood that any
matter set forth in any section of the Company Disclosure Schedule shall be
deemed disclosed with respect to any other section of the Company Disclosure
Schedule to the extent such matter is disclosed in a way as to make its
relevance to the information called for by such other section reasonably clear
on its face), the Company hereby represents and warrants to Merger Corp. as
follows:
SECTION 3.1. Organization and Qualification. The Company is a corporation
validly existing under the laws of the State of Indiana and has all requisite
corporate power and authority and all necessary governmental approvals to own,
lease and operate its properties and to carry on its businesses as now being
conducted, except where the failure to have such power, authority and
governmental approvals, would not, individually or in the aggregate, have a
Company Material Adverse Effect. The Company SEC Documents include accurate and
complete copies of the Company's articles of incorporation and bylaws, as
currently in effect.
SECTION 3.2. Capitalization of the Company.
(a) The authorized capital stock of the Company consists of: (i) 50,000,000
shares of Common Stock and (ii) 5,000,000 shares of Preferred Stock, (A) 141,450
shares of which are designated as shares of Series A Preferred Stock and (B)
180,000 shares of which are designated as shares of Series B Preferred Stock. As
of November 1 2004, (i) 11,609,099 shares of Common Stock were issued and
outstanding and 1,360,573 shares were held in treasury and (ii) no shares of
Preferred Stock were issued and outstanding or held in treasury. All of the
outstanding shares of Common Stock have been validly issued, and are fully paid,
nonassessable and free of preemptive rights. Except as set forth in Section
2.9(a) of the Company Disclosure Schedule, no shares of Common Stock are subject
to issuance pursuant to the Company Stock Plans. Other than as contemplated in
this Agreement, since November 1, 2004 no shares of capital stock of the Company
have been issued other than pursuant to the exercise of Stock Options set forth
on the Award List, and no Stock Options or Restricted Shares have been granted.
Except as set forth above or in the next succeeding sentence, there are no
outstanding (i) shares of capital stock (including Restricted Shares) or other
voting securities of the Company, (ii) securities of the Company or any of its
Subsidiaries convertible into or exchangeable for shares of capital stock or
voting securities of the Company, (iii) options or other rights to acquire from
the Company or any of its Subsidiaries, or obligations of the Company or any of
its Subsidiaries to issue or sell, any capital stock, voting securities or
securities convertible into or exchangeable for capital stock or voting
securities of the Company, or (iv) equity equivalents, interests in the
ownership or earnings of the Company or other similar rights (collectively,
"Company Securities"). Each share of Common Stock carries with it an associated
share purchase right (collectively, the "Company Rights") issued pursuant to the
Rights Agreement between the Company and KeyCorp. Shareholder Services, Inc. as
Rights Agent, dated as of March 27, 1997 (as heretofore amended, the "Company
Rights Agreement"), which entitles the holder thereof to purchase, on the
occurrence of certain events, shares of Series B Preferred Stock or Common
Stock. Other than as contemplated by this Agreement, there are no outstanding
obligations of the Company or any of its Subsidiaries to repurchase, redeem or
otherwise acquire any Company Securities.
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(b) The shares of Common Stock constitute the only class of equity
securities of the Company or any of its Subsidiaries registered or required to
be registered under the Exchange Act. No Subsidiary of the Company owns any
Company Securities.
SECTION 3.3. Authority Relative to this Agreement.
(a) The Company has all the necessary corporate power and authority to
execute and deliver this Agreement and, subject to obtaining Company Shareholder
Approval, to consummate the transactions contemplated hereby in accordance with
the terms hereof. The execution, delivery and performance of this Agreement by
the Company and the consummation by it of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate action (other
than obtaining the Company Shareholder Approval), and, except for obtaining the
Company Shareholder Approval, no other corporate action or corporate proceeding
on the part of the Company is necessary to authorize the execution and delivery
by the Company of this Agreement and the consummation by it of the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by the Company and, assuming due and valid authorization, execution
and delivery by Merger Corp., constitutes a valid, legal and binding agreement
of the Company, enforceable against the Company in accordance with its terms,
except that such enforcement may be subject to (i) any bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other laws, now or hereafter
in effect, affecting creditors' rights generally, and (ii) the effect of general
principles of equity (regardless of whether enforceability is considered in a
proceeding of law or equity).
(b) The Special Committee (i) has been duly authorized and constituted, and
(ii) at a meeting thereof duly called and held on November 9, 2004, by a vote of
three (3) to one (1), (A) determined that this Agreement and the Merger are fair
to and in the best interests of the Company and its shareholders (other than
Merger Corp. and its Affiliates), (B) determined that this Agreement and the
Merger should be approved and declared advisable by the Company Board and (C)
resolved to recommend that the Company's shareholders approve this Agreement and
the Merger.
(c) The Company Board, at a meeting thereof duly called and held on
November 9, 2004, based on the recommendation of the Special Committee, by a
vote of six (6) to one (1), (i) determined that this Agreement and the Merger
are fair to and in the best interests of the Company and its shareholders (other
than Merger Corp. and its Affiliates), (ii) approved, adopted and declared
advisable this Agreement and the Merger, and (iii) resolved to recommend that
the Company's shareholders approve this Agreement and the Merger.
SECTION 3.4. SEC Filings. None of the information included in the Proxy
Statement or the Schedule 13E-3 will (in the case of the Schedule 13E-3) at the
time of its filing with the SEC or (in the case of the Proxy Statement) at the
time mailed to the Company's shareholders or at the time of the Shareholders
Meeting, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which such statements
are made, not misleading, except that no representation is made by the Company
with respect to statements made in or omitted from the Proxy Statement or the
Schedule 13E-3 relating to Merger Corp. or any of its Affiliates based on
information supplied by Merger Corp. or any of its Affiliates for inclusion or
incorporation by reference in the Proxy Statement or the Schedule 13E-3. The
Proxy Statement and the Schedule 13E-3 will comply as to form in all material
respects with the requirements of the Exchange Act.
SECTION 3.5. Consents and Approvals, No Violations. No filing with or
notice to, and no permit, authorization, consent or approval of, any federal,
state, local or foreign court or tribunal or administrative, governmental,
arbitral or regulatory body, agency or authority (a "Governmental Entity"), is
required on the part of the Company or any of its Subsidiaries for the
execution, delivery and performance by the Company of this Agreement or the
consummation by the Company of the transactions contemplated hereby, except (a)
pursuant to the applicable requirements of the Securities Act and the Exchange
Act, (b) the filing of the Schedule 13E-3 and the Proxy Statement, (c) the
filing of the Articles of Merger pursuant to the IBCL, or (d) where the failure
to obtain such permits, authorizations, consents or
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approvals or to make such filings or give such notice would not, individually or
in the aggregate, have a Company Material Adverse Effect. Neither the execution,
delivery and performance of this Agreement by the Company, nor the consummation
by the Company of the transactions contemplated hereby, will (i) conflict with
or result in any breach of any provision of the respective articles of
incorporation or bylaws (or similar governing documents) of the Company or of
any its Subsidiaries, (ii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give rise to
any right of termination, amendment, cancellation, alteration or acceleration,
or result in the creation of a Lien on any property or asset of the Company or
any of its Subsidiaries, or trigger any rights of first refusal) under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, license, contract, agreement or other instrument or obligation to which
the Company or any of its Subsidiaries is a party or by which any of them or any
of their respective properties, capital stock or assets may be bound, or (iii)
violate any order, writ, injunction, decree, law, statute, rule or regulation
applicable to the Company or any of its Subsidiaries or any of their respective
properties or assets, except in the case of (ii) or (iii) above for violations,
breaches, defaults or other occurrences that would not, individually or in the
aggregate, have a Company Material Adverse Effect.
