<PAGE> 1
As filed with the Securities and Exchange Commission on July 31, 1997
REGISTRATION STATEMENT NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
UNIQUE CASUAL RESTAURANTS, INC.
(Exact name of Registrant as Specified in Its Charter)
DELAWARE 04-3370491
(State of Incorporation) (I.R.S. Employer Identification Number)
ONE CORPORATE PLACE
55 FERNCROFT ROAD
DANVERS, MA 01923-4001
(508) 774-9115
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
UNIQUE CASUAL RESTAURANTS, INC. 1997 STOCK PURCHASE PLAN
(Full Title of the Plan)
------------------------
WILLIAM H. BAUMHAUER
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
UNIQUE CASUAL RESTAURANTS, INC.
ONE CORPORATE PLACE
55 FERNCROFT ROAD
DANVERS, MASSACHUSETTS 01923-4001
(508) 774-9115
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------
With copies to:
CHARLES W. REDEPENNING, JR., ESQ.
UNIQUE CASUAL RESTAURANTS, INC.
ONE CORPORATE PLACE
55 FERNCROFT ROAD
DANVERS, MASSACHUSETTS 01903-4001
(508) 774-9115
------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
============================================================================================================================
Title of Securities Being Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered(1)(2) Offering Price Per Share(3) Aggregate Offering Price(3) Registration Fee
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 400,000 shares $6.84375 $2,737,500 $830
per share
============================================================================================================================
<FN>
(1) Plus such additional number of shares as may be required pursuant to the 1997 Stock Purchase Plan in the event of a stock
dividend, reverse stock split, split-up, recapitalization or other similar event.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the "Securities Act"), this registration
statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan
described herein.
(3) This estimate is made pursuant to Rule 457(c) and (h) under the Securities Act solely for the purposes of determining the
amount of the registration fee. The registration fee is based upon the average of the high and low sales prices for the
Registrant's common stock, par value $0.01 per share (the "Common Stock"), as reported on the Nasdaq National Market on July
24, 1997.
=============================================================================================================================
</TABLE>
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
Unique Casual Restaurants, Inc. (the "Registrant") hereby incorporates by
reference the documents listed in (a) through (c) below, which have previously
been filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Registration Statement on Form 10, filed pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act");
(b) Not Applicable; and
(c) The description of the Registrant's Common Stock contained in its
Registration Statement on Form 10, filed pursuant to Section 12(g) of the
Exchange Act.
In addition, all documents subsequently filed with the Commission by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereunder have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officer.
----------------------------------------
The Registrant is a Delaware corporation. Reference is made to Section
145(a) and Section 145(b) of the Delaware General Corporation Law (the "DGCL"),
which enables a corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he or she is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorney's fees),
judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action, suit or proceeding if he
or she acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
<PAGE> 3
A corporation may also indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he or she was a director, officer, employee or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorney's fees)
actually and reasonably incurred by him or her connection with the defense or
settlement of such action or suit if he or she acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation and except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged to
be liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 145 further provides: that a Delaware corporation is required to
indemnify a director, officer, employee or agent against expenses (including
attorney's fees) actually and reasonably incurred by him in connection with any
action, suit or proceeding or in defense of any claim, issue or matter therein
as to which such person has been successful on the merits or otherwise; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that
indemnification provided for by Section 145 shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of such
person's heirs, executors and administrators. A Delaware corporation may provide
indemnification only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper in
the circumstances because he has met the applicable standard of conduct. Such
determination is to be made (i) by the board of directors by vote of directors
who were not party to such action, suit or proceeding, or (ii) if such a quorum
is not obtainable, or even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion or (iii) by the
stockholders.
The Amended and Restated By-laws of the Registrant provide that directors
and officers of the Registrant shall be, and, in the discretion of the Board of
Directors, non-officer employees may be, indemnified by the Registrant to the
fullest extent authorized by Delaware law, as it now exists or may in the future
be amended, against all expenses and liabilities reasonably incurred in
connection with service for or on behalf of the Registrant, and under certain
circumstances in connection with service for or on behalf of DAKA International,
Inc. ("DAKA"). The Amended and Restated By-laws also provide that the right of
directors and officers to indemnification shall be a contract right and shall
not be exclusive of any other right now possessed or hereafter acquired under
any by-law, agreement, vote of stockholders or otherwise. The Amended and
Restated Certificate of Incorporation contains a provision permitted by Delaware
law that generally eliminates the personal liability of directors for monetary
damages for breaches of their fiduciary duty, including breaches involving
negligence or gross negligence in business combinations, unless the director has
breached his or her duty of loyalty, failed to act in good faith, engaged in
intentional misconduct or a knowing violation of law, paid a dividend or
approved a stock repurchase in violation of the DGCL or obtained an improper
personal benefit. This provision does not alter a director's liability under the
federal securities laws. In addition, this provision does not affect the
availability of equitable remedies, such as an injunction or rescission, for
breach of fiduciary duty.
