EXHIBIT 22
STANDSTILL AGREEMENT AND MUTUAL RELEASE
dated as of June 27, 2003
by and among
XXXXXX X. XXXXXXXXXXX,
QUALITY DINING, INC.,
NBO, LLC,
XXXXXX X. XXXXXXXX,
XXXXX X. XXXXXXXX,
XXXXXX X. XXXXXXXX
and
XXXX X. XXXXXXXX
This STANDSTILL AGREEMENT AND MUTUAL RELEASE (this "STANDSTILL
AGREEMENT") dated as of June 27, 2003 is made and entered into by and among
XXXXXX X. XXXXXXXXXXX ("XXXXXXXXXXX"), QUALITY DINING, INC., an Indiana
corporation (the "COMPANY"), NBO, LLC, a Michigan limited liability company
("NBO"), XXXXXX X. XXXXXXXX, XXXXX X. XXXXXXXX, XXXXXX X. XXXXXXXX and XXXX X.
XXXXXXXX (collectively, the "SCHOSTAKS" and together with NBO the
"STOCKHOLDERS").
RECITALS
A. The Schostaks are the sole members of NBO.
B. NBO beneficially owned 1,148,014 shares (the "SHARES") of
common stock, no par value, of the Company (the "COMMON STOCK").
C. Simultaneously herewith, Xxxxxxxxxxx and NBO have closed the
purchase and sale of the Shares pursuant to a Stock Sale Agreement dated as of
the date hereof (the "STOCK SALE AGREEMENT").
D. As a result of the foregoing transactions pursuant to the
Stock Sale Agreement, the Stockholders no longer beneficially own any shares of
the Common Stock.
X. Xxxxxxxxxxx, the Stockholders and the Company desire to
establish in this Standstill Agreement certain restrictions concerning the
future acquisition of securities of the Company by the Stockholders and any
actions by the Stockholders relating to the Company and to exchange mutual
releases.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND
AGREEMENTS SET FORTH IN THIS STANDSTILL AGREEMENT, AND FOR OTHER GOOD AND
VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY
ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE I
DEFINITIONS
1.01 Definitions. (a) Except as otherwise specifically indicated,
the following terms have the following meanings for all purposes of this
Standstill Agreement:
"BENEFICIALLY OWNS" (or comparable variations thereof) has the
meaning set forth in Rule 13d-3 promulgated under the Exchange Act.
"BOARD OF DIRECTORS" means the Board of Directors of the
Company.
"EFFECTIVE TIME" means the date of this Agreement.
"EQUITY SECURITIES" means Voting Securities, Convertible
Securities and Rights to Purchase Voting Securities.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"GOVERNMENTAL OR REGULATORY AUTHORITY" means any court,
tribunal, arbitrator, authority, agency, commission, official or other
instrumentality of the United States, any foreign country or any domestic or
foreign state, county, city or other political subdivision.
"PERSON" means any individual, corporation, partnership,
trust, limited liability company, other entity or group (within the meaning of
Section 13(d)(3) of the Exchange Act).
"REPRESENTATIVES" of any Person means (where applicable) such
Person's directors, officers, partners, members, employees, legal, investment
banking and financial advisors, accountants and any other agents and
representatives of such Person.
"RESTRICTED GROUP" means (i) the Stockholders, (ii) any and
all Persons directly or indirectly controlled by or under common control with
any Stockholder, (iii) if any Stockholder is an individual, (a) any member of
such Stockholder's family (including any spouse, parent, sibling, child,
grandchild or other lineal descendant, including adoptive children), (b) the
heirs, executors, personal representatives and administrators of any of the
foregoing persons, (c) any trust established for the benefit of any of the
foregoing persons and (d) any charitable foundations established by any of the
foregoing persons, and (iv) any and all groups (within the meaning of Section
13(d)(3) of the Exchange Act) of which any Stockholder or any Person directly or
indirectly controlling, controlled by or under common control with such
Stockholder is a member.
