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TEXT OF THE REORGANIZATION AGREEMENT
WAS PREVIOUSLY FILED
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Exhibit 9.1 (c)(ii)
Draft 21 May 1997
[On Freshfields' headed notepaper]
PROJECT MERCURY
Strictly private & confidential 0171 B32 7031
FAO: General Counsel F1/MJH
Daka International, Inc.
One Corporate Place
00 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
June __, 1997
Dear Sir:
COMPASS GROUP PLC: ACQUISITION BY MERGER OF DAKA INTERNATIONAL INC.
INTRODUCTION
1. We have acted as advisers as to English law to Compass Group
PLC ("Compass") in relation to certain aspects of the Agreement and Plan of
Merger (the "Agreement") dated as of [________] May 1997 made by and among Daka
International, Inc. ("International"), Compass Holdings, Inc. ("Compass
Holdings"), Compass Interim, Inc. ("Compass Interim") and Compass pursuant to
which, we understand, Compass Holdings shall offer to purchase for cash any and
all of the common stock, par value $.01 per share, of International (the
"Offer") following which, upon successful completion of the Offer, and following
the Contribution and Distribution, Compass Interim will merge with and into
International and then such common stock of International shall be cancelled and
retired. This opinion is furnished to you at the request of Compass pursuant to
Section 9.1(c) of the Reorganization Agreement (referred to at paragraph 2.(c)
below). Terms defined in the Agreement are incorporated herein by reference.
2. In connection with the above-mentioned transaction, we have
examined facsimile copies of the following documents:
(a) the executed Agreement dated [__] May 1997;
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(b) the executed Post-Closing Covenants Agreement dated
[__] May 1997 by and among International, Daka, Inc.
("Daka"), New International, Inc. ("New
International"), Champps Entertainment, Inc.
("Champps), Fuddruckers, Inc. ("Fuddruckers"),
Compass Holdings and Compass (the "Post-Closing
Covenants Agreement");
(c) the executed Reorganization Agreement dated [__] May
1997 by and among International, Daka, New
International, Compass-Holdings and Compass (the
"Reorganization Agreement");
(d) the executed Tax Allocation Agreement dated [__] May
1997 by and among International, New International
and Compass (the "Tax Allocation Agreement");
(e) a copy of the Certificate of the Company Secretary of
Compass dated [_______] 1997 having attached thereto
minutes of a meeting of the Board of Directors of
Compass held on [_________] 1997 authorizing the
entry into and execution of the Agreement, the
Post-Closing Covenants Agreement, the Reorganization
Agreement, the Tax Allocation Agreement and certain
other documents referred to in such minutes (the
"Secretary's Certificate");
(f) a copy of the Certificate of Incorporation on
re-registration of Compass as a public company dated
15 November 1988 referred to in the Secretary's
Certificate;
(g) a copy of the Memorandum and Articles of Association
of Compass dated as at 31 January 1997 referred to in
the Secretary's Certificate;
and relied upon the statements as to factual matters contained in or
made pursuant to each of the above-mentioned documents.
3. This opinion is confined to matters of English law.
Accordingly, we express no opinion herein with regard to any system of law other
than the laws of England as currently applied by the English courts. In
particular, we express no opinion on European Community law as it affects any
jurisdiction other than England. Statements relating to United Kingdom taxation
are based on the laws of England as currently applied by the English courts and
on generally published practice of the Inland Revenue and H.M. Customs and
Excise applying as at the date of this opinion. This opinion is to be governed
by and construed in accordance with English law as at the date of this opinion.
To the extent that the laws of any State of the United States of America or U.S.
federal laws may be relevant, we have made no independent investigation thereof
and our opinion is subject to the effect of such laws including the matters
contained in the opinion of today's date addressed to you by Xxxxx Xxxxx Mulliss
& Xxxxx, L.L.P. We express no views on the validity of the matters set out in
such opinion.