In addition, the Registrant has entered into Indemnification Agreements
with its directors and officers (the "Indemnitees"), pursuant to which the
Registrant has agreed to advance expenses and indemnify such Indemnitees against
certain liabilities incurred in connection with their services as executive
officers and/or directors of the Registrant and in connection with their
services as executive officers and/or directors of DAKA prior to the
consummation of Compass Holdings, Inc.'s tender offer (the "Offer") for all of
the shares of common stock, par value $.01 per share, of DAKA (and, with respect
to the non-employee directors, prior to
2
<PAGE> 4
the consummation of the merger (the "Merger") of Compass Interim, Inc. with and
into DAKA). In the event of a proceeding brought against an Indemnitee by or in
the right of the Registrant or DAKA, such Indemnitee shall not be entitled to
indemnification if such Indemnitee is adjudged to be liable to the Registrant or
DAKA, as the case may be, if applicable law prohibits such indemnification;
provided, however, that, if applicable law so permits, indemnification shall
nevertheless be made by the Registrant in such event if, and only to the extent
that, the Court of Chancery of the State of Delaware, or another court in which
such proceeding shall have been brought or is pending, shall determine.
Under the terms of each Indemnification Agreement, the Registrant shall
advance all reasonable expenses incurred by or on behalf of such Indemnitee in
connection with any proceeding in which Indemnitee is involved by reason of
Indemnitee's service to the Registrant or by reason of Indemnitee's service to
DAKA prior to the consummation of the Offer (and, with respect to the
Independent Directors, prior to the consummation of the Merger) within ten days
after the receipt by the Registrant of a statement from such Indemnitee
requesting such advance. Such statement shall include, among other things, an
undertaking by or on behalf of such Indemnitee to repay any expenses so advanced
if it shall be ultimately determined that such Indemnitee is not entitled to
indemnification against such expenses.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
--------
The following is a complete list of exhibits filed or incorporated by
reference as part of this Registration Statement.
Exhibit
- -------
5.1 Opinion of Goodwin, Procter & Hoar LLP, as to the legality of the
securities being registered.
10.1 Unique Casual Restaurants, Inc. 1997 Stock Purchase Plan.
10.2 Summary Plan Description for the Unique Casual Restaurants, Inc.
1997 Stock Purchase Plan.
23.1 Consent of Deloitte & Touche LLP, Independent Auditors.
23.2 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.3 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1
hereto).
24.1 Powers of Attorney.
Item 9. Undertakings.
------------
(a) The undersigned registrant hereby undertakes:
(1) To file during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing,
3
<PAGE> 5
any increase or decease in volume of securities
offered (if the total dollar value of securities
offered would not exceed that which was registered)
and any deviation from the low or high and of the
estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than
20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the undersigned
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act, and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the Town of Danvers, the Commonwealth of Massachusetts, as of the
30th day of July, 1997.
UNIQUE CASUAL RESTAURANTS, INC.
By: *
-----------------------------------
William H. Baumhauer, Chairman of
the Board, President and Chief
Executive Officer
Signature Capacity Date
--------- -------- ----
* Chairman of the Board, President July 30, 1997
- -------------------------- and Chief Executive Officer
William H. Baumhauer (Principal Executive Officer)
* Director July 30, 1997
- --------------------------
Allen R. Maxwell
* Director July 30, 1997
- --------------------------
Erline Belton
* Director July 30, 1997
- --------------------------
E.L. Cox
* Director July 30, 1997
- --------------------------
Joseph W. O'Donnell
* Director July 30, 1997
- --------------------------
Alan D. Schwartz
* Director July 30, 1997
- --------------------------
Dean P. Vlahos
* Senior Vice President, Treasurer July 30, 1997
- -------------------------- and Chief Financial Officer
Donald C. Moore (Principal Financial and Accounting
Officer)
* By: /s/ Charles W. Redepenning, Jr.
-------------------------------------
Charles W. Redepenning, Jr.
Senior Vice President, Secretary
and General Counsel,
as attorney-in-fact
5
<PAGE> 7
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
10.1 Unique Casual Restaurants, Inc. 1997 Stock Purchase Plan.
10.2 Summary Plan Description for the Unique Casual Restaurants, Inc.
1997 Stock Purchase Plan.
23.1 Consent of Deloitte & Touche LLP, Independent Auditors.
23.2 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.3 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1
hereto).
24.1 Powers of Attorney.
6
<PAGE> 1
EXHIBIT 5.1
July 30, 1997
Unique Casual Restaurants, Inc.
One Corporate Place
55 Ferncroft Road
Danvers, Massachusetts 01923-4001
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
This opinion is furnished in connection with the registration pursuant
to the Securities Act of 1933, as amended (the "Act"), of 400,000 shares (the
"Shares") of common stock, par value $.01 per share (the "Common Stock"), of
Unique Casual Restaurants, Inc. (the "Company") which may be issued pursuant to
the Unique Casual Restaurants, Inc. 1997 Stock Purchase Plan (the "Plan").
We have acted as counsel to the Company in connection with the
registration of the Shares under the Act. We have examined the Plan, the Amended
and Restated Certificate of Incorporation and the Amended and Restated By-laws
of the Company; such records of the corporate proceedings of the Company as we
deemed material; and such other certificates, receipts, records and documents as
we considered necessary for the purposes of this opinion.
We are attorneys admitted to practice in The Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdictions
other than the laws of the United States of America and The Commonwealth of
Massachusetts and the general corporation laws of the State of Delaware.