"TERMINATION DATE" means the date which is ten (10) years from
the date hereof.
"VOTING SECURITIES" means the Common Stock and any other
securities of the Company of any kind or class having power generally to vote
for the election of directors; "CONVERTIBLE SECURITIES" means securities of the
Company which are convertible or exchangeable (whether presently convertible or
exchangeable or not) into Voting Securities; and "RIGHTS TO PURCHASE VOTING
SECURITIES" means options and rights issued by the Company (whether presently
exercisable or not) to purchase Voting Securities or Convertible Voting
Securities.
(b) In addition, the following terms are defined in the
Sections set forth below:
"BUSINESS COMBINATION" -- Section 2.02
"COMMON STOCK" -- Recital A
"COMPANY" -- Preamble
"COMPANY AFFILIATES" Section 2.05
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"COMPANY RELEASED PARTIES" Section 2.05
"COMPANY RELEASING PARTIES" Section 2.07
"XXXXXXXXXXX RELEASED PARTIES" -- Section 2.04
"XXXXXXXXXXX RELEASING PARTIES" -- Section 2.06
"SCHOSTAKS" -- Preamble
"STOCK SALE AGREEMENT" -- Recital B
"STOCKHOLDERS" -- Preamble
"STOCKHOLDER RELEASED PARTIES" -- Section 2.06
"STOCKHOLDER RELEASING PARTIES" -- Section 2.04
(c) Unless the context of this Standstill 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 Standstill Agreement; and (iv) the terms "ARTICLE" or "SECTION"
refer to the specified Article or Section of this Standstill Agreement. Whenever
this Standstill Agreement refers to a number of days, such number shall refer to
calendar days unless business days are specified.
ARTICLE II
STANDSTILL AND MUTUAL RELEASES
2.01 Limitation on Acquisition of Equity Securities. The
Stockholders covenant and agree with the Company that, from the Effective Time
until the Termination Date, no member of the Restricted Group shall, directly or
indirectly, purchase or acquire, or make any offer to or agree to purchase or
acquire, beneficial ownership of any Equity Securities in the open market, in
privately negotiated transactions or otherwise.
2.02 Standstill. The Stockholders covenant and agree with the
Company that, from the Effective Time until the Termination Date, no member of
the Restricted Group will, and they will not assist or encourage any other
Person (including by providing financing) to, directly or indirectly, (i)
acquire or agree, offer, seek or propose (whether publicly or otherwise) to
acquire ownership (including but not limited to beneficial ownership) of any
substantial portion of the assets or any Equity Securities of the Company,
whether by means of a negotiated purchase of assets, tender or exchange offer,
merger or other business combination, recapitalization, restructuring or other
extraordinary transaction (a "BUSINESS COMBINATION"), (ii) engage in any
"solicitation" of "proxies" (as such terms are used in the proxy rules
promulgated under the Exchange Act, but disregarding clause (iv) of Rule
14a-1(1)(2) and including any exempt solicitation pursuant to Rule 14a-2(b)(1)
or (2)), or form, join or in any way participate in a "group" (as defined under
the Exchange Act), (iii) otherwise act, alone or in concert with others, to seek
to control or influence the management, Board of Directors or policies of the
Company, (iv) take any action that could reasonably be expected to force the
Company to make a public announcement regarding any of the types of matters
referred to in clause (i), (ii) or (iii) above, or (v) enter into any
discussions, negotiations, agreements, arrangements or understandings with any
third party with respect to any of the foregoing. No
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member of the Restricted Group will request the Company or any of its
Representatives to amend or waive any provision of this paragraph (including
this sentence) or Section 2.01 during such period. If at any time during such
period a member of the Restricted Group is approached by any Person concerning
its participation in any of the types of matters referred to in clause (i), (ii)
or (iii) above, such member will promptly inform the Company of the nature of
such contact and the parties thereto.