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ASSUMPTIONS
4. In considering the above documents and in rendering this
opinion we have with your consent and without any further enquiry assumed:
(a) the genuineness of all signatures on, and the
authenticity and completeness of, all documents
submitted to us whether as originals or copies
(facsimile or otherwise);
(b) the conformity to originals of all documents supplied
to us as photocopies or facsimile copies;
(c) that, where a document has been examined by us in
draft or specimen form, it will be or has been
executed in the form of that draft or specimen;
(d) that each of the statements contained in the
Secretary's Certificate is true and correct as at the
date hereof;
(e) that each of the Agreement, the Post-Closing
Covenants Agreement, the Tax Allocation Agreement and
the Reorganization Agreement has been duly
authorized, executed and delivered by each of the
parties thereto in accordance with all applicable
laws (other than, in the case of Compass, the laws of
England);
(f) that each of the Agreement, the Post-Closing
Covenants Agreement, the Tax Allocation Agreement and
the Reorganization Agreement constitutes legal, valid
and binding obligations of each of the parties
thereto enforceable in accordance with its terms
under all applicable laws including the laws of the
State of Delaware by which each the Agreement, the
Post Closing Covenants Agreement, the Tax Allocation
Agreement and the Reorganization Agreement is
expressed to be governed (other than, in the case of
Compass, the laws of England) and that satisfactory
evidence of the laws of the State of Delaware which
is required to be pleaded and proved as a fact in any
proceedings before the English courts could be so
pleaded and proved;
(g) that each of the Agreement, the Post Closing
Covenants Agreement, the Tax Allocation Agreement and
the Reorganization Agreement has been delivered by
Compass and is not subject to any escrow or other
similar arrangement.
(h) that each of the Agreement, the Post Closing
Covenants Agreement, the Tax Allocation Agreement and
the Reorganization Agreement has been
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entered into for bona fide commercial reasons and on
arms length terms by each of the parties thereto;
(i) that the directors of Compass in authorizing
execution of the Agreement, the Post Closing
Covenants Agreement, the Tax Allocation Agreement and
the Reorganization Agreement have exercised their
powers in accordance with their duties under all
applicable laws and the Memorandum and Articles of
Association of Compass; and
(j) that the information revealed by our search of the
public microfiches of Compass kept at the Companies
Registration Office in London referred to in
paragraph 5(a)(i) below and our oral inquiry today of
the Central Registry of Winding up Petitions referred
to in paragraph 5(a)(ii) below was accurate in all
respects and has not since the time of such search or
inquiry been altered.
OPINION
5. On the basis of, and subject to, the foregoing and the matters
set out in paragraph 6 below and any matters not disclosed to us, and having
regard to such considerations of English law in force as at the date of this
letter as we consider relevant, we are of the opinion that:
(a) Compass has been duly incorporated in Great Britain
and registered in England and Wales with limited
liability as a public company and:
(i) our search today of the public microfiche of
Compass kept at the Companies Registration
Office in London revealed no order or
resolution for the winding up of Compass and
no notice of appointment in respect of
Compass of a liquidator, receiver,
administrative receiver or administrator;
and
(ii) the Central Registry of Winding up Petitions
has confirmed in respect to our oral inquiry
today that no petition for the winding up of
Compass has been presented within the period
of six months covered by such inquiry.
(b) Compass has the requisite corporate power to enter
into each of the Agreement, the Post-Closing
Covenants Agreement, the Tax Allocation Agreement and
the Reorganization Agreement and to perform its
obligations thereunder;
(c) the execution and delivery of each of the Agreement,
the Post Closing Covenants Agreement, the Tax
Allocation Agreement and the
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Reorganization Agreement has been duly authorized by
all necessary corporate action on the part of
Compass, and each of the Agreement, the Post-Closing
Covenants Agreement, the Tax Allocation Agreement and
the Reorganization Agreement has been duly executed
and delivered by Compass which execution and delivery
do not and will not result in any violation by
Compass of any terms of its Memorandum or Articles of
Association or of any law or regulation having the
force of law in England and applicable to Company;
(d) the obligations of Compass under each of the
Agreement, the Post-Closing Covenants Agreement, the
Tax Allocation Agreement and the Reorganization
Agreement will be recognized by, and enforceable in,
the English courts;
(e) no consents, licenses, approvals or authorizations of
any governmental or other authority or agency in the
United Kingdom are required by law in connection with
the execution, delivery and performance of each of
the Agreement, the Post-Closing Covenants Agreement,
the Tax Allocation Agreement and the Reorganization
Agreement by Compass; and
(f) no filing or registration of the Agreement, the
Post-Closing Covenants Agreement, the Tax Allocation
Agreement or the Reorganization Agreement is
necessary under English law.
QUALIFICATIONS
6. Our opinion is subject to the following qualifications:
(a) the search at the Companies Registration Office
referred to in paragraph 5(a)(i) above is not
conclusively capable of revealing whether or not:
(i) a winding up order has been made or a
resolution passed for the winding up of a
company; or
(ii) an administration order has been made; or
(iii) a receiver, administrative receiver,
administrator or liquidator has been
appointed,
as notice of these matters may not be filed with the Registrar
of Companies immediately and, when filed, may not be entered
on the public microfiche of the relevant company immediately.