SECTION 3.6. State Takeover Statute Inapplicable. The Company Board and
the Special Committee have approved and adopted this Agreement and the
transactions contemplated hereby as required under any applicable state takeover
laws or any of the Company's organizational documents so that the provisions of
any "anti-takeover", "fair price", "moratorium", "control share acquisition" or
similar laws or regulations contained in the IBCL will not apply to this
Agreement or any of the transactions contemplated hereby.
SECTION 3.7. Company Rights Agreement. The Company Rights Agreement has
been amended to (a) render the Company Rights Agreement inapplicable to the
Merger and the other transactions contemplated by this Agreement, (b) ensure
that (i) neither Merger Corp. nor any of its Affiliates is an Acquiring Person
(as defined in the Company Rights Agreement) pursuant to the Company Rights
Agreement, (ii) a Distribution Date (as such term is defined in the Company
Rights Agreement) does not occur solely by reason of the approval, execution or
delivery of this Agreement, the consummation of the Merger or the consummation
of the other transactions contemplated by this Agreement and (iii) all
outstanding Company Rights will expire or otherwise terminate immediately prior
to the Effective Time.
SECTION 3.8. Brokers. Other than Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Financial
Advisers, Inc. and Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital, true and complete
copies of whose engagement agreements have been delivered to Merger Corp., no
broker, finder, investment banker or other intermediary is or might be entitled
to any brokerage, finders' or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of the Company, the Company Board or the Special Committee.
SECTION 3.9. Opinion of Financial Advisor. Xxxxxxxx Xxxxx Xxxxxx & Xxxxx
Financial Advisers, Inc. and Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital have
delivered their opinion to the effect that, as of the date of such opinion, the
consideration to be received in the Merger by the holders of Common Stock (other
than Merger Corp. and its Affiliates) is fair from a financial point of view to
such holders.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF MERGER CORP.
Merger Corp. hereby represents and warrants to the Company as follows:
SECTION 4.1. Organization. Merger Corp. is a corporation validly existing
under the laws of the State of Indiana and has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted, except where the failure to have such power and
authority would not, individually or in the aggregate, have a Merger Corp.
Material Adverse Effect. Merger Corp. was formed solely for the purpose of
engaging in the transactions contemplated by
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this Agreement. Merger Corp. has not engaged in any activities, owned any assets
or been subject to any liabilities, except as is necessary to effect the Merger.
SECTION 4.2. Authority Relative to this Agreement. Merger Corp. has all
necessary corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized by the board of directors and the
shareholders of Merger Corp., and no other corporate or similar proceedings on
the part of Merger Corp. are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Merger Corp. and, assuming due and valid
authorization, execution and delivery by the other parties thereto, constitutes
a valid, legal and binding agreement of Merger Corp., enforceable against Merger
Corp. in accordance with its terms, except that such enforcement may be subject
to (a) any bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other laws, now or hereafter in effect, affecting creditors' rights
generally, and (b) the effect of general principles of equity (regardless of
whether enforceability is considered in a proceeding of law or equity).
SECTION 4.3. Consents and Approvals; No Violations. (a) No filing with or
notice to, and no permit, authorization, consent or approval of, any
Governmental Entity is required on the part of Merger Corp. for the execution
and delivery by Merger Corp. of this Agreement or the consummation by Merger
Corp. of the transactions contemplated hereby, except (a) pursuant to the
applicable requirements of the Securities Act and the Exchange Act, (b) the
filing of the Schedule 13E-3, (c) the filing of the Articles of Merger pursuant
to the IBCL, or (d) where the failure to obtain such permits, authorizations,
consents or approvals or to make such filings or give such notice would not,
individually or in the aggregate, have a Merger Corp. Material Adverse Effect.
Neither the execution, delivery and performance of this Agreement by Merger
Corp. nor the consummation by Merger Corp. of the transactions contemplated
hereby will (a) conflict with or result in any breach of any provision of the
articles of incorporation or bylaws of Merger Corp., (b) result in a violation
or breach of, or constitute (with or without due notice or lapse of time or
both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration, or result in the creation of a Lien on any
property or asset of Merger Corp., or trigger any rights of first refusal)
under, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, lease, license, contract, agreement or other instrument or obligation
to which Merger Corp. is a party or by which Merger Corp. or its properties or
assets may be bound, or (c) violate any order, writ, injunction, decree, law,
statute, rule or regulation applicable to Merger Corp. or any of its properties
or assets, except in the case of (b) or (c) above for violations, breaches,
defaults or other occurrences that would not, individually or in the aggregate,
have a Merger Corp. Material Adverse Effect.
SECTION 4.4. Capitalization. All the issued and outstanding shares of
common stock of Merger Corp. have been duly authorized, validly issued and are
fully paid and nonassessable and are owned by the members of the Shareholder
Group free and clear of all Liens.
SECTION 4.5. SEC Filings. None of the information supplied by or on
behalf of Merger Corp. or its Affiliates in writing specifically for inclusion
or incorporation by reference in the Proxy Statement or the Schedule 13E-3 will
(in the case of the Schedule 13E-3) at the time of its filing with the SEC or
(in the case of the Proxy Statement) at the time filed with the SEC, at the time
mailed to the Company's shareholders or at the time of the Shareholders Meeting,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
SECTION 4.6. Ownership of Shares. On the Closing Date, Merger Corp. will
beneficially and of record own at least the number of shares of Common Stock set
forth on Exhibit A attached hereto, free and clear of any Liens or any other
limitation or restriction (including any restriction on the right to vote or
sell the same, except as may be provided as a matter of law or as described on
Exhibit A).
SECTION 4.7. Financing. The Special Committee has previously been
provided with fully-executed commitment letters and related documentation (the
"Financing Commitment Letters") from lenders (the
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"Lenders") relating to such debt financing as is necessary to (x) pay the cash
amounts payable to the holders of shares of Common Stock pursuant to Section
2.8(d) (including Restricted Shares other than the Retained Restricted Shares
pursuant to Section 2.9(b)(ii)) and to the holders of Stock Options pursuant to
Section 2.9(c), (y) effect all refinancings of outstanding indebtedness of the
Company and its Subsidiaries required as a result of the Merger or as required
by the Financing Commitment Letters and (z) pay the anticipated fees and
expenses related to the Merger (the "Debt Financing"). On the date hereof, the
Financing Commitment Letters are in full force and effect and have not been
amended or modified in any respect and the Lenders have not advised Merger Corp.
or any of its Affiliates of any facts which cause them to believe the financings
contemplated by the Financing Commitment Letters will not be consummated
substantially in accordance with the terms thereof.
SECTION 4.8. Brokers. Except for Banc of America Securities, LLC, whose
fees and expenses are the sole obligation of Merger Corp., no broker, finder,
investment banker or other intermediary is or might be entitled to any
brokerage, finder's or other fee or commission payable by the Company in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of Merger Corp. or its Affiliates.