2.03 Compensation. As compensation for the covenants of the Schostaks
set forth in this Standstill Agreement, simultaneously with the execution
hereof, Xxxxxxxxxxx has paid to each of the Schostaks the sum of One Hundred
Thousand Dollars ($100,000.00) for an aggregate payment to the Schostaks of Four
Hundred Thousand Dollars ($400,000.00).
2.04 General Release by NBO and the Stockholders of Claims Against
Xxxxxxxxxxx. NBO and the Stockholders, for themselves and all of their heirs,
executors, administrators, legal representatives and assigns (collectively,
"STOCKHOLDER RELEASING PARTIES"), for and in consideration of all of the terms
of this Standstill Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, do hereby
unconditionally and irrevocably REMISE, RELEASE, AND FOREVER DISCHARGE
Xxxxxxxxxxx, his affiliates, and all of their respective past, present, and
future directors, advisory board members, officers, shareholders, other security
holders acting in their capacity as such, and all of their respective
predecessors, successors and assigns, heirs, executors, administrators, and
legal representatives and all other persons and entities who/that might be
claimed to be jointly and/or severally liable with them (hereinafter
collectively referred to as the "XXXXXXXXXXX RELEASED PARTIES") of and from all
claims, causes of action, suits, charges, debts, dues, sums of money, fees and
costs (including, without limitation, attorneys' fees and costs), accounts,
bills, covenants, contracts, agreements, expenses, wages, compensation,
benefits, promises, damages, judgments, rights, demands, or otherwise, known or
unknown, accrued or unaccrued, contingent or non-contingent, in equity or in
law, which any Stockholder Releasing Party ever had, now has, or hereafter may
have, by reason of any matter, cause or thing pertaining to the acquisition or
ownership of the Common Stock, the acquisition or attempted acquisition of other
securities of the Company, or the management and operation of the Company,
except for any obligations or liabilities of the Xxxxxxxxxxx Released Parties
under this Standstill Agreement or under the Stock Sale Agreement which shall
not be affected by this release.
2.05 General Release by NBO and the Stockholders of Claims Against
Company. The Stockholder Releasing Parties, for and in consideration of all of
the terms of this Standstill Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, do
hereby (i) unconditionally and irrevocably REMISE, RELEASE, AND FOREVER
DISCHARGE the Company and its subsidiaries and all of their respective
predecessors, successors and assigns and legal representatives (hereinafter
collectively referred to as the "COMPANY RELEASED PARTIES"); and (ii)
conditionally REMISE, RELEASE, AND FOREVER DISCHARGE all of the Company's and
its subsidiaries' respective past, present, and future directors, advisory board
members, officers, shareholders, other security holders acting in their capacity
as such, and all of their respective heirs, executors, administrators, and legal
representatives and all other persons and entities who/that might be claimed to
be jointly and/or
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severally liable with THEM (hereinafter collectively referred to as the "COMPANY
AFFILIATES"), in each case of and from all claims, causes of action, suits,
charges, debts, dues, sums of money, fees and costs (including, without
limitation, attorneys' fees and costs), accounts, bills, covenants, contracts,
agreements, expenses, wages, compensation, benefits, promises, damages,
judgments, rights, demands, or otherwise, known or unknown, accrued or
unaccrued, contingent or non-contingent, in equity or in law, which any
Stockholder Releasing Party ever had, now has, or hereafter may have, by reason
of any matter, cause or thing pertaining to the acquisition or ownership of the
Common Stock, the acquisition or attempted acquisition of other securities of
the Company, or the management and operation of the Company, except for any
obligations or liabilities of the Company Released Parties under this Standstill
Agreement. The condition of the release of the Company Affiliates (which for
purposes of this Section 2.05 does not include the Xxxxxxxxxxx Released Parties)
is that if a Company Affiliate asserts any claim of the nature covered by the
releases set forth in this Agreement against any Stockholder Releasing Parties,
the foregoing release shall be automatically revoked and become null and void as
to such Company Affiliate who or which asserts any such claim.