In addition, the search is not capable of
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revealing, prior to the making of the relevant order, whether
or not a winding up petition for an administration order has
been presented;
(b) the inquiries at the Central Registry of Winding up
Petitions referred to in paragraph 5(a)(ii) above
relate only to a compulsory winding up and is not
conclusively capable of revealing whether or not a
winding up petition in respect of a compulsory
winding up has been presented since details of the
petition may not have been entered on the records of
the Central Registry of Winding up Petitions
immediately or in the case of a petition presented to
a County Court, may not have been notified to the
Central Registry and entered on such records at all,
and the response to an inquiry only relates to the
period of six months prior to the date when the
inquiry was made;
(c) the choice of the laws of the State of Delaware to
govern each of the Agreement, the Post-Closing
Covenants Agreement, the Tax Allocation Agreement and
the Reorganization Agreement would not be recognized
or upheld if there were reasons for avoiding the
choice of law on the grounds that its application
would be manifestly incompatible with public policy.
The choice of the laws of the State of Delaware would
not be upheld, for example, if it was made with the
intention of evading the law of the jurisdiction with
which the contract had its most substantial
connection and which, in the absence of laws of the
State of Delaware, would have invalidated the
contract or been inconsistent therewith;
(d) English courts can give judgments in currencies other
than sterling if, subject to the terms of the
contract, it is the currency which most fairly
expresses the plaintiff's loss but such judgments may
be required to be converted into sterling for
enforcement purposes.
(e) an English court has power to stay an action where it
is shown that there is some other forum, having
competent jurisdiction, which is more appropriate for
the trial of the action, that is in which the case
can be tried more suitably for the interest of all
the parties and the ends of justice, and where
staying the action is not inconsistent with the EEC
Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters of 1968 (as
amended) and subordinate legislation made thereunder
or with the Lugano Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial
Matters of 1988 as applied by virtue of the Civil
Jurisdiction and Judgments Act of 1991;
(f) under the rules of procedure applicable, an English
court may, at its discretion, order a plaintiff in an
action, being a party who is not
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ordinarily resident in some part of the United
Kingdom, to provide security for costs;
(g) an English court may refuse to give effect to any
provision in an agreement (i) for the payment of
expenses in respect of the costs of enforcement
(accrual or contemplate) or of unsuccessful
litigation brought before an English court or where
the court has itself made an order for costs or (ii)
which would involve the enforcement of foreign
revenue or penal laws or (iii) which would be
inconsistent with English public policy;
(h) a judgment rendered by a court of a foreign country
has no direct operation in England but may be
enforceable by action, counterclaim or registration
(where applicable) or be recognized by the English
courts as a defense to an action or as conclusive of
an issue in an action. A judgment rendered by a court
of a foreign country would not be recognized or
enforced by the English courts:
(i) unless the foreign court was duly invested
with jurisdiction under all applicable
foreign laws and had jurisdiction under
English conflict of laws rules; or
(ii) if it was not final and conclusive in the
court which rendered it under all applicable
foreign laws (provided that it may be final
and conclusive, though subject to an appeal
and an appeal against it is actually pending
in the foreign country where it was given);
or
(iii) if it was not for a debt or a definite sum
of money (not being of a revenue or penal
nature); or
(iv) if the matter had previously been determined
by an English court; or
(v) without a retrial or re-examination if such
judgment was obtained by fraud or in a
manner opposed to a natural justice; or
(vi) if the recognition or enforcement thereof
were contrary to public policy or to Section
5 of the Protection of Trading Xxxxxxxxx Xxx
0000; or
(vii) if the enforcement thereof would involve the
enforcement of foreign revenue or penal or
other public laws; or
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(viii) if the recognition or enforcement thereof
were contrary to the Administration of
Justice Xxx 0000 or the Foreign Judgments
(Reciprocal Enforcements) Xxx 0000 or the
EEC Convention on Jurisdiction and the
Enforcement of Judgments in Civil and
Commercial Matters of 1968 (as amended) or
the Civil Jurisdiction and Judgments Xxx
0000 (as amended) or subordinate legislation
made thereunder or the Lugano Convention on
Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Masters of
1988 or the civil Jurisdiction and Judgments
Xxx 0000, to the extent applicable.
(i) an English court may not hold an agreement to be
effective or to have priority from a certain date
merely by reason of the agreement being stated to be
dated as of that date;
(j) the term "enforceable" as used in this opinion means
that the obligations assumed by the relevant party
under the relevant document are of the type which the
English courts enforce. This opinion is not to be
taken to imply that any obligation would necessarily
be capable of enforcement in all circumstances in
accordance with its terms. In particular:
(i) an English court will not necessarily grant
any remedy the availability of which is
subject to equitable considerations or which
is otherwise in the discretion of the court.