Based upon the foregoing, we are of the opinion that upon the issuance
and delivery of the Shares, and the receipt of full consideration therefor, in
accordance with the terms of the applicable Registration Statement on Form S-8
and the Plan, the Shares will be legally issued, fully paid and non-assessable
shares of the Company's Common Stock.
The foregoing assumes that all requisite steps will be taken to comply
with the requirements of the Act and applicable requirements of state laws
regulating the offer and sale of securities.
We hereby consent to the filing of this opinion as part of the
above-referenced Registration Statement and to the use of our name therein.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
-------------------------------------
GOODWIN, PROCTER & HOAR LLP
<PAGE> 1
EXHIBIT 10.1
UNIQUE CASUAL RESTAURANTS, INC.
1997 STOCK PURCHASE PLAN
The purpose of the Unique Casual Restaurants, Inc. 1997 Stock Purchase
Plan ("the Plan") is to provide eligible associates of Unique Casual
Restaurants, Inc. (the "Company") and certain of its subsidiaries with
opportunities to purchase shares of the Company's common stock, par value $0.01
per share (the "Common Stock"). Four hundred thousand (400,000) shares of Common
Stock in the aggregate have been approved and reserved for this purpose. The
Plan is intended to constitute an "employee stock purchase plan" within the
meaning of Section 423(b) of the Internal Revenue Code of 1986, as amended (the
"Code"), and shall be interpreted in accordance with that intent.
1. ADMINISTRATION. The Plan will be administered by the person or
persons (the "Administrator") appointed by the Company's Board of Directors (the
"Board") for such purpose. The Administrator has authority to make rules and
regulations for the administration of the Plan, and its interpretations and
decisions with regard thereto shall be final and conclusive. No member of the
Board or individual exercising administrative authority with respect to the Plan
shall be liable for any action or determination made in good faith with respect
to the Plan or any option granted hereunder.
2. OFFERINGS. The Company will make one or more offerings to eligible
associates to purchase Common Stock under the Plan ("Offerings"). Unless
otherwise determined by the Administrator, the initial Offering will begin on
the first business day following the closing of the tender offer by Compass
Holdings, Inc., a Delaware corporation and wholly owned subsidiary of Compass
Group PLC, for all of the outstanding shares of common stock of DAKA
International, Inc. or July 1, 1997, whichever is later, and will end on
September 30,
<PAGE> 2
1997. Thereafter, unless otherwise determined by the Administrator, an Offering
will begin on the first business day occurring on or after each October 1,
January 1, April 1 and July 1 and will end on the last business day occurring on
or before the following December 31, March 31, June 30 and September 30,
respectively. The Administrator may, in its discretion, designate a different
period for any Offering, provided that no Offering shall exceed one year in
duration or overlap any other Offering.
3. ELIGIBILITY. All associates (i.e., employees) of the Company
(including associates who are also directors of the Company) and all associates
of each Designated Subsidiary (as defined in Section 11) are eligible to
participate in any one or more of the Offerings under the Plan, provided that as
of both the first day of the applicable Offering (the "Offering Date") and such
earlier date, not more than fifteen (15) business days prior to the Offering
Date, as shall be established for the Offering, they are customarily employed by
the Company or a Designated Subsidiary for more than twenty (20) hours a week.
Notwithstanding the foregoing, participation in the Plan will neither be
permitted nor be denied contrary to the requirements of the Code.
4. PARTICIPATION. An associate eligible for any Offering may participate
in such Offering by submitting an enrollment form to his appropriate payroll
location at least fifteen (15) business days before the Offering Date (or by
such other deadline as shall be established for the Offering). The form will (a)
state an amount to be deducted from his Compensation (as defined in Section 11)
per pay period, (b) authorize the purchase of Common Stock for him in each
Offering in accordance with the terms of the Plan and (c) specify the exact name
or names in which shares of Common Stock purchased for him are to be issued
pursuant to Section 10.
2
<PAGE> 3
An associate who does not enroll in accordance with these procedures will be
deemed to have waived his right to participate. Unless an associate files a new
enrollment form or withdraws from the Plan, his deductions and purchases will
continue at the same amount of Compensation for future Offerings, provided he
remains eligible. Notwithstanding the foregoing, participation in the Plan will
neither be permitted nor be denied contrary to the requirements of the Code.
5. ASSOCIATE CONTRIBUTIONS. Each eligible associate may authorize
payroll deductions at a minimum of ten dollars ($10.00) per week up to a maximum
of fifty percent (50%) of his Compensation for each pay period. The Company will
maintain book accounts showing the amount of payroll deductions made by each
participating associate for each Offering. No interest will accrue or be paid on
payroll deductions.
6. DEDUCTION CHANGES. Except as may be determined by the Administrator
in advance of an Offering, an associate may not increase or decrease his payroll
deduction during any Offering, but may increase or decrease his payroll
deduction with respect to the next Offering (subject to the limitations of
Section 5) by filing a new enrollment form at least fifteen (15) business days
before the next Offering Date (or by such other deadline as shall be established
for the Offering). The Administrator may, in advance of any Offering, establish
rules permitting an associate to increase, decrease or terminate his payroll
deduction during an Offering.