2.06 General Release by Xxxxxxxxxxx of Claims. Xxxxxxxxxxx, for himself
and all of his heirs, executors, administrators, legal representatives and
assigns (collectively, "XXXXXXXXXXX RELEASING PARTIES"), for and in
consideration of all of the terms of this Standstill Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, do hereby unconditionally and irrevocably REMISE, RELEASE, AND
FOREVER DISCHARGE NBO, the Stockholders, their parents, subsidiaries, and
affiliates, and all of their respective past, present, and future directors,
advisory board members, officers, shareholders, other security holders acting in
their capacity as such, and all of their respective predecessors, successors and
assigns, heirs, executors, administrators, and legal representatives and all
other persons and entities who/that might be claimed to be jointly and/or
severally liable with them (hereinafter collectively referred to as the
"STOCKHOLDER RELEASED PARTIES") of and from all claims, causes of action, suits,
charges, debts, dues, sums of money, fees and costs (including, without
limitation, attorneys' fees and costs), accounts, bills, covenants, contracts,
agreements, expenses, wages, compensation, benefits, promises, damages,
judgments, rights, demands, or otherwise, known or unknown, accrued or
unaccrued, contingent or non-contingent, in equity or in law, which any
Xxxxxxxxxxx Releasing Party ever had, now has, or hereafter may have, by reason
of any matter, cause or thing pertaining to the acquisition or ownership of the
Common Stock, the acquisition or attempted acquisition of other securities of
the Company, or the management and operation of the Company, except for any
obligations or liabilities of the Stockholder Released Parties under this
Standstill Agreement or under the Stock Sale Agreement which shall not be
affected by this release.
2.07 General Release by the Company of Claims. The Company, for itself
and all of its subsidiaries, and all of their respective predecessors,
successors and assigns, (collectively, "COMPANY RELEASING PARTIES"), for and in
consideration of all of the terms of this Standstill Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, do hereby unconditionally and irrevocably REMISE, RELEASE, AND
FOREVER DISCHARGE the Stockholder Released Parties of and from all claims,
causes of
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action, suits, charges, debts, dues, sums of money, fees and costs (including,
without limitation, attorneys' fees and costs), accounts, bills, covenants,
contracts, agreements, expenses, wages, compensation, benefits, promises,
damages, judgments, rights, demands, or otherwise, known or unknown, accrued or
unaccrued, contingent or non-contingent, in equity or in law, which any Company
Releasing Party ever had, now has, or hereafter may have, by reason of any
matter, cause or thing pertaining to the acquisition or ownership of the Common
Stock, the acquisition or attempted acquisition of other securities of the
Company, or the management and operation of the Company, except for any
obligations or liabilities of the Stockholder Released Parties under this
Standstill Agreement or under the Stock Sale Agreement which shall not be
affected by this release.
2.08 Indemnity. Each of the Schostaks, jointly and severally, agrees to
indemnify Xxxxxxxxxxx and hold him harmless from any and all losses incurred by
Xxxxxxxxxxx as a result of any breach by NBO of any of its representations,
warranties, covenants and agreements contained in the Stock Sale Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF NBO
NBO hereby represents and warrants to Xxxxxxxxxxx and the
Company as follows:
3.01 Incorporation. NBO is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Michigan. NBO has the requisite power and authority to execute and deliver this
Standstill Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby.