SECTION 4.9. Disclosure. To the knowledge of Merger Corp. and its
Affiliates, neither any Company SEC Document nor any representation or warranty
of the Company contained in this Agreement nor any other information furnished
by or on behalf of the Shareholder Group to the Special Committee or its
advisors contains any untrue statement of material fact or omits to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
ARTICLE V
COVENANTS
SECTION 5.1. Shareholders Meeting. The Company, acting through the
Company Board in accordance with its articles of incorporation and bylaws,
shall, as promptly as practicable following the date of this Agreement and in
consultation with Merger Corp., take all action reasonably necessary, except as
otherwise provided for herein, to seek approval of this Agreement and the Merger
at a duly called and noticed meeting of the Company's shareholders (the
"Shareholders Meeting").
SECTION 5.2. SEC Filings. Promptly following the date of this Agreement,
the Company and Merger Corp. shall, except as otherwise provided for herein, (i)
cooperate in preparing and filing with the SEC the Schedule 13E-3 and (ii)
cooperate in preparing a proxy statement that meets the requirements of the
Exchange Act (together with any amendments thereof or supplements thereto, the
"Proxy Statement") to seek the approval of this Agreement and the Merger by the
Company's shareholders at the Shareholders Meeting and to cause the Proxy
Statement to be filed with the SEC and mailed to the Company's shareholders as
promptly as reasonably practicable. All filings with the SEC, including the
Proxy Statement and the Schedule 13E-3, and all mailings to the Company's
shareholders in connection with the Merger, including the Proxy Statement, shall
be subject to the prior review and comment by Merger Corp., and shall be
reasonably acceptable to Merger Corp. Merger Corp. will furnish (or cause to be
furnished) to the Company the information relating to it and its Affiliates
required by the Exchange Act to be set forth in the Proxy Statement or the
Schedule 13E-3. The Company and Merger Corp. each shall correct any information
provided by it for use in the Proxy Statement and the Schedule 13E-3 that shall
have become false or misleading. The Company and Merger Corp. will promptly
notify the other party of the receipt of any comments from the SEC and any
request by the SEC for any amendment to the Proxy Statement or the Schedule
13E-3 or for additional information. The Company and Merger Corp. shall use
their commercially reasonable efforts, after consultation with the other party
hereto, to respond promptly to any comments made by the SEC with respect to the
Proxy Statement or the Schedule 13E-3 and any preliminary version thereof filed
by it. Subject to Section 5.10, the Company shall include in the Proxy Statement
the recommendation of the Special Committee and the recommendation of
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the Company Board that the Company's shareholders vote in favor of the approval
of this Agreement and the Merger (as the same may be amended, modified or
withdrawn in accordance with Section 5.10).
SECTION 5.3. Conduct of Business of the Company. The Company hereby
covenants and agrees that, prior to the Effective Time, unless Merger Corp.
shall otherwise consent in writing (which consent shall not be unreasonably
withheld or delayed) or except as otherwise expressly contemplated by this
Agreement, the Company Board shall not authorize or direct the officers of the
Company or any of its Subsidiaries to take any action or fail to take any action
that would cause the Company or such Subsidiary to fail to, (i) operate its
business in the usual and ordinary course consistent with past practice, (ii)
use its commercially reasonable efforts to preserve substantially intact its
business organization, maintain its rights and franchises, retain the services
of its respective principal officers and key employees and maintain its
relationships with its respective principal suppliers and other persons with
which it or any of its Subsidiaries has significant business relations, (iii)
use its commercially reasonable efforts to maintain and keep its properties and
assets in as good repair and condition as at present, ordinary wear and tear
excepted, and (iv) exercise within the time prescribed in each Real Property
Lease any option provided therein to extend or renew the term thereof to the
extent such Real Property Lease is still necessary and advisable for the conduct
of the business of the Company and its Subsidiaries, unless, since such time, an
alternate lease has been entered into with terms, in the aggregate, generally
not less favorable to the Company or its Subsidiaries. Without limiting the
generality of the foregoing, and except as otherwise expressly contemplated by
this Agreement or consented to in writing by Merger Corp. (which consent shall
not be unreasonably withheld or delayed), the Company Board shall not authorize
or direct the officers of the Company or any of its Subsidiaries to do any of
the following:
(a) amend or propose to amend its articles of incorporation or bylaws
(or other governing documents) or the Company Rights Agreement;
(b) authorize for issuance, issue, sell, deliver, or agree or commit
to issue, sell or deliver, dispose of, encumber or pledge (whether through
the issuance or granting of options, warrants, commitments, subscriptions,
rights to purchase or otherwise) any stock of any class or any securities,
except as required by agreements with the Company's employees under any of
the Company Stock Plans as in effect as of the date hereof, or amend any of
the terms of any such securities or agreements outstanding as of the date
hereof;
(c) split, combine or reclassify any shares of its capital stock,
declare, set aside or pay any dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect of its
capital stock, or redeem or otherwise acquire any of its securities or any
securities of its Subsidiaries;
(d) other than in the ordinary course of business consistent with past
practice, (i) incur or assume any long-term or short-term indebtedness or
issue any debt securities; (ii) assume, guarantee, endorse or otherwise
become liable or responsible (whether directly, contingently or otherwise)
for the obligations of any other Person; (iii) make any loans, advances or
capital contributions to, or investments in, any other Person (other than
to wholly owned Subsidiaries of the Company) or make any change in its
existing borrowing or lending arrangements for or on behalf of any such
Person, whether pursuant to an employee benefit plan or otherwise; (iv)
pledge or otherwise encumber shares of capital stock of any of its
Subsidiaries; or (v) mortgage, pledge or otherwise encumber any of its
material assets, tangible or intangible, or create or suffer to exist any
material Lien thereupon other than Permitted Liens in the ordinary course
of business, consistent with past practice;
(e) adopt a plan of complete or partial liquidation or adopt
resolutions providing for the complete or partial liquidation, dissolution,
restructuring or recapitalization of the Company or any of its
Subsidiaries;
(f) (i) except as may be required by law or existing agreements, plans
or arrangements as in effect as of the date hereof, or in the ordinary
course of business consistent with past practice, pay, agree to pay, grant,
issue or accelerate payments or benefits pursuant to any Benefit Plan in
excess of
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the payments or benefits provided under such Benefit Plan as of the date
hereof, (ii) except (A) for increases in the ordinary course of business
consistent with past practice for employees other than officers and
directors of the Company that, in the aggregate, do not result in a
material increase in benefits or compensation expense to the Company, or
(B) as required under existing agreements or in the ordinary course of
business consistent with past practice, increase in any manner the salary
or fees or benefits of any director, officer, consultant or employee, or
(iii) except as may be required by law, amend (other than amendments made
in the ordinary course of business consistent with past practice) or
terminate any Benefit Plan or establish, adopt or enter into any plan,
agreement, program, policy, trust, fund or other arrangement that would be
a Benefit Plan if it were in existence as of the date of this Agreement;
(g) acquire, sell, transfer, lease, encumber or dispose of any assets
outside the ordinary course of business or any assets (other than inventory
in the ordinary course consistent with past practice) that, in the
aggregate, are material to the Company and its Subsidiaries taken as a
whole, or enter into any commitment or transaction outside the ordinary
course of business consistent with past practice that would be material to
the Company and its Subsidiaries taken as a whole;
(h) except as may be required as a result of a change in law or in
GAAP, change any of the financial accounting principles or practices used
by it or revalue in any material respect any of its assets, including