7. WITHDRAWAL. An associate may withdraw from participation in the Plan
by delivering a written notice of withdrawal to his appropriate payroll
location. If received at least fifteen (15) business days before the last day of
an Offering (or by such other deadline as
3
<PAGE> 4
shall be established in advance of the Offering), the associate's withdrawal
will be effective as of the next business day; if received after such deadline,
the associate's withdrawal will be effective on the first day of the next
Offering. Following an associate's withdrawal, the Company will promptly refund
to him his entire account balance under the Plan (after payment for any Common
Stock purchased before the effective date of withdrawal). Partial withdrawals
are not permitted. The associate may not begin participation again during the
remainder of the Offering, but may enroll in a subsequent Offering in accordance
with Section 4.
8. GRANT OF OPTIONS. On each Offering Date, the Company will grant to
each eligible associate who has not previously waived his right to participate
in such Offering an option ("Option") to purchase on the last day of such
Offering (the "Exercise Date"), at the Option Price hereinafter provided for, a
maximum of one thousand (1,000) shares of Common Stock reserved for the purposes
of the Plan, or such other maximum number of shares as shall have been
established by the Administrator in advance of the Offering. The purchase price
for each share purchased under such Option (the "Option Price") will be a
certain percentage of the Fair Market Value of the Common Stock on the Offering
Date or the Exercise Date, whichever is less. Such percentage will be determined
by the Board in advance of such Offering Date and will be between 85% and 100%
of the Fair Market Value of the Common Stock, inclusive.
Notwithstanding the foregoing, no associate may be granted an option
hereunder if such associate, immediately after the option was granted, would be
treated as owning stock possessing five percent (5%) or more of the total
combined voting power or value of all classes of stock of the Company or any
Parent or Subsidiary (as defined in Section 11). For purposes
4
<PAGE> 5
of the preceding sentence, the attribution rules of Section 424(d) of the Code
shall apply in determining the stock ownership of an associate, and all stock
which the associate has a contractual right to purchase shall be treated as
stock owned by the associate. In addition, no associate may be granted an Option
which permits his rights to purchase stock under the Plan, and any other
employee stock purchase plan of the Company and its Parents and Subsidiaries, to
accrue at a rate which exceeds $25,000 of the fair market value of such stock
(determined on the option grant date or dates) for each calendar year in which
the Option is outstanding at any time. The purpose of the limitation in the
preceding sentence is to comply with Section 423(b)(8) of the Code.
9. EXERCISE OF OPTION AND PURCHASE OF SHARES. Each associate who
continues to be a participant in the Plan on the Exercise Date shall be deemed
to have exercised his Option on such date and shall acquire from the Company
such number of whole shares of Common Stock reserved for the purpose of the Plan
as his accumulated payroll deductions on such date will purchase at the Option
Price, subject to any other limitations contained in the Plan. Except as
otherwise determined by the Administrator in advance of an Offering, any amount
remaining in an associate's account at the end of an Offering solely by reason
of the inability to purchase a fractional share will be carried forward to the
next Offering; any other balance remaining in an associate's account at the end
of an Offering will be refunded to the associate promptly.
10. ISSUANCE OF CERTIFICATES. Certificates representing shares of Common
Stock purchased under the Plan may be issued only in the name of the associate,
in the name of the associate and another person of legal age as joint tenants
with rights of survivorship, or in the name of a broker authorized by the
associate to be his, or their, nominee for such purpose.
5
<PAGE> 6
11. Definitions.
-----------
The term "Compensation" means the amount of base pay, prior to salary
reduction pursuant to either Section 125 or 401(k) of the Code, but excluding
overtime, commissions, incentive or bonus awards, allowances and reimbursements
for expenses such as relocation allowances or travel expenses, income or gains
on the exercise of Company stock options, and similar items.
The term "Designated Subsidiary" means any present or future Subsidiary
(as defined below) that has been designated by the Board to participate in the
Plan. The Board may so designate any Subsidiary, or revoke any such designation,
at any time and from time to time, either before or after the Plan is approved
by the stockholders.
The term "Fair Market Value of the Common Stock" means (i) if the Common
Stock is admitted to trading on a national securities exchange or the Nasdaq
National Market, the closing price reported for the Common Stock on such
exchange or system for such date or, if no sales were reported for such date,
for the next preceding date for which a sale was reported, or (ii) if clause (i)
does not apply but the Common Stock is admitted to quotation on the National
Association of Securities Dealers Automated Quotation System ("NASDAQ"), the
average of the highest bid and lowest asked prices reported for the Common Stock
on NASDAQ for such date or, if no bid and asked prices were reported for such
date, for the next preceding date for which such prices were reported.
The term "Parent" means a "parent corporation" with respect to the
Company, as defined in Section 424(e) of the Code.
6
<PAGE> 7
The term "Subsidiary" means a "subsidiary corporation" with respect to
the Company, as defined in Section 424(f) of the Code.
12. RIGHTS ON TERMINATION OF EMPLOYMENT. If a participant's employment
terminates for any reason before the Exercise Date for any Offering, no payroll
deduction will be taken from any pay due and owing to the participant and the
balance in his account will be paid to him as if he had withdrawn from the Plan
under Section 7. An associate will be deemed to have terminated employment, for
this purpose, if the corporation that employs him, having been a Designated
Subsidiary, ceases to be a Subsidiary, or if the associate is transferred to any
corporation other than the Company or a Designated Subsidiary.