3.02 Authority. The execution and delivery by NBO of this
Standstill Agreement, and the performance by NBO of its obligations hereunder,
have been duly and validly authorized by NBO , no other action on the part of
NBO or its members being necessary. This Standstill Agreement has been duly and
validly executed and delivered by NBO and constitutes a legal, valid and binding
obligation of NBO enforceable against NBO in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
3.03 No Conflicts. The execution and delivery by NBO of this
Standstill Agreement do not, and the performance by NBO of its obligations under
this Standstill Agreement and the consummation of the transactions contemplated
hereby will not:
6
(a) conflict with or result in a violation or breach of any of
the terms, conditions or provisions of the limited liability company agreement
or other organizational documents or instruments of NBO;
(b) conflict with or result in a violation or breach of any
term or provision of any law, statute, rule or regulation or any order, judgment
or decree of any Governmental or Regulatory Authority applicable to NBO or any
of its properties or assets; or
(c) (i) conflict with or result in a violation or breach of,
(ii) constitute (with or without notice or lapse of time or both) a default
under, or (iii) require NBO to obtain any consent, approval or action of, make
any filing with or give any notice to any Person as a result or under the terms
of any contract, agreement, plan, permit or license to which NBO is a party.
3.04 Governmental Approvals and Filings. No consent, approval
or action of, filing with or notice to any Governmental or Regulatory Authority
on the part of NBO is required in connection with the execution, delivery and
performance of this Standstill Agreement or the consummation of the transactions
contemplated hereby, other than filings under the Exchange Act in connection
with the transactions contemplated by this Standstill Agreement.
3.05 Common Stock Ownership. As of the date hereof, NBO is not
the beneficial owner of any Equity Securities.
3.06 Legal Proceedings. There is no action, suit,
investigation, audit, arbitration or proceeding before or by any governmental
entity pending against, or to the knowledge of NBO, threatened, relating to or
affecting NBO or any of its assets and properties which could reasonably be
expected to result in the issuance of an order restraining, enjoining or
otherwise prohibiting or making illegal the consummation of any of the
transactions contemplated by this Standstill Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SCHOSTAKS
Each Schostak hereby represents and warrants to Xxxxxxxxxxx
and the Company as follows:
4.01 Competence. Each of the Schostaks is legally competent
and has the capacity to execute and deliver this Standstill Agreement, to
perform his obligations hereunder and to consummate the transactions
contemplated hereby.
4.02 Authority. This Standstill Agreement has been duly and
validly executed and delivered by each Schostak and constitutes a legal, valid
and binding obligation of such Schostak enforceable against such Schostak in
accordance with its terms, except as
7
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
4.03 No Conflicts. The execution and delivery by each Schostak
of this Standstill Agreement do not, and the performance by each Schostak of
such Schostak's obligations under this Standstill Agreement and the consummation
of the transactions contemplated hereby will not:
(a) conflict with or result in a violation or breach of any
term or provision of any law, statute, rule or regulation or any order, judgment
or decree of any Governmental or Regulatory Authority applicable to such
Schostak or any of such Schostak's properties or assets; or
(b) (i) conflict with or result in a violation or breach of,
(ii) constitute (with or without notice or lapse of time or both) a default
under, (iii) require such Schostak to obtain any consent, approval or action of,
make any filing with or give any notice to any Person as a result or under the
terms of, any contract, agreement, plan, permit or license to which such
Schostak is a party.
4.04 Governmental Approvals and Filings. No consent, approval
or action of, filing with or notice to any Governmental or Regulatory Authority
on the part of any Schostaks is required in connection with the execution,
delivery and performance of this Standstill Agreement or the consummation of the
transactions contemplated hereby, other than filings under the Exchange Act in
connection with the transactions contemplated by this Standstill Agreement.
4.05 Common Stock Ownership. As of the date hereof, none of
the Schostaks or any other member of the Restricted Group is the beneficial
owner of any Equity Securities.
4.06 Legal Proceedings. There is no action, suit,
investigation, audit, arbitration or proceeding before or by any governmental
entity pending against, or to the knowledge of any of the Schostaks, threatened,
relating to or affecting any of the Schostaks or any of their assets and
properties which could reasonably be expected to result in the issuance of an
order restraining, enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated by this Standstill
Agreement.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF XXXXXXXXXXX
Xxxxxxxxxxx hereby represents and warrants to NBO and the Schostaks as
follows:
5.01 Competence. Xxxxxxxxxxx is legally competent and has the
capacity to execute and deliver this Standstill Agreement, to perform his
obligations hereunder and to consummate the transactions contemplated hereby.
