As filed with the Securities and Exchange
Commission on September 6, 1995
Registration Statement No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________________
DAKA INTERNATIONAL, INC.
(Exact name of Registrant as specified in its charter)
Delaware 04-3024178
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
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)
_______________________________
William H. Baumhauer
Chairman and Chief Executive Officer
DAKA International, 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 Registrant's agent for service)
With copies to:
Ettore A. Santucci, P.C. Charles W. Redepenning, Jr
Goodwin, Procter & Hoar DAKA International, Inc.
Exchange Place One Corporate Place
Boston, MA 02109 55 Ferncroft Road
Danvers, MA 01923-4001
_____________________________
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following
box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same
offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
Title of Securities Being Registered: Common Stock, par value $.01 per share
Amount to be Registered: 1,332,847
Proposed Maximum Offering Price Per Share(1): $26.69
Proposed Maximum Aggregate Offering Price(1): $35,573,686
Amount of Registration Fee: $12,268
(1) Based upon the average of the high and low sale prices reported on the
Nasdaq National Market on September 5,1995 and estimated solely for the
purpose of calculating the registration fee in accordance with Rule 457
of the Securities Act of 1933.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933, as amended, or until the
Registration Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
<PAGE>
PRELIMINARY PROSPECTUS DATED SEPTEMBER 6, 1995
SUBJECT TO COMPLETION
PROSPECTUS
1,332,847 Shares
DAKA International, Inc.
Common Stock
_____________________________
This Prospectus relates to the offering and sale (the "Offering") of
up to 1,332,847 shares of common stock, $.01 par value per share (the
"Common Stock"), of DAKA International, Inc. ("DAKA" or the "Company") to be
held by certain stockholders of the Company (the "Selling Stockholders")
upon the election of such Selling Stockholders to convert certain shares of
Series A Preferred Stock, $.01 par value per share (the "Preferred Stock"),
of the Company into shares of Common Stock. See "Plan of Distribution" and
"Selling Stockholders." The registration of the shares of Common Stock
offered hereby does not necessarily mean that the Selling Stockholders will
elect to convert all or any of their shares of Preferred Stock or that,
upon such conversion, any shares of Common Stock will be offered or sold
by the Selling Stockholders.
The Company has been advised by each of the Selling Stockholders that
each Selling Stockholder, acting as principal for its own account, directly,
through agents designated from time to time, or through dealers or
underwriters also to be designated, may sell all or a portion of the Common
Stock offered hereby from time to time on terms to be determined at the time
of sale. To the extent required, the specific shares of Common Stock to be
sold, the names of the Selling Stockholders, the respective purchase prices
and the public offering prices, the names of any such agent, dealer or
underwriter, and any applicable commissions or discounts with respect to a
particular offer will be set forth in an accompanying Prospectus Supplement
or, if appropriate, a post-effective amendment to the Registration Statement
of which this Prospectus is a part. See "Plan of Distribution." Each of
the Selling Stockholders reserves the sole right to accept and, together
with their respective agents from time to time, to reject, in whole or in
part, any proposed purchase of shares of Common Stock to be made directly
or through agents.
The aggregate proceeds to the Selling Stockholders from the sale of
the Common Stock offered hereby will be the purchase price of the Common
Stock sold less the aggregate agents' commissions and underwriters'
discount, if any, and other expenses of issuance and distribution not borne
by the Company. The Company will pay all of the expenses of the Offering
other than brokerage or underwriting commissions. See "Registration Rights"
and "Plan of Distribution" for indemnification arrangements between the
Company and the Selling Stockholders. The Company will not receive any
proceeds from the sale of the Common Stock offered hereby by the Selling
Stockholders.
The Common Stock is traded over-the-counter and is quoted on the
Nasdaq National Market ("NASDAQ") under the symbol "DKAI."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
___________________
The date of this Prospectus is _________, 1995.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "SEC" or the "Commission"). Such
reports, proxy statements and other information can be inspected and copied
at the public reference facilities maintained by the Commission at
450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at the
Commission's Regional Offices at 7 World Trade Center, 13th Floor, New York,
New York 10048, and Northwestern Atrium Center, 500 W. Madison Street,
Suite 1400, Chicago, Illinois 60661-2511. Copies of such materials can be
obtained upon written request from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, at
prescribed rates.