13. SPECIAL RULES. Notwithstanding anything herein to the contrary, the
Administrator may adopt special rules applicable to the associates of a
particular Designated Subsidiary, whenever the Administrator determines that
such rules are necessary or appropriate for the implementation of the Plan in a
jurisdiction where such Designated Subsidiary has associates; provided that such
rules are consistent with the requirements of Section 423(b) of the Code. Such
special rules may include (by way of example, but not by way of limitation) the
establishment of a method for associates of a given Designated Subsidiary to
fund the purchase of shares other than by payroll deduction, if the payroll
deduction method is prohibited by local law or is otherwise impracticable. Any
special rules established pursuant to this Section 13 shall, to the extent
possible, result in the associates subject to such rules having substantially
the same rights as other participants in the Plan.
14. OPTIONEES NOT STOCKHOLDERS. Neither the granting of an Option to an
associate nor the deductions from his pay shall constitute such associate a
holder of the shares of
7
<PAGE> 8
Common Stock covered by an Option under the Plan until such shares have been
purchased by and issued to him.
15. RIGHTS NOT TRANSFERABLE. Rights under the Plan are not transferable
by a participant other than by will or the laws of descent and distribution, and
are exercisable during the associate's lifetime only by the associate.
16. APPLICATION OF FUNDS. All funds received or held by or on behalf of
the Company under the Plan may be combined with other corporate funds and may be
used for any corporate purpose.
17. ADJUSTMENT IN CASE OF CHANGES AFFECTING COMMON STOCK. In the event
of a subdivision of outstanding shares of Common Stock, or the payment of a
dividend in Common Stock, the number of shares approved for the Plan, and the
share limitation set forth in Section 8, shall be increased proportionately, and
such other adjustment shall be made as may be deemed equitable by the
Administrator. In the event of any other change affecting the Common Stock, such
adjustment shall be made as may be deemed equitable by the Administrator to give
proper effect to such event.
18. AMENDMENT OF THE PLAN. The Board may at any time, and from time to
time, amend the Plan in any respect, except that without the approval, within
twelve (12) months of such Board action, by the holders of a majority of the
shares of stock of the Company present or represented and entitled to vote at a
meeting of stockholders, no amendment shall be made increasing the number of
shares approved for the Plan or making any other change that would require
stockholder approval in order for the Plan, as amended, to qualify as an
"employee stock purchase plan" under Section 423(b) of the Code.
8
<PAGE> 9
19. INSUFFICIENT SHARES. If the total number of shares of Common Stock
that would otherwise be purchased on any Exercise Date plus the number of shares
purchased under previous Offerings under the Plan exceeds the maximum number of
shares issuable under the Plan, the shares then available shall be apportioned
among participants in proportion to the amount of payroll deductions accumulated
on behalf of each participant that would otherwise be used to purchase Common
Stock on such Exercise Date.
20. TERMINATION OF THE PLAN. The Plan may be terminated at any time by
the Board. Upon termination of the Plan, all amounts in the accounts of
participants shall be promptly refunded.
21. GOVERNMENTAL REGULATIONS. The Company's obligation to sell and
deliver Common Stock under the Plan is subject to obtaining all governmental
approvals required in connection with the authorization, issuance, or sale of
such stock.
The Plan shall be governed by the law of the Commonwealth of
Massachusetts except to the extent that such law is preempted by federal law.
22. ISSUANCE OF SHARES. Shares may be issued upon exercise of an Option
from authorized but unissued Common Stock, from shares held in the treasury of
the Company, or from any other proper source.
23. TAX WITHHOLDING. Participation in the Plan is subject to any
required tax withholding on income of the participant in connection with the
Plan. Each associate agrees, by entering the Plan, that the Company and its
Subsidiaries shall have the right to deduct any such taxes from any payment of
any kind otherwise due to the associate, including shares issuable under the
Plan.
9
<PAGE> 10
24. NOTIFICATION UPON SALE OF SHARES. Each associate agrees, by entering
the Plan, to give the Company prompt notice of any disposition of shares
purchased under the Plan where such disposition occurs within two years after
the date of grant of the Option pursuant to which such shares were purchased.
25. EFFECTIVE DATE AND APPROVAL OF SHAREHOLDERS. The Plan shall take
effect on the later of the date it is adopted by the Board or the date it is
approved by the holders of a majority of the shares of stock of the Company
present or represented and entitled to vote at a meeting of stockholders, which
approval must occur within twelve (12) months of the adoption of the Plan by the
Board.
10
<PAGE> 1
EXHIBIT 10.2
SUMMARY PLAN DESCRIPTION
FOR THE
UNIQUE CASUAL RESTAURANTS, INC.
1997 STOCK PURCHASE PLAN
July 1997
<PAGE> 2
SUMMARY PLAN DESCRIPTION
The purpose of this Summary Plan Description is to summarize the
provisions of the Unique Casual Restaurants, Inc. 1997 Stock Purchase Plan (the
"Plan"). This document contains important information and you should take the
time to read it thoroughly. If you have any questions after you have read it,
please contact the Company's Compensation Manager, Craig Kams, at
(508) 774-6606. You should keep a copy of this Summary Plan Description to
answer questions you may have in the future.
This Summary Plan Description is provided for your convenience and is
not intended to explain every detail of the Plan. In the event the Summary Plan
Description conflicts with the Plan, the Plan will control. All employees are
encouraged to review the more comprehensive Plan Information Statement
distributed with this summary.