5.02 Authority. This Standstill Agreement has been duly and
validly executed and delivered by Xxxxxxxxxxx and constitutes a legal, valid and
binding obligation of Xxxxxxxxxxx enforceable against Xxxxxxxxxxx in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
5.03 No Conflicts. The execution and delivery by Xxxxxxxxxxx
of this Standstill Agreement do not, and the performance by Xxxxxxxxxxx of his
obligations under this Standstill Agreement and the consummation of the
transactions contemplated hereby will not:
(a) conflict with or result in a violation or breach of any
term or provision of any law, statute, rule or regulation or any order, judgment
or decree of any Governmental or Regulatory Authority applicable to Xxxxxxxxxxx
or any of his properties or assets; or
(b) (i) conflict with or result in a violation or breach of,
(ii) constitute (with or without notice or lapse of time or both) a default
under, or (iii) require Xxxxxxxxxxx to obtain any consent, approval or action
of, make any filing with or give any notice to any Person as a result or under
the terms of any contract, agreement, plan, permit or license to which
Xxxxxxxxxxx is a party which has not previously been obtained.
5.04 Governmental Approvals and Filings. No consent, approval
or action of, filing with or notice to any Governmental or Regulatory Authority
on the part of Xxxxxxxxxxx is required in connection with the execution,
delivery and performance of this Standstill Agreement or the consummation of the
transactions contemplated hereby, other than filings under the Exchange Act in
connection with the transactions contemplated by this Standstill Agreement.
5.05 Legal Proceedings. There is no action, suit,
investigation, audit, arbitration or proceeding before or by any governmental
entity pending against, or to Xxxxxxxxxxx'x knowledge, threatened, relating to
or affecting Xxxxxxxxxxx or any of his assets and properties which could
reasonably be expected to result in the issuance of an order restraining,
enjoining or otherwise prohibiting or making illegal the consummation of any of
the transactions contemplated by this Standstill Agreement.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to NBO and the
Schostaks as follows:
6.01 Authority. The execution and delivery by the Company of
this Standstill Agreement, and the performance by the Company of its obligations
hereunder, have been duly and validly authorized by the Board of Directors of
the Company, no other corporate action on the part of the Company or its
stockholders being necessary. The Company has taken all requisite corporate
action to authorize Xxxxxxxxxxx to purchase the Shares and no further corporate
action by the Company is required for the execution and delivery by Xxxxxxxxxxx
of the Stock Sale Agreement or the performance of his obligations thereunder.
This Standstill Agreement has been duly and validly executed and delivered by
the Company and constitutes a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
6.02 No Conflicts. The execution and delivery by the Company
of this Standstill Agreement do not, and (i) the performance by the Company of
its obligations under this Standstill Agreement and the consummation of the
transactions contemplated hereby; and (ii) the performance by Xxxxxxxxxxx of his
obligations under the Stock Sale Agreement and the consummation of the
transactions contemplated thereby will not:
(a) conflict with or result in a violation or breach of any
of the terms, conditions or provisions of the articles of incorporation or
bylaws of the Company;
(b) conflict with or result in a violation or breach of any
term or provision of any law, statute, rule or regulation or any order, judgment
or decree of any Governmental or Regulatory Authority applicable to the Company
or any of its properties or assets; or
(c) (i) conflict with or result in a violation or breach of,
(ii) constitute (with or without notice or lapse of time or both) a default
under, or (iii) require the Company to obtain any consent, approval or action
of, make any filing with or give any notice to any Person as a result or under
the terms of any contract, agreement, plan, permit or license to which the
Company is a party which has not previously been obtained.