The Company has filed with the Commission a Registration Statement on
Form S-3 under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Common Stock. This Prospectus, which constitutes a part
of the Registration Statement, does not contain all of the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. The
Registration Statement, including exhibits thereto, may be inspected and
copied at the locations described above. Statements contained in this
Prospectus as to the contents of any contract or other document referred to
are not necessarily complete, and in each instance reference is made to
the copy of such contract or other document filed as an exhibit to the
Registration Statement, each such statement being qualified in all respects
by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the
Commission pursuant to the Exchange Act are incorporated in this Prospectus
by reference: (i) the Company's Annual Report on Form 10-K for the fiscal
year ended July 1, 1995 (File No. 0-17229) as filed on September 1, 1995,
and (ii) the description of the Company's Common Stock contained in its
Registration Statement on Form S-4 (No. 33-24819) as filed on October 7,
1988 and amended by Amendment No. 1, filed on October 13, 1988.
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus
and prior to the filing of a post-effective amendment hereto that indicates
that all securities offered hereunder have been sold or that deregisters
all such securities then remaining unsold shall be deemed to be incorporated
by reference in this Prospectus and to be a part hereof from the date of
filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein (or in an applicable Prospectus Supplement) or in any
subsequently filed document that is incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed to constitute a part of this Prospectus or
any Prospectus Supplement, except as so modified or superseded.
The Company will provide, without charge, to each person, including
any owner of Common Stock, to whom a copy of this Prospectus is delivered,
at the written or oral request of such person, a copy of any or all of the
documents incorporated herein by reference (other than exhibits thereto,
unless such exhibits are specifically incorporated by reference into such
documents). Requests for such copies should be directed to
Michael A. Woodhouse, Chief Financial Officer, DAKA International, Inc.,
One Corporate Place, 55 Ferncroft Road, Danvers, Massachusetts 01923-4001,
telephone (508) 774-9115.
<PAGE>
THE COMPANY
DAKA was formed in 1988 in connection with the merger of Daka, Inc.
("Daka") and Fuddruckers, Inc. ("Fuddruckers"), and is a diversified
foodservice and restaurant company operating in the contract foodservice
management industry and in the restaurant industry. Daka provides
restaurant-style contract foodservice management at a variety of schools
and colleges, corporate offices, factories, healthcare facilities, museums
and government offices. Fuddruckers owns, operates and franchises
Fuddruckers restaurants, which specialize in moderately-priced, casual
dining for families and adults. In 1994, the Company acquired a 57%
voting interest in Americana Dining Corporation ("ADC"), a newly formed
company which acquired two restaurants operated under the name "Champps
Sports Cafe" pursuant to a license from Champps Entertainment, Inc.,
licensor and franchisor of Champps restaurants. ADC has the exclusive
rights to develop Champps restaurants in Ohio, Florida and seven Illinois
counties.
Founded in 1973, Daka is one of the 10 largest contract foodservice
management companies in the United States. Operating under the name
"Daka Restaurants," Daka seeks to provide a retail restaurant atmosphere
for its guests by operating, among other things, a variety of branded
concepts such as Taco Bell, Burger King, Pizza Hut and Dunkin' Donuts
pursuant to licensing arrangements, as well as its own signature concepts
within its foodservice operations. In July 1993, Daka acquired the
majority of the assets and foodservice contracts comprising Service
America Corporation's educational foodservice business. The acquired
business provides contract foodservice to a variety of colleges and
universities, and to public and private elementary and secondary
schools, many of which are located in geographic areas where Daka had a
significant presence. In February 1995, Daka, through a newly formed 80%
owned limited partnership, Daka Restaurants, L.P., acquired certain
educational foodservice and corporate dining contracts from ServiceMaster
Management Services L.P. The acquired contracts expanded Daka's
geographic presence into the western United States and strengthened its
existing presence in the midwest.
Fuddruckers restaurants, with an average check of approximately $6.15
and a "Kids Eat Free" program after 4 PM on Monday through Thursday,
are designed to appeal to both families and adults seeking value in
a casual dining atmosphere. The menu prominently features Fuddruckers'
signature hamburgers, which are cooked to order and served on buns baked
daily "from scratch" at each restaurant. The Fuddruckers restaurant
decor features an open grill area, a glassed-in butcher shop and meat
display case, an open bakery and a colorful display island of fresh produce
and a variety of condiments, sauces and melted cheeses from which guests may
garnish their own meals. Fuddruckers opened its first restaurant in 1980
in San Antonio, Texas and as of July 1, 1995, has expanded its operations
to include 98 Fuddruckers-owned and 70 franchised restaurants located
throughout the United States and in Canada, the Middle East and Australia.