INTRODUCTION
Unique Casual Restaurants, Inc. (the "Company") has adopted the Unique
Casual Restaurants, Inc. 1997 Stock Purchase Plan (the "Plan") for the purpose
of providing eligible employees of the Company and its designated subsidiaries
with an opportunity to purchase shares of common stock of the Company ("Shares"
or "Common Stock") through payroll deduction.
It is important to understand that prices of the Shares can fluctuate.
If the Company experiences growth in profitability, which we are all working
toward, then the Shares may increase in value. However, there can be various
factors that can affect the value of the Shares and a decline in value is always
possible. As with any stock, the value of the Shares can go up
<PAGE> 3
or down depending on market conditions. Participation in the Plan is completely
voluntary, and only you can decide for yourself if it is right for you.
QUESTIONS AND ANSWERS
WHO IS ELIGIBLE TO PARTICIPATE IN THE PLAN?
As an employee of the Company or a Designated Subsidiary (as defined in
the Plan), you are eligible to participate in the Plan on a voluntary basis if
you are a full-time employee on the first day of any plan contribution period.
For this purpose, you are considered full-time if you are regularly scheduled to
work more than 20 hours a week.
WHEN DOES THE PLAN BEGIN?
The Plan will begin on the first business day following the closing of
the tender offer by Compass Holdings, Inc., a Delaware corporation and wholly
owned subsidiary of Compass Group PLC, for all of the outstanding shares of
common stock of DAKA International, Inc. or July 1, 1997, whichever is later.
WHAT IS A CONTRIBUTION PERIOD?
A "contribution period" is a period during which you can set aside funds
through payroll deduction towards the purchase of Shares on the last day of the
period. The first contribution period will begin on the date determined in
accordance with the answer to the foregoing question and will end on September
30, 1997. Thereafter, contribution periods generally will begin on the first
business day occurring on or after each October 1, January 1, April 1 and July 1
and end on
2
<PAGE> 4
the last business day occurring on or before the following December 31, March
31, June 30 and September 30, respectively. The Company, however, may establish
different contribution periods.
HOW DO I JOIN THE PLAN?
If you satisfy the eligibility requirements discussed above and want to
join the Plan, you should submit an enrollment form to the Compensation
Department at corporate headquarters specifying the percentage of your base
compensation you want deducted from your paycheck each pay period. The amount
you elect to contribute will be recorded in a separate bookkeeping account for
you for the purpose of purchasing Shares at the end of each contribution period.
Your completed form must be received at least 15 business days before the first
day of the contribution period in which you wish to participate unless a
different deadline has been established for that period.
HOW DO I PURCHASE SHARES?
On the first day of each contribution period, the Company will grant to
each participant an option to purchase Shares at the Option Price for that
contribution period. The Option Price will be a predetermined percentage
(between 85% and 100%) of the closing price of the Common Stock on the Nasdaq
National Market on the first or last day of the contribution period, whichever
price is less. For the initial contribution period, the applicable percentage is
85%. If you continue to be employed on the last day of the contribution period,
the amount of your payroll deductions will be used to purchase whole Shares at
the Option Price directly from the Company, up to the
3
<PAGE> 5
maximum number covered by your option. The maximum number of Shares which you
may purchase in the initial contribution period is 1,000 Shares. In subsequent
contribution periods, the maximum will generally be 1,000 Shares, although the
Company may establish a different maximum. At the end of each contribution
period, any unused payroll deductions remaining solely by reason of your
inability to purchase a fractional share will be carried forward to the next
contribution period. Any other unused payroll deductions will be promptly
refunded to you.
Example A:
- ----------
John Jones joins the Plan on July 1, 1998. Let's assume that the
closing price of the Shares on July 1, 1998 is $10. John is granted an Option
to buy a maximum of 1,000 Shares. John elects to contribute 10% of his base
compensation. John earns $10,000 during the three-month period and on September
30, 1998 has $1,000 in his account. On that day, the closing price of the
Shares is $12. The Option Price for this contribution period is to be 90% of
the closing price on July 1 or September 30, whichever is less. Therefore, the
Option Price is $9. On September 30, 1998, John will purchase 111 Shares for
$999. The balance in his account of $1, which represents the value of a
fractional share, will be carried forward to the next contribution period.
Example B:
- ----------
Let's use the same facts as in Example A. However, let's assume the
closing price of the Shares on September 30, 1998 is $8. The Option Price
therefore becomes $7.20 (i.e., $8 X .90). On September 30, 1998, John will
purchase 138 Shares for $993.60. The balance in his account of $6.40, which
represents the value of a fractional share, will be carried forward to the next
contribution period.
4
<PAGE> 6
IS THERE A MAXIMUM OR MINIMUM INVESTMENT REQUIRED IN ORDER TO PARTICIPATE IN THE
PLAN?
You may authorize payroll deductions up to a maximum of 50% of your base
compensation for each pay period in the contribution period. The minimum
deduction is $10 per week. You may select any whole percentage such that your
payroll deduction is at least $10 per week, but not more than 50% of your
compensation for the pay period.
CAN I CHANGE THE PERCENTAGE OF MY PAYROLL DEDUCTION?