writing down the value of inventory or writing off notes or accounts
receivable other than in the ordinary course of business;
(i) (i) acquire (by merger, consolidation, or acquisition of stock or
assets) any corporation, partnership or other business organization or
division thereof or any equity interest therein; or (ii) enter into any
contract or agreement other than in the ordinary course of business
consistent with past practice that would be material to the Company and its
Subsidiaries taken as a whole;
(j) make any material Tax election, change any material method of Tax
accounting or settle or compromise any material Tax liability of the
Company or any of its Subsidiaries, and, in any event, the Company shall
consult with Merger Corp. before filing or causing to be filed any material
Tax Return of the Company or any of its Subsidiaries, except to the extent
such Tax Return is filed in the ordinary course of business consistent with
past practice, and before executing or causing to be executed any agreement
or waiver extending the period for assessment or collection of any material
Taxes of the Company or any of its Subsidiaries;
(k) pay, discharge or satisfy any material claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment, discharge or satisfaction in the
ordinary course of business consistent with past practice or to the extent
provided for in reserves specific to such claim, liability or obligation;
(l) (i) permit any insurance policy or policies naming it as a
beneficiary or a loss payable payee, which policy or policies, individually
or in the aggregate, is or are material to the Company and the Subsidiaries
taken as a whole, to be canceled or terminated without notice to Merger
Corp. unless the Company or one of its Subsidiaries shall have obtained a
comparable replacement policy, or (ii) enter into any insurance policy or
policies naming it as a beneficiary or a loss payable payee, which policy
or policies, individually or in the aggregate, is or are material to the
Company and the Subsidiaries taken as a whole;
(m) except in the ordinary course of business consistent with past
practice, (i) terminate, amend or modify (in any material respect), or
waive any material provision of, any Material Contract, or (ii) amend,
modify or change (in any material respect) any material policies or
procedures governing product sales or returns or the treatment of accounts
receivable;
(n) settle or compromise any pending or threatened material suit,
action or claim;
(o) enter into any agreement containing any provision or covenant
limiting in any material respect the ability of the Company or any of its
Subsidiaries to (i) sell any products or services of or
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to any other Person, (ii) engage in any line of business, or (iii) compete
with or obtain products or services from any Person or limiting the ability
of any Person to provide products or services to the Company or any of its
Subsidiaries, in each case, in any geographic area or during any period of
time; or
(p) take, or agree in writing or otherwise to take, any of the actions
prohibited in Sections 5.3(a) through (o).
SECTION 5.4. Notification of Certain Matters. The Company and Merger
Corp. each shall give prompt notice to the other of (a) the occurrence or
nonoccurrence of any event the occurrence or nonoccurrence of which would be
likely to cause (i) any representation or warranty contained in this Agreement
to be untrue or inaccurate, or (ii) any covenant, condition or agreement
contained in this Agreement not to be complied with or satisfied, and (b) any
failure of a party to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by it hereunder; provided, however,
that the delivery of any notice pursuant to this Section 5.4 shall not affect
the representations, warranties, covenants or agreements of the parties hereto
or limit or otherwise affect the remedies available to the Company or Merger
Corp. hereunder.
SECTION 5.5. Access to Information.
(a) Between the date hereof and the Effective Time, the Company will, upon
reasonable request, give Merger Corp. and its authorized Representatives and
Persons providing or committed or proposing to provide the Company with
financing and their Representatives, reasonable access during normal business
hours to employees, plants, offices, warehouses and other facilities and
properties and to all books and records (including Tax Returns and work papers
of the Company's independent auditors, when available) of the Company and its
Subsidiaries, will permit Merger Corp. and its authorized Representatives to
make such inspections as they may reasonably request and will instruct the
officers and employees of the Company and those of its Subsidiaries to furnish
to Merger Corp. and its authorized Representatives such financial and operating
data and other information with respect to the business and properties of the
Company and any of its Subsidiaries as Merger Corp. may from time to time
reasonably request; provided that the Company shall not be required to provide
any such information if the Person receiving such information is not subject to
a confidentiality agreement in customary form for the benefit of the Company.
(b) Prior to the Effective Time, the Company shall use commercially
reasonable efforts to, and shall cause members of senior management and other
employees and Representatives to, provide reasonable cooperation to Merger Corp.
in its efforts to obtain the Debt Financing, including by providing information
about the Company and its Subsidiaries and their respective businesses, assets
and properties which is reasonably requested by Merger Corp. and its
Representatives for inclusion or incorporation by reference in any syndication
and other materials to be delivered to potential financing sources in connection
with the transactions contemplated by this Agreement (the "Financing
Documents"). Notwithstanding anything in this Agreement to the contrary, to the
extent reasonably appropriate to assist the success of the Debt Financing,
Merger Corp. may disclose, or cause its Representatives to disclose, and at the
request of Merger Corp., the Company shall disclose, information concerning the
Company and its Subsidiaries and their respective businesses, assets and
properties to prospective financing sources in connection with the Merger,
subject to the prior execution of a customary confidentiality agreement approved
by the Company (which approval shall not be unreasonably withheld or delayed)
executed by the recipient of any such information.
(c) The parties agree and acknowledge that the disclosure, provision or
furnishing of information, directly or indirectly, by the Company under this
Agreement shall not be deemed a waiver of any privilege under applicable law
that has been or may be asserted, including privileges arising under or relating
to the attorney-client relationship (which shall include the attorney-client and
work product privileges).
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SECTION 5.6. Additional Agreements; Commercially Reasonable Efforts.
(a) Prior to the Effective Time, upon the terms and subject to the
conditions of this Agreement, each of Merger Corp. and the Company shall use its
commercially reasonable efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, all things necessary, proper or advisable under any
applicable laws, rules or regulations to consummate and make effective as
promptly as practicable the Merger and the other transactions contemplated by
this Agreement, including (i) the preparation and filing of all forms,
registrations and notices required to be filed to consummate the Merger and the
other transactions contemplated hereby and the taking of such actions as are
necessary to obtain any requisite approvals, consents, orders, exemptions or
waivers by any third party, including any Governmental Entity or franchisor, and
(ii) the satisfaction of the other party's conditions to the consummation of the
Merger. Without limiting this Section 5.6, Merger Corp. and the Company shall
each use its commercially reasonable efforts to avoid the entry of, or to have
vacated or terminated, any decree, order, or judgment that would restrain,
prevent or delay the Closing, on or before the Outside Date. In addition, no
party hereto shall take any action after the date hereof that would reasonably
be expected to materially delay the obtaining of, or result in not obtaining,
any permission, approval or consent from any Governmental Entity or franchisor
necessary to be obtained prior to the consummation of the Merger. In furtherance
of and not in limitation of the foregoing, the Company shall permit Merger Corp.
to reasonably participate (subject to the Company's right to control) in the
defense and settlement of any claim, suit or cause of action relating to this
Agreement, the Merger or the other transactions contemplated hereby, and the
Company shall not settle or compromise any such claim, suit or cause of action
without Merger Corp.'s prior written consent (which consent shall not be
unreasonably withheld or delayed).