6.03 Governmental Approvals and Filings. No consent, approval
or action of, filing with or notice to any Governmental or Regulatory Authority
on the part of the Company is required in connection with the execution,
delivery and performance of this Standstill Agreement, the Stock Sale Agreement
or the consummation of the transactions
10
contemplated hereby or thereby, other than filings under the Exchange Act in
connection with the transactions contemplated by this Standstill Agreement and
the Stock Sale Agreement.
6.04 Legal Proceedings. There is no action, suit,
investigation, audit, arbitration or proceeding before or by any governmental
entity pending against, or to the Company's knowledge, threatened, relating to
or affecting the Company or any of its assets and properties which could
reasonably be expected to result in the issuance of an order restraining,
enjoining or otherwise prohibiting or making illegal the consummation of any of
the transactions contemplated by this Standstill Agreement.
ARTICLE VII
GENERAL PROVISIONS
7.01 Survival of Representations, Warranties, Covenants and
Agreements. Notwithstanding any right of any party (whether or not exercised) to
investigate the accuracy of the representations and warranties of the other
party contained in this Standstill Agreement, each party hereto has the right to
rely fully upon the representations and warranties of the others contained in
this Standstill Agreement. Except as provided in Section 7.02, the
representations, warranties, covenants and agreements of each party hereto
contained in this Standstill Agreement will survive the execution and delivery
of this Standstill Agreement.
7.02 Termination. This Standstill Agreement and all rights and
obligations of the parties hereunder shall automatically terminate, and shall
cease to be of any further force and effect, upon the earlier of (a) the mutual
written agreement of the Schostaks and the Company, or (b) the Termination Date;
provided that the provisions contained in Sections 2.04, 2.05, 2.06 and 2.07
shall survive and not be affected by any such termination. Notwithstanding the
termination of this Standstill Agreement, nothing contained herein shall relieve
any party hereto from liability for breach of any of such party's
representations, warranties, covenants or agreements contained in this
Standstill Agreement occurring prior to such termination.
7.03 Amendment and Waiver. (a) This Standstill Agreement may
be amended, supplemented or modified only by a written instrument duly executed
by or on behalf of each party hereto provided, however, that Sections 2.01 and
2.02 may be amended, supplemented, modified or waived without the consent of
Xxxxxxxxxxx and Xxxxxxxxxxx shall be deemed to have consented to any such
amendment, supplement, modification or waiver, if the Company has consented in
writing.
(b) Any term or condition of this Standstill Agreement may be
waived at any time by the party that is entitled to the benefit thereof, but no
such waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition. No waiver
by any party of any term or condition of this Standstill 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 Standstill Agreement on any future occasion.
All remedies, either
11
under this Standstill Agreement or by law or otherwise afforded, will be
cumulative and not alternative.
7.04 Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first class postage
prepaid) to the parties at the following addresses or facsimile numbers:
If to NBO or the Schostaks to:
NBO, LLC
00000 Xxxxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxxxx
with a copy to:
Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxxx X. XxXxxxxxxx, Esq.
If to Xxxxxxxxxxx to:
Xxxxxx X. Xxxxxxxxxxx
c/o Quality Dining, Inc.
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
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If to the Company to:
Quality Dining, Inc.
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attn: General Counsel
with a copy to:
Xxxxx and Xxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, Xx 00000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto.
7.05 Entire Agreement. This Standstill Agreement together with
the Stock Sale Agreement supersedes all prior discussions and agreements among
the parties hereto with respect to the subject matter hereof, and contains, the
sole and entire agreement among the parties hereto with respect to the subject
matter hereof.
7.06 No Third Party Beneficiary. The terms and provisions of
this Standstill Agreement are intended solely for the benefit of each party
hereto, and it is not the intention of the parties to confer third-party
beneficiary rights upon any other Person.
7.07 No Assignment; Binding Effect. Neither this Standstill
Agreement nor any right, interest or obligation hereunder may be assigned by any
parties hereto without the prior written consent of the other party hereto and
any attempt to do so will be void. Subject to the preceding sentence, this
Standstill Agreement is binding upon, inures to the benefit of and is
enforceable by the parties hereto and their respective successors and assigns
and legal representatives.