During the contribution period, you may not increase your payroll
deduction. You generally may not decrease your payroll deduction during a
contribution period, but you may terminate your payroll deduction for the
remainder of the contribution period, either with or without withdrawing from
the Plan (as described below). To terminate your payroll deduction without
withdrawing from the Plan, you must submit written notice at least 15 business
days before the payroll date on which the change becomes effective (or by such
other deadline as may be established). You may either increase or decrease your
payroll deduction for the next contribution period (within the above limits) by
filing a new enrollment form at least 15 business days before the first day of
the next contribution period (or by such other deadline as may be established).
If you have terminated your payroll deduction during a contribution period, you
must submit a new enrollment form in order to participate in a subsequent
contribution period. All forms must be submitted to the Compensation Department
at corporate headquarters. Unless you file a new form, your payroll deduction
will continue at the same percentage of total cash compensation for as long as
the Plan remains in effect.
5
<PAGE> 7
CAN I WITHDRAW FROM THE PLAN?
You can discontinue your payroll deductions and decide not to purchase
any Shares by submitting a written notice of withdrawal to the Compensation
Department at corporate headquarters at least 15 business days before the last
day of a contribution period (or by such other deadline as may be established).
Upon withdrawal, your enrollment will be canceled; no further payroll deductions
will be made, and no Shares will be purchased on your behalf. The entire balance
of your contributions will be refunded to you after the contribution period
ends. To re-enter the Plan, you must submit a new enrollment form at least 15
business days before the next contribution period in which you wish to
participate (or by such other deadline as may be established). If your notice of
withdrawal is received after the deadline for a given contribution period but
before the first day of the next contribution period, your withdrawal will be
effective on the first day of the next contribution period.
WHAT IF I WISH TO DO A PARTIAL WITHDRAWAL?
The Plan does not permit partial withdrawal of your contributions.
IS THERE ANY INTEREST CREDITED TO MY CONTRIBUTIONS DURING THE CONTRIBUTION
PERIOD?
No interest is credited to your contributions during the contribution
period.
WHAT HAPPENS IF I LEAVE THE COMPANY?
Your rights to purchase shares under the Plan will terminate when you
cease to be an employee of the Company or a Designated Subsidiary because of
retirement, resignation, lay-off,
6
<PAGE> 8
discharge, transfer to a subsidiary other than a Designated Subsidiary, death,
change of status, or for any other reason. All payroll deductions not used to
purchase Shares on or before the date of your termination will be promptly
refunded to you.
MAY I TRANSFER OR ASSIGN MY RIGHTS UNDER THE PLAN?
No. Any option granted to you may only be exercised by you. Shares will
automatically be issued in your name, unless you specify on the enrollment form
that Shares are to be issued in your name and in the name of another person of
legal age as joint tenants with rights of survivorship. You may also designate a
beneficiary to receive your account balance if you die.
HOW WILL I KNOW THE AMOUNT CREDITED TO MY ACCOUNT AND THE NUMBER OF SHARES
PURCHASED ON MY BEHALF?
The Company will maintain a separate bookkeeping account for each
participant. As soon as practicable after the end of each contribution period,
the Company will issue to each participant a statement showing the total amount
of payroll deductions of that participant during the contribution period and the
total number of Shares purchased under the Plan by that participant at the end
of the contribution period. A stock certificate will also be issued upon request
to each participant who purchases Shares through the Plan; a fee will be charged
for the issuance of a stock certificate.
ARE MY PAYROLL DEDUCTIONS MADE ON A PRE-TAX BASIS?
No. Your payroll deductions are made on an after-tax basis. The Company
will withhold
7
<PAGE> 9
taxes with respect to such amounts.
WHEN CAN I SELL THE SHARES?
You can generally sell the Shares at any time after your purchase,
subject to the Company's general policy regarding trading by employees in its
securities. The federal securities laws, however, prohibit trading by any
person, including any employee, who has material non-public information about
the Company.
In all cases, if you sell any Shares within two years of the first day
of the contribution period in which you purchased such Shares (the "two-year
holding period"), you must notify the Company of the sale.
WHAT ARE THE U.S. FEDERAL INCOME TAX CONSEQUENCES TO ME IF I SELL THE SHARES?
The following summary applies only to U.S. employees who are not
subject to any foreign tax laws and describes the tax laws as in effect in July
1997. It describes only the basic tax rules applicable to employees who sell
their Shares. The tax laws are subject to change and, in any event, special
rules may apply in particular situations.
The federal income tax consequences vary depending upon whether you sell
the Shares during the two-year holding period or after such period.
If you sell the Shares after the two-year holding period, no taxable
income results if the proceeds of the sale are equal to or less than the price
you paid for the Shares. If the sale proceeds are higher than your purchase
price, you will recognize ordinary income in an amount equal to the lesser of
(i) the excess of the sales proceeds over your actual purchase price, and (ii)
the excess of the fair market value of the Shares on the date of the option
grant (i.e., the first day of the
8
<PAGE> 10
contribution period) over the initial purchase price, determined solely by
reference to the closing price of the Shares on the date of the option grant.
If you sell the Shares during the two-year holding period, you will
recognize ordinary income in an amount equal to the excess of the closing price
of the Shares on the date of purchase (i.e., the last day of the contribution
period) over the amount you paid for the Shares. This amount is reportable as
ordinary income, even if no profit was realized on the sale or the Shares were
sold at a loss.