(b) Prior to the Effective Time, the Company or its Subsidiaries, on the
one hand, and Merger Corp. or its Affiliates, on the other hand, shall permit
the other parties hereto to review and discuss in advance, and consider in good
faith the views of the other parties in connection with, any proposed written
(or any material proposed oral) communication with any Governmental Entity or
franchisor regarding any of the transactions contemplated by this Agreement. The
Company or its Subsidiaries, on the one hand, and Merger Corp. or its
Affiliates, on the other hand, shall promptly inform the other parties hereto
of, and if in writing, furnish the other parties with copies of (or, in the case
of material oral communication, advise the other parties orally of) any
communication from any Governmental Entity or franchisor regarding any of the
transactions contemplated by this Agreement. If the Company or its Subsidiaries,
on the one hand, or Merger Corp. or its Affiliates, on the other hand, receives
a request for additional information or documentary material from any such
Governmental Entity or franchisor with respect to the Merger, then such party
will endeavor in good faith to make, or cause to be made, as soon as reasonably
practicable and after consultation with the other parties hereto, an appropriate
response in compliance with such request. None of the Company or its
Subsidiaries, on the one hand, or Merger Corp. or its Affiliates, on the other
hand, shall participate in any meeting with any Governmental Entity or
franchisor with respect to the Merger unless it consults with the other parties
hereto in advance and, to the extent permitted by such Governmental Entity,
gives the other parties the opportunity to attend and participate thereat. To
the extent not otherwise provided in this Section 5.6(b), the Company or its
Subsidiaries, on the one hand, and Merger Corp. or its Affiliates, on the other
hand, shall furnish the other parties hereto with copies of all correspondence,
and communications between it and any such Governmental Entity or franchisor
with respect to the Merger, provided that either the Company or Merger Corp. or
an Affiliate of Merger Corp. may redact any information from such correspondence
and communications that discusses or reflects its valuation of the Merger. The
Company or its Subsidiaries, on the one hand, and Merger Corp. or its
Affiliates, on the other hand, shall furnish the other parties hereto with such
necessary information and reasonable assistance as such other parties may
reasonably request in connection with their preparation of necessary
communications or submissions of information to any Governmental Entity or
franchisor.
(c) Merger Corp. shall use its commercially reasonable efforts to obtain
the financing contemplated by Section 4.7. Notwithstanding any other provision
of this Agreement to the contrary, Merger Corp. may amend or revise the
Financing Commitment Letters referred to in Section 4.7, or enter into new,
replacement or additional financing arrangements, through itself or any of its
Affiliates, in connection with
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the financing referred to in Section 4.7 or otherwise to facilitate the
transactions contemplated by this Agreement, provided that (i) any such action
would not, individually or in the aggregate, have a Merger Corp. Material
Adverse Effect or materially delay the Closing, and (ii) any such amendment or
revision or new, replacement or additional financing arrangements are upon terms
and conditions that are substantially equivalent to those set forth in the
Financing Commitment Letters, and to the extent any of the terms or conditions
are not substantially equivalent to those set forth in the Financing Commitment
Letters, on terms and conditions reasonably satisfactory to the Special
Committee.
(d) Between the date hereof and the Closing, (i) to the extent that
transfers of Company Permits are required as a result of the execution of this
Agreement or the consummation of the Merger, the Company and Merger Corp. shall
use all commercially reasonable efforts to effect such transfers, and (ii) the
Company shall use its commercially reasonable efforts to identify and secure or
provide any other consents or notices required as a result of the execution,
delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby.
SECTION 5.7. Public Announcements. Merger Corp. and the Company, as the
case may be, will consult with each other before issuing any press release or
otherwise making any public statements with respect to this Agreement, the
Merger or the other transactions contemplated hereby, and shall not issue any
such press release or make any such public statement without the prior consent
of the other parties hereto (which consent shall not be unreasonably withheld or
delayed), except as may be required by applicable law or by obligations pursuant
to any listing agreement with any national securities exchange or national
market system to which Merger Corp., its Affiliates, the Company or its
Subsidiaries is a party. The parties hereto have agreed on the text of the joint
press release by which announcement of the execution of this Agreement will be
made.
SECTION 5.8. Indemnification.
(a) Merger Corp. agrees that all rights to indemnification or exculpation
now existing in favor of the directors, officers, employees and agents of the
Company and its Subsidiaries as provided in their respective articles of
incorporation or bylaws (or other governing documents) or otherwise in effect as
of the date hereof with respect to matters occurring prior to the Effective Time
shall survive the Merger and shall continue in full force and effect after the
Effective Time. Any rights to indemnification or exculpation pursuant to this
Section 5.8(a) shall not be amended, repealed or otherwise modified for a period
of six (6) years from the Effective Time in a manner that would adversely affect
the rights thereunder of individuals who at the Effective Time were directors,
officers, employees or agents of the Company.
(b) From and after the Effective Time, the Surviving Corporation shall, to
the fullest extent permitted under the IBCL, indemnify and hold harmless each
present and former director and officer of the Company and its Subsidiaries and
each such individual who served at the request of the Company or its
Subsidiaries as a director, officer, trustee, partner, fiduciary, employee or
agent of another corporation, partnership, joint venture, trust, pension or
other employee benefit plan or enterprise (collectively, the "Indemnified
Parties") against all costs and expenses (including attorneys' fees), judgments,
fines, losses, claims, damages, liabilities and settlement amounts paid in
connection with any claim, action, suit, proceeding or investigation (whether
arising before or after the Effective Time), whether civil, administrative or
investigative, based on the fact that such individual is or was a director or
officer of the Company or any of its Subsidiaries and arising out of or
pertaining to any action or omission occurring at or before the Effective Time
(including the transactions contemplated hereby). The Surviving Corporation
shall be entitled to assume the defense of any such claim, action, suit,
investigation or proceeding with counsel reasonably satisfactory to the
Indemnified Party and the Surviving Corporation shall not be liable to any
Indemnified Party for any legal expenses of separate counsel or any other
expenses subsequently incurred by such Indemnified Party in connection with the
defense thereof, except that if the Surviving Corporation elects not to assume
such defense or counsel or the Indemnified Party advises that there are issues
that raise conflicts of interest between the Surviving Corporation and the
Indemnified Party or such Indemnified Party shall have legal defenses available
to it that are different from or in addition to those available to the Surviving
Corporation, the Indemnified Party may retain counsel reasonably satisfactory to
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the Surviving Corporation, and the Surviving Corporation shall pay all
reasonable fees and expenses of such counsel for the Indemnified Party promptly
as statements therefor are received; provided that the Surviving Corporation
shall not be liable for the fees of more than one counsel with respect to a
particular claim, action, suit, investigation or proceeding for all Indemnified
Parties, other than local counsel, unless a conflict of interest shall be caused
thereby; and provided further that the Surviving Corporation shall not be liable
for any settlement effected without its written consent (which consent shall not
be unreasonably withheld or delayed).
(c) The Surviving Corporation shall provide or maintain in effect for six
(6) years from the Effective Time (the "Tail Period") directors' and officers'
and corporate liability insurance covering those individuals who are covered by
the directors' and officers' and corporate liability insurance policy provided
for directors and officers of the Company and its Subsidiaries as of the date
hereof (the "Existing Policy") on terms comparable to the Existing Policy;
provided, however, that in no event shall the Surviving Corporation be required
to expend in any one year an amount in excess of 300% of the annual premium
currently paid by the Company for such insurance, and if the premiums of such
insurance coverage exceed such amount, the Surviving Corporation shall be
obligated to maintain or obtain a policy with the greatest coverage available
for a cost not exceeding such amount.