In particular, orders for specific
performance and injunctions are, in general,
discretionary remedies under English law and
specific performance is not available where
damages are considered by the court to be an
adequate alternative remedy;
(ii) claims may become barred under the
Limitation Act of 1980 or the Foreign
Limitation Periods Act of 1984 or may be or
become subject to the defense of set-off or
to counterclaim;
(iii) where obligations are to be performed in a
jurisdiction outside England, they may not
be enforceable in England to the extent that
performance would be illegal under the laws,
or contrary to the exchange control
regulations, of the other jurisdiction; and
(iv) the enforcement of obligations may be
limited by the provisions of English law
applicable to agreements held to have been
frustrated by events happening after their
execution;
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(k) this opinion is subject to all applicable laws
relating to insolvency, bankruptcy, administration,
reorganization, liquidation or analogous
circumstances.
OBSERVATIONS
7. We should also like to make the following observations:
(a) we have not been involved in the detailed preparation
of the Agreement, the Post-Closing Covenants
Agreement, the Tax Allocation Agreement or the
Reorganization Agreement and have reviewed each of
those documents only for the limited purpose of
giving this opinion in relation to the points set out
at paragraph 5 above of this opinion. Accordingly, we
express no view as to the suitability of the
Agreement, the Post-Closing Covenants Agreements, the
Tax Allocation Agreement or the Reorganization
Agreement or any of their respective provisions or
general compliance with market practice or any
commercial aspects of these documents; and
(b) we have not considered the particular circumstances
of International nor the effect of any such
particular circumstances on the Post-Closing
Covenants Agreement, the Tax Allocation Agreement or
the Reorganization Agreement or the effect of the
transaction contemplated by any document referred to
herein on any such particular
circumstances.
BENEFIT OF OPINION
8. This opinion is addressed to you solely for your own benefit
in relation to Compass in connection with Compass causing Compass Holdings to
acquire International (by the merger of International with and into Compass
Interim) and, except with our prior written consent, is not to be transmitted or
disclosed to or used or relied upon by any other person (except that you may
disclose a copy to your bank examiners, auditors and counsel) or used or relied
upon by you for any other purpose.
Yours faithfully,
Freshfields
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EXHIBIT 9.1(c)(i)
FORM OF XXXXX XXXXX MULLISS & XXXXX, L.L.P. LEGAL OPINION
Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P. shall deliver an opinion as to the following
matters:
1. Each of Compass Holdings and Compass Interim is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware with full corporate power and authority to own, lease and operate its
properties and all requisite corporate power to conduct its business as it is
now being conducted and to execute and deliver the Merger Agreement and to
perform all of its obligations thereunder. Each of Compass Holdings and Compass
Interim is duly qualified or licensed to do business and in good standing in
each jurisdiction in which the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification or licensing
necessary, except where the failure to be so duly qualified or licensed and in
good standing would not have a material adverse effect on Compass and its
subsidiaries, taken as a whole.
2. Each of the Transaction Documents constitutes the legal, valid and
binding agreement or obligation of each of Compass Holdings and Compass Interim,
enforceable against each of them in accordance with its terms, subject as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other similar laws now or hereafter in
effect, to the application of principles of public policy and to equitable
principles that may limit the right to specific enforcement of remedies.
3. The execution, delivery and performance of the Transaction Documents
by Compass, Compass Holdings and Compass Interim, as applicable, and the
consummation by them of the transactions contemplated thereby does not (i) to
our knowledge, violate any Delaware statute or federal statute applicable to
Compass, Compass Holdings or Compass Interim, or any material order, writ,
injunction, judgment or decree of any United States or Delaware court,
administrative agency or governmental authority applicable to Compass, Compass
Holdings or Compass Interim, (ii) violate the Certificate of Incorporation of
Bylaws of Compass Holdings or Compass Interim, or (iii) to our knowledge,
require any consent or approval by, notice to or registration with any
Governmental Entity the failure to obtain or make which would materially and
adversely affect the ability of Compass, Compass Holdings or Compass Interim to
fulfill their respective obligations under the Transaction Documents, as
applicable, other than the appropriate filings pursuant to the Exchange Act, the
HSR Act and the Exon-Xxxxxx Amendment and the expiration of the applicable
waiting periods thereunder.
4. To our knowledge, there is no litigation pending or threatened
against Compass, Compass Holdings or Compass Interim seeking to enjoin the
transactions described in Transaction Documents, or which, if decided adversely,
would materially impair the ability of Compass, Compass Holdings or Compass
Interim to fulfill its respective obligations under the Transaction Documents.
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Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P. may include in its opinion such
conditions and qualifications as are customary for similar transactions. For
purposes hereof, "Knowledge" shall mean the actual knowledge of the lawyers
involved in this transaction without any investigation by them.