In either case, you may also recognize a capital gain or loss in an
amount equal to the difference between the sales proceeds and your basis in the
Shares (i.e., your original cost plus the amount taxed to you as ordinary
income). The capital gain or loss will be either short-term or long-term,
depending on whether you held the Shares for more than a year. Example A:
On July 1, 1998, John Jones receives an option to buy a maximum of 1,000
Shares. Let's assume that the closing price of the Shares on that date is $10.
On September 30, 1998, John purchases 111 Shares for $999, at the option price
of $9. On that date, the closing price of the Shares is $12.
Sale after the two-year holding period
--------------------------------------
On July 2, 2000, John Jones sells the 111 Shares for $14 per Share, for
a total of $1,554. John is required to report $111 [i.e., 111 X ($10 - $9)] as
ordinary income and $444 [i.e., $1,554 - ($999 + $111)] as long-term capital
gain.
9
<PAGE> 11
Sale during the two-year holding period
---------------------------------------
If John sells the Shares before July 2, 2000 for $14 per Share, he is
required to report $333 [i.e., 111 X ($12 - $9)] as ordinary income and $222
[i.e., $1,554 - ($999 + $333)] as either short-term capital gain (if the sale is
before October 1, 1999) or long-term capital gain (if the sale is after
September 30, 1999). Example B:
Let's use the same facts as in Example A, but let's assume that John
sells the Shares at a loss.
Sale after the two-year holding period
--------------------------------------
On July 2, 2000, John Jones sells the 111 Shares for $7 per Share, for a
total of $777. John has no ordinary income and reports $222 (i.e., $999 - $777)
as long-term capital loss.
Sale during the two-year holding period
---------------------------------------
If John sells the Shares before July 2, 2000 for $7 per Share, he is
required to report $333 [i.e., 111 X ($12 - $9)] as ordinary income and $555
[i.e., ($999 + $333) - $777] as either short-term or long-term capital loss.
WHO WILL ADMINISTER THE PLAN?
The Company's Senior Vice President and General Counsel, Charles W.
Redepenning, Jr., will administer the Plan. For more information about the Plan,
call Craig Kams at (508) 774-6606.
10
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Unique Casual Restaurants, Inc. on Form S-8 of our report dated July 14, 1997
(which refers to a report of other auditors with respect to the consolidated
financial statements of Champps Entertainment, Inc. included in the Company's
combined financial statements as of July 1, 1995 and the years ended July 1,
1995 and July 2, 1994 and includes an explanatory paragraph with respect to the
Company's adoption during the year ended June 29, 1996, of Statement of
Financial Accounting Standards No. 121, "Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to Be Disposed Of"), appearing in
Amendment No. 4 to Registration Statement No. 0-22639 on Form 10 of Unique
Casual Restaurants, Inc.
/s/ Deloitte & Touche LLP
Boston, Massachusetts
July 30, 1997
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8, related to Unique Casual
Restaurants, Inc.'s 1997 Stock Purchase Plan, of our report dated April 5, 1996
on the consolidated financial statements of Champps Entertainment, Inc.
included in Unique Casual Restaurants, Inc.'s Form 10, as amended, and to all
references to our firm included in this Registration Statement.
It should be noted we have performed no audit procedures subsequent to April 5,
1996, the date of our report. Furthermore, we have not audited any financial
statements of Champps Entertainment, Inc. as of any date or for any period
subsequent to July 2, 1995.
/s/ Arthur Andersen LLP
Minneapolis, Minnesota,
July 30, 1997
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints each of William H. Baumhauer and
Charles W. Redepenning, Jr. acting together or singularly, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him in his name, place and stead, in any and all capacities, (i) to sign a
Registration Statement on Form S-8 under the Securities Act of 1933, as amended
(the "Securities Act"), relating to the shares issuable pursuant to the Unique
Casual Restaurants, Inc. 1997 Stock Purchase Plan and (ii) to sign any and all
amendments (including post-effective amendments) to such Registration Statement,
and (iii) to file the same, with all exhibits thereto and other documents in
connection therewith, with the Commission under the Securities Act. The
undersigned hereby ratifies and confirms all that such attorney-in-fact or his
substitute may lawfully do or cause to be done by virtue hereof.
Signature Capacity Date
--------- -------- ----
/s/ William H. Baumhauer Chairman of the Board, President July 30, 1997
- --------------------------- and Chief Executive Officer
William H. Baumhauer (Principal Executive Officer)
/s/ Allen R. Maxwell Director July 30, 1997
- ---------------------------
Allen R. Maxwell
/s/ Erline Belton Director July 30, 1997
- ---------------------------
Erline Belton
/s/ E.L. Cox Director July 30, 1997
- ---------------------------
E.L. Cox
/s/ Joseph W. O'Donnell Director July 30, 1997
- ---------------------------
Joseph W. O'Donnell
/s/ Alan D. Schwartz Director July 30, 1997
- ---------------------------
Alan D. Schwartz
/s/ Dean P. Vlahos Director July 30, 1997
- ---------------------------
Dean P. Vlahos
/s/ Donald C. Moore Senior Vice President, Treasurer July 30, 1997
- --------------------------- and Chief Financial Officer
Donald C. Moore (Principal Financial and Accounting
Officer)