(d) If the Surviving Corporation or any of its successors or assigns (i)
consolidates with or merges into any other Person and shall not be the
continuing or surviving corporation or entity of such consolidation or merger,
or (ii) transfers or conveys all or substantially all of its properties and
assets to any Person, then, in each such case, to the extent necessary, proper
provision shall be made so that the successors and assigns of the Surviving
Corporation, as the case may be, shall assume the obligations of the Surviving
Corporation set forth in this Section 5.8.
(e) The rights of each Indemnified Party under this Section 5.8 shall be in
addition to any rights such individual may have under the articles of
incorporation or bylaws (or other governing documents) of the Company or any of
its Subsidiaries, under the IBCL or any other applicable laws or under any
agreement of any Indemnified Party with the Company or any of its Subsidiaries.
These rights shall survive consummation of the Merger and are intended to
benefit, and shall be enforceable by, each Indemnified Party.
SECTION 5.9. Contributions to Merger Corp. Merger Corp. shall cause,
prior to the Effective Time, the members of the Shareholder Group to sell and/or
contribute the number of shares of Common Stock set forth next to such
shareholder's name on Exhibit A attached hereto to Merger Corp. in exchange for
a proportionate number of shares of common stock of Merger Corp. (which shares
of common stock shall be issued by Merger Corp. prior to the Effective Time),
all in accordance with the Shareholders Agreement. The shares of Common Stock
contributed to Merger Corp. shall be canceled and retired in the Merger in
accordance with Section 2.8(b).
SECTION 5.10. Withdrawal of Recommendation; Company Competing
Transactions.
(a) Except as permitted by Section 5.10(b), neither the Special Committee
nor the Company Board shall (i) withdraw or modify, or propose to withdraw or
modify, in a manner adverse to Merger Corp., its recommendation in favor of this
Agreement and the Merger, or (ii) approve or recommend, or propose publicly to
approve or recommend, any Company Competing Transaction. Nothing contained in
this Agreement shall prevent the Special Committee or the Company Board from
complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act.
(b) In the event that, prior to the Shareholders Meeting, the Special
Committee determines, in its good faith judgment, after receiving the advice of
its outside legal counsel, that failing to do so would create a reasonable
likelihood of breaching its fiduciary duties under applicable law, the Special
Committee (and the Company Board acting on the recommendation of the Special
Committee) may (subject to this Section 5.10(b) and to Section 5.10(c)) withdraw
or modify its approval, adoption or recommendation in favor, of this Agreement
and the Merger and, if applicable, recommend to Company shareholders a Company
Competing Transaction; provided that the Special Committee gives Merger Corp.
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at least twenty four (24) hours' prior written notice of its intention to do so.
Any such withdrawal or modification of the recommendation shall not change the
approval of the Special Committee and the Company Board for purposes of (i) the
amendment to the Company Rights Agreement described in Section 3.7 or (ii)
causing any state takeover statute or other state law to be inapplicable to the
transactions contemplated hereby, or, unless this Agreement is terminated
pursuant to Section 5.10(d), release the Company from its obligation under
Section 5.1 to present this Agreement and the Merger for the consideration of
Company shareholders at the Shareholders Meeting.
(c) From and after the execution of this Agreement, the Company shall
promptly advise Merger Corp., orally and in writing, of any request for
information or of any proposal in connection with a Company Competing
Transaction, the material terms and conditions of such request or proposal and
the identity of the Person making such request or proposal. The Company shall
keep Merger Corp. reasonably apprised of the status (including amendments and
proposed amendments) of any proposal relating to a Company Competing Transaction
on a current basis, including promptly providing to Merger Corp. copies of any
written communications between the Company and any Person relating to a Company
Competing Transaction.
(d) If, prior to the Shareholders Meeting, (A) the Special Committee
determines in good faith, after consultation with its outside financial and
legal advisors, that any bona fide written proposal from a third party for a
Company Competing Transaction received after the date hereof is more favorable
to the shareholders of the Company (taking into account (x) all the terms and
conditions of the Company Competing Transaction and this Agreement that the
Special Committee in good xxxxx xxxxx relevant, including any conditions to and
expected timing and risks of consummation, and the ability of the party making
such proposal to obtain financing for such Company Competing Transaction, and
(y) all other legal, financial, regulatory and other aspects of such proposal)
than the transactions contemplated by this Agreement (taking into account any
amendment to the terms and conditions of this Agreement proposed in writing by
Merger Corp. in response to such Company Competing Transaction) (a "Superior
Transaction"), and (B) the Special Committee determines in good faith, after
receiving advice of its outside legal counsel, that failing to terminate this
Agreement and enter into such Superior Transaction would create a reasonable
likelihood of breaching its and the Company Board's fiduciary duties under
applicable law, the Special Committee and the Company Board may cause the
Company to terminate this Agreement and enter into a binding acquisition
agreement (an "Acquisition Agreement") with respect to such Superior
Transaction; provided that, prior to any such termination, (i) the Company has
provided Merger Corp. written notice that it has made the determination referred
to in clause (B) above, identifying the Superior Transaction then determined to
be more favorable and the parties thereto and delivering to Merger Corp. a copy
of the Acquisition Agreement for such Superior Transaction in the form to be
entered into, (ii) the Company has provided Merger Corp. with the opportunity,
for a period of twenty four (24) hours, to propose to the Special Committee in
writing amendments to the terms and conditions of this Agreement in response to
such Company Competing Transaction, (iii) after taking into account any such
amendments proposed by Merger Corp., the Special Committee determines in good
faith, after consultation with its outside financial and legal advisors, that
its determinations under clauses (A) and (B) above with respect to such Company
Competing Transaction continue, (iv) the Company delivers to Merger Corp. a
written notice of termination of this Agreement pursuant to this Section 5.10(d)
and (v) the Company and the other party to the Superior Transaction deliver to
Merger Corp. a written acknowledgement that the Company and such other party
have irrevocably waived any right to contest payment of the Merger Corp.
Expenses as provided in Section 7.3.
SECTION 5.11. Resignation of Directors. Immediately prior to the
Effective Time, the Company shall deliver to Merger Corp. evidence satisfactory
to Merger Corp. of the resignation of all directors of the Company (other than
those directors who are members of the Shareholder Group), such resignations to
become effective as of the Effective Time.
SECTION 5.12. Exemption from Liability Under Section 16(b). Merger Corp.
and the Company shall take all such steps as may be required or reasonably
requested to cause the transactions contemplated by this Agreement and any other
dispositions of Company equity securities (including derivative
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securities) in connection with this Agreement by each individual who is a
director, officer or ten percent (10%) shareholder of the Company to be exempt
from liability under Section 16(b) of the Exchange Act pursuant to Rule 16b-3
thereunder.
SECTION 5.13. Voting by Shareholder Group. Merger Corp. and the members
of the Shareholder Group will, and will cause their respective Affiliates to,
vote all shares of Common Stock beneficially owned by them at the Shareholders
Meeting, for and against approval of this Agreement and the Merger, in the same
proportion as the votes cast by all other shareholders voting at the
Shareholders Meeting for and against approval of this Agreement and the Merger
(with abstentions being deemed to be votes against approval of this Agreement
and the Merger for this purpose).