7.08 Specific Performance; Legal Fees. The parties
acknowledge that money damages are not an adequate remedy for violations of any
provision of this Standstill Agreement
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and that any party may, in such party's sole discretion, apply to a court of
competent jurisdiction for specific performance for injunctive or such other
relief as such court may deem just and proper in order to enforce any such
provision or prevent any violation hereof and, to the extent permitted by
applicable law, each party waives any objection to the imposition of such
relief. The parties hereto agree that, in the event that any party to this
Standstill Agreement shall bring any legal action or proceeding to enforce or to
seek damages or other relief arising from an alleged breach of any term or
provision of this Standstill Agreement by any other party, the prevailing party
in any such action or proceeding shall be entitled to an award of, and the other
party to such action or proceeding shall pay, the reasonable fees and expenses
of legal counsel to the prevailing party.
7.09 Headings. The headings used in this Standstill Agreement
have been inserted for convenience of reference only and do not define or limit
the provisions hereof.
7.10 Invalid Provisions. If any provision of this Standstill
Agreement is held to be illegal, invalid or unenforceable under any present or
future law, and if the rights or obligations of any party hereto under this
Standstill Agreement will not be materially and adversely affected thereby, (i)
such provision will be fully severable, (ii) this Standstill Agreement will be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof and (iii) the remaining provisions of this
Standstill Agreement will remain in full force and effect and will not be
affected by the illegal, invalid or unenforceable provision or by its severance
herefrom.
7.11 Governing Law. This Standstill Agreement has been
negotiated and entered into in the State of Indiana and shall be governed by and
construed in accordance with the laws of the State of Indiana applicable to a
contract executed and performed in such State, without giving effect to the
conflicts of laws principles thereof.
7.12 Consent to Jurisdiction and Service of Process. Each
party hereby irrevocably submits to the exclusive jurisdiction of the United
States District Court for the Northern District of Indiana in St. Xxxxxx County
in any action, suit or proceeding arising in connection with this Standstill
Agreement and brought within five (5) years from the date hereof; agrees that
any such action, suit or proceeding brought within such period shall be brought
only in such court (and waives any objection based on forum non conveniens or
any other objection to venue therein and to the extent permitted by law); and
agrees to delivery of service of process in connection with any such action,
suit or proceeding brought within such period by any of the methods by which
notices may be given pursuant to Section 7.04, with such service being deemed
given as provided in such Section; provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this Section 7.12 and
shall not be deemed to be a general submission to the jurisdiction of said court
or in the State of Indiana other than for such purpose. Nothing herein shall
affect the right of any party to serve process in any other manner permitted by
law or to commence legal proceedings or otherwise proceed against the other in
any other jurisdiction.
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7.13 Expenses. Each party will pay its own costs and
expenses incurred in connection with the negotiation and execution of this
Standstill Agreement.
7.14 Counterparts. This Standstill Agreement may be executed
in any number of counterparts, each of which will be deemed an original, but all
of which together will constitute one and the same instrument.
IN WITNESS WHEREOF, each party hereto has signed this
Standstill Agreement, or caused this Standstill Agreement to be signed by its
officer or member thereunto duly authorized, as of the date first above written.
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx, Individually
QUALITY DINING, INC.,
an Indiana corporation
By:
----------------------------------------
Name:
--------------------------------------
Title: Executive Vice President
NBO, LLC,
a Michigan limited liability company
By:
----------------------------------------
Name:
--------------------------------------
Title: Member
-------------------------------------------
XXXXXX X. XXXXXXXX
-------------------------------------------
XXXXX X. XXXXXXXX
-------------------------------------------
XXXXXX X. XXXXXXXX
-------------------------------------------
XXXX X. XXXXXXXX
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