ARTICLE VI
CONDITIONS TO CONSUMMATION OF THE MERGER
SECTION 6.1. Conditions to the Merger.
(a) The obligation of the Company to consummate the Merger and the other
transactions contemplated hereby is subject to the satisfaction or waiver (to
the extent permitted by applicable law) at or prior to the Effective Time of
each of the following conditions:
(i) Accuracy of Representations and Warranties. The representations
and warranties made by Merger Corp. herein, disregarding all qualifications
and exceptions contained herein relating to materiality or Merger Corp.
Material Adverse Effect or words of similar import, shall be true and
correct on the Closing Date as if made on and as of such dates (except for
representations and warranties that are made as of a specified date, which
shall be true and correct only as of such specified date) with only such
exceptions as would not, individually or in the aggregate, have a Merger
Corp. Material Adverse Effect.
(ii) Compliance with Covenants. Merger Corp. and its Affiliates shall
have performed in all material respects (or with respect to any obligation
or agreement qualified by materiality or Merger Corp. Material Adverse
Effect, in all respects) all obligations and agreements, and complied in
all material respects (or with respect to any covenant qualified by
materiality or Merger Corp. Material Adverse Effect, in all respects) with
all covenants, contained in this Agreement to be performed or complied with
by it prior to or on the Closing Date.
(iii) Officer's Certificate. The Company shall have received a
certificate of Merger Corp., dated as of the Closing Date, signed by an
executive officer of Merger Corp. to evidence satisfaction of the
conditions set forth in Sections 6.1(a)(i) and (ii).
(iv) Financing. The Debt Financing shall have been obtained and, to
the extent required, the existing indebtedness of the Company shall be
concurrently refinanced.
(b) The obligation of Merger Corp. to consummate the Merger and the other
transactions contemplated hereby is subject to the satisfaction or waiver (to
the extent permitted by applicable law) at or prior to the Effective Time of
each of the following conditions:
(i) Accuracy of Representations and Warranties. The representations
and warranties made by the Company herein, disregarding all qualifications
and exceptions contained herein relating to materiality or Company Material
Adverse Effect or words of similar import, shall be true and correct on the
Closing Date as if made on and as of such dates (except for representations
and warranties that are made as of a specified date, which shall be true
and correct only as of such specified date) with only such exceptions as
would not have, individually or in the aggregate, a Company Material
Adverse Effect.
(ii) Compliance with Covenants. The Company shall have performed in
all material respects (or with respect to any obligation or agreement
qualified by materiality or Company Material Adverse Effect, in all
respects) all obligations and agreements, and complied in all material
respects (or with
A-22
respect to any covenant qualified by materiality or Company Material
Adverse Effect, in all respects) with all covenants, contained in this
Agreement to be performed or complied with by it prior to or on the Closing
Date.
(iii) Officer's Certificate. Merger Corp. shall have received a
certificate of the Company, dated as of the Closing Date, signed by an
executive officer of the Company to evidence satisfaction of the conditions
set forth in Sections 6.1(b)(i) and (ii).
(iv) No Litigation. After the date hereof, there shall not be (A) any
new suit, action or proceeding by any Governmental Entity or any other
Person or (B) any development in any existing suit, action or proceeding by
any Governmental Entity or any other Person that in any such case is more
likely than not, individually or in the aggregate, to have a Company
Material Adverse Effect.
(v) Financing. The conditions to the Financing Commitment Letters
substantially on the terms set forth therein (or the alternative commitment
letter referred to in Section 5.6(c)).
SECTION 6.2. Conditions to Each Party's Obligations to Effect the
Merger. The respective obligations of each party hereto to effect the Merger
and the other transactions contemplated hereby are further subject to the
satisfaction at or prior to the Effective Time of each of the following
conditions, any and all of which may be waived in whole or in part by the
parties hereto to the extent permitted by applicable law:
(a) Shareholder Approval. The Company Shareholder Approval shall have
been validly obtained under the IBCL, this Agreement and the Company's
articles of incorporation and bylaws.
(b) Statutes; Court Orders. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated, issued or enforced by any Governmental Entity that prohibits,
restrains, enjoins, precludes or restricts the consummation of the Merger.
(c) Governmental and Franchisor Approvals. All clearances or
approvals required from any Governmental Entity or franchisor shall have
been received in connection with the Merger, other than those clearances or
approvals the failure of which to obtain would not have, individually or in
the aggregate, a Company Material Adverse Effect, on terms that could not
reasonably be expected to have a Company Material Adverse Effect.
ARTICLE VII
TERMINATION; AMENDMENT; WAIVER
SECTION 7.1. Termination. This Agreement may be terminated and the Merger
may be abandoned at any time prior to the Effective Time notwithstanding receipt
of the Company Shareholder Approval:
(a) by mutual written consent duly authorized by the Company Board
(provided such termination has been approved by the Special Committee) and
the board of directors of Merger Corp.;
(b) by Merger Corp. or the Company, if (i) any Governmental Entity
shall have enacted, entered, promulgated, issued or enforced a final
statute, rule, regulation, executive order, decree, ruling or injunction
(which statute, rule, regulation, executive order, decree, ruling or
injunction the parties hereto shall use their commercially reasonable
efforts to reverse, overturn or lift) or taken any other final action
restraining, enjoining or otherwise prohibiting the Merger and such order,
decree, ruling or other action is or shall have become final and
nonappealable, or (ii) the Effective Time shall not have occurred on or
before the Outside Date; provided, however, that the right to terminate
this Agreement under this clause (ii) shall not be available to any party
hereto whose failure to fulfill any obligation under this Agreement has
been the cause of, or resulted in, the failure of the Effective Time to
occur on or before the Outside Date;
A-23
(c) by Merger Corp., if (i) there shall have been a material breach of
any of the Company's representations, warranties or covenants, which breach
(A) would give rise to the failure of a condition set forth in Section
6.1(b) or Section 6.2 and (B) is not capable of being cured prior to the
Outside Date or, if curable, has not been cured within twenty (20) business
days following receipt by the Company of written notice from Merger Corp.
of such breach; (ii) the Special Committee or the Company Board shall
withdraw, modify or change (including by amendment of the Proxy Statement)
its recommendation with respect to this Agreement and the Merger in a
manner adverse to Merger Corp., or shall have resolved to do any of the
foregoing; or (iii) the Special Committee or the Company Board shall have
recommended any proposal in respect of a Company Competing Transaction;
(d) by the Company, if there shall have been a material breach of any
of Merger Corp.'s representations, warranties or covenants, which breach
(i) would give rise to the failure of a condition set forth in Section
6.1(a) or Section 6.2 and (ii) is not capable of being cured prior to the
Outside Date or, if curable, has not been cured within twenty (20) business
days following receipt by Merger Corp. of written notice from the Company
of such breach;
(e) by the Company, pursuant to and in compliance with Section
5.10(d); or
(f) by either Merger Corp. or the Company, if at the Shareholders
Meeting (including any postponement or adjournment thereof), the Company
Shareholder Approval shall have not been obtained other than (in the case
of Merger Corp.) by reason of a failure of Merger Corp. or the members of
the Shareholder Group or their Affiliates to vote their shares of Common
Stock in the manner provided in Section 5.13.
SECTION 7.2. Effect of Termination. In the event of the termination and
abandonment of this Agreement pursuant to Section 7.1, written notice thereof
shall forthwith be given to the other party or parties in accordance with
Section 8.4, specifying the provision hereof pursuant to which such termination
is made, and this Agreement shall forthwith become void and have no effect,
without any liability on the part of any of the Company or its Subsidiaries or
its Affiliates or Merger Corp. or its Affiliates or their respective directors,
officers, employees or shareholders, other than as provided in this Section 7.2
and Section 7.3; provided, however, that nothing contained in this Section 7.2
shall relieve any party from liability for any willful and material breach of
this Agreement.
SECTION 7.3. Expense Reimbursement.
(a) Upon the termination of this Agreement (i) by Merger Corp. or the
Company pursuant to Section 7.1(b)(ii) where the failure of the Company to
fulfill any obligation under this Agreement has been the cause of, or resulted
in, the failure of the Effective Time to occur on or before the Outside Date;
(ii) by Merger Corp. pursuant to Section 7.1(c)(ii) or Section 7.1(c)(iii);
(iii) by the Company pursuant to Section 7.1(e); or (iv) by Merger Corp. or the
Company pursuant to Section 7.1(f), the Company shall pay to Merger Corp., by
wire transfer of immediately available funds, the Merger Corp. Expenses not
later than two (2) business days after submission of statements therefor, less
any such expenses previously reimbursed by the Company.
(b) Except as specifically provided in this Section 7.3, all costs and
expenses incurred in connection with this Agreement, the Merger and the other
transactions contemplated by this Agreement shall be paid by the party incurring
such expenses, regardless of whether the Merger or any other transaction
contemplated by this Agreement is consummated.
SECTION 7.4. Amendment. This Agreement may be amended, supplemented or
modified by action taken by or on behalf of the respective boards of directors
of the parties hereto (but in the case of the Company Board, only if such
amendment, supplement or modification has been approved by the Special
Committee) at any time prior to the Effective Time, whether prior to or after
the Company Shareholder Approval shall have been obtained, but after such
approval only to the extent permitted by applicable law. No such amendment,
supplement or modification shall be effective unless set forth in a written
instrument duly executed by or on behalf of each party hereto.
A-24
SECTION 7.5. Waiver. At any time prior to the Effective Time any party
hereto, by action taken by or on behalf of its board of directors (but in the
case of the Company Board, only if such extension or waiver has been approved by
the Special Committee), may to the extent permitted by applicable law (a) extend
the time for the performance of any of the obligations or other acts of the
other parties hereto, (b) waive any inaccuracies in the representations and
warranties or compliance with the covenants or agreements of the other parties
hereto contained herein or in any document delivered pursuant hereto or (c)
waive compliance with any of the conditions of such party contained herein. No
such extension or waiver shall be effective unless set forth in a written
instrument duly executed by or on behalf of the party extending the time of
performance or waiving any such inaccuracy or non-compliance. No waiver by any
party of any term or condition of this 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 Agreement on any future occasion.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Nonsurvival of Representations and Warranties. The
representations and warranties made herein shall not survive beyond the
Effective Time.
SECTION 8.2. Entire Agreement; Assignment. This Agreement (including the
Schedules and Exhibits hereto) constitute the entire agreement between the
parties hereto with respect to the subject matter hereof and supersede all other
prior agreements and understandings, both written and oral, between the parties
hereto with respect to the subject matter hereof. This Agreement shall not be
assigned by operation of law or otherwise, except that Merger Corp. may assign
any or all of its rights and obligations under this Agreement to an Affiliate of
Merger Corp., but no such assignment shall relieve Merger Corp. of its
obligations hereunder if such assignee does not perform such obligations.
SECTION 8.3. Severability. If any provision of this Agreement, or the
application thereof to any Person or circumstance, is held invalid or
unenforceable, the remainder of this Agreement, and the application of such
provision to other Persons or circumstances, shall not be affected thereby, and
to such end, the provisions of this Agreement shall be severable. Upon such
determination that any provision is invalid or unenforceable, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties hereto as closely as possible in a manner
acceptable to all parties hereto.
SECTION 8.4. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing (including by facsimile with
written confirmation thereof) and unless otherwise expressly provided herein,
shall be delivered during normal business hours by hand, by Federal Express or
other nationally recognized overnight commercial delivery service, or by
facsimile notice, confirmation of receipt received, addressed as follows, or to
such other address as may be hereafter notified by the respective parties
hereto:
(a) If to Merger Corp.:
QDI Merger Corp.
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxxx
Facsimile: 000-000-0000
With copies, which will not constitute notice, to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
A-25
Facsimile: 000-000-0000
(b) If to the Company:
Xxxxx X. Xxxxxxxx, Chairman of the Special
Committee of the Board of Directors of Quality Dining, Inc.
c/o Katz, Sapper & Xxxxxx
000 X. 00xx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
With copies, which will not constitute notice, to:
Xxxxxx Xxxxxxx Attorneys, PC
Xxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Strain, Esq.
Facsimile: 000-000-0000
SECTION 8.5. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Indiana, without regard to
the principles of conflicts of law thereof.
SECTION 8.6. Specific Performance. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled, without posting a bond or similar indemnity, to an injunction or
injunctions to prevent breaches of this Agreement or to enforce specifically the
performance of the terms and provisions hereof in any federal court located in
the State of Indiana or any Indiana state court, in addition to any other remedy
to which they are entitled at law or in equity.
SECTION 8.7. Interpretation. When a reference is made in this Agreement
to Articles, Sections, Exhibits or Schedules, such reference shall be to an
Article or Section of or Exhibit or Schedule to this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 8.8. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and its successors and
permitted assigns, and except as provided in Section 5.8(e) and as otherwise
explicitly provided in this Agreement, nothing in this Agreement, express or
implied, is intended to or shall confer upon any other Person any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
SECTION 8.9. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
A-26
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed on its behalf as of the day and year first above written.
QDI MERGER CORP.
By: /s/ XXXXXX X. XXXXXXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: President
QUALITY DINING, INC.
By: /s/ XXXX X. XXXXX
------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
The undersigned members of the Shareholder Group hereby agree to vote, or
cause to be voted, all their shares of Common Stock at the Shareholders Meeting
in accordance with the provisions of Section 5.13:
/s/ XXXXXX X. XXXXXXXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
/s/ XXXXXX X. XXXXXXXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
/s/ XXXXX X. XXXXXXXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
/s/ XXXX X. XXXXXXXXXXX
--------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
/s/ XXXX X. XXXXX
--------------------------------------
Name: Xxxx X. Xxxxx
A-27
EXHIBIT A
SHARES OF
QUALITY DINING
COMMON
SHAREHOLDER STOCK
----------- --------------
Xxxxxx X. Xxxxxxxxxxx....................................... 3,929,073
Xxxxxx X. Xxxxxxxxxxx....................................... 233,746
Xxxxx X. Xxxxxxxxxxx........................................ 347,445
Xxxx X. Xxxxxxxxxxx......................................... 496,031(a)
Xxxx X. Xxxxx............................................... 174,356(b)
---------
5,180,651
=========
---------------
(a) 56,000 of these shares are held in an individual retirement account and
might either be contributed to Merger Corp. or converted into the Merger
Consideration at the Effective Time of the Merger.
(b) 4,500 of these shares are held in an individual retirement account and
might either be contributed to Merger Corp. or converted into the Merger
Consideration at the Effective Time of the Merger.
A-28