In 1995, Fuddruckers opened 22 Fuddruckers-owned restaurants and 9
franchised restaurants. In 1996, Fuddruckers plans to open 30 domestic
Fuddruckers-owned and 20 franchised restaurants of which up to 5 will be
opened in foreign countries.
The Company's principal executive offices are located at
One Corporate Place, 55 Ferncroft Road, Danvers, Massachusetts 01923-4001,
and its telephone number is (508) 774-9115.
REGISTRATION RIGHTS
The registration of the shares of Common Stock pursuant to the
Registration Statement of which this Prospectus is a part will discharge
certain of the Company's obligations under the terms of a Registration
Rights Agreement dated as of January 17, 1992 with the holders of the
Preferred Stock (the "Registration Rights Agreement").
Pursuant to the Registration Rights Agreement, the Company has agreed
to pay all expenses of effecting the registration of such shares of Common
Stock (other than brokerage and underwriting commissions). The Company
also has agreed to indemnify each Selling Stockholder under the Registration
Rights Agreement and its officers, directors and other affiliated persons
and any person who controls any Selling Stockholder against all losses,
claims, damages and expenses arising under the securities laws in
connection with the Registration Statement or this Prospectus or any
amendment or supplement thereto or hereto, subject to certain limitations.
In addition, the Selling Stockholders under the Registration Rights
Agreement agreed to indemnify the Company and its directors, officers and
any person who controls the Company against any losses, claims, damages and
expenses arising under the securities laws in connection with the
Registration Statement or this Prospectus or any amendment or supplement
thereto or hereto, but only to the extent such loss, claim, damage or
expense relates to written information furnished to the Company by such
Selling Stockholder expressly for use in the Registration Statement or
this Prospectus or any amendment or supplement thereto or hereto.
<PAGE>
SELLING STOCKHOLDERS
The following table sets forth certain information with respect to the
Selling Stockholders, including the number of shares of Common Stock
beneficially owned by each Selling Stockholder as of the date of this
Prospectus, the percentage of shares of voting stock outstanding held
by each and the number of shares of Common Stock offered hereby, assuming
conversion of all shares of Preferred Stock held by each. There can
be no assurance that all or any of the shares offered hereby will be sold.
<TABLE>
<CAPTION>
Percentage Percentage of
Number of Shares of Shares Number of Number of Shares Shares of
of Common Stock of Voting Stock Shares of of Common Stock Voting Stock
Beneficially Held Outstanding Prior Common Stock Beneficially Held Outstanding After
Selling Stockholder Prior to the Offering(1) to the Offering (2) Stock Offered After the Offering the Offering
<S> <C> <C> <C> <C> <C>
First Capital Corporation
of Chicago (3 1,202,661 17.3% 982,074 220,587 3.2
Cross Creek
Partners I (3)(4) 160,355 2.3% 130,945 29,410 *
Protective Insurance
Company (5) 136,302 2.0% 136,302 0 *
NS Associates, Inc. (5) 18,054 * 18,054 0 *
John G. Schreiber (5) 40,089 * 32,736 7,353 *
Jennifer C. Schreiber
Trust (5)(6) 5,019 * 4,098 921 *
Heather E. Schreiber
Trust (5)(6) 5,019 * 4,098 921 *
Amy D. Schreiber
Trust (5)(6) 5,019 * 4,098 921 *
Michael D. Schreiber
Trust (5)(6) 5,020 * 4,098 922 *
Matthew D. Schreiber
Trust (5)(6) 5,004 * 4,086 918 *
Nicholas J. Schreiber
Trust (5)(5) 5,004 * 4,086 918 *
Molly E. Schreiber
Trust (5)(6) 5,004 * 4,086 918 *
Kaitlin E. Schreiber
Trust (5)(6) 5,004 * 4,086 918 *
--------- ---------
1,332,847 1,332,847
========= =========
________________________________
* Less than one percent.
</TABLE>
(1) Includes, with respect to each indicated Selling Stockholder, Common
Stock to be issued to such Selling Stockholder upon conversion by
such Selling Stockholder of his or its shares of Preferred Stock, of
which such Selling Stockholder is deemed to be the beneficial owner
pursuant to Exchange Act Rule 13d-3.
(2) Voting stock includes outstanding shares of Common Stock and all
shares of Common Stock that may be issued to the holders of Preferred
Stock upon conversion thereof. For purposes of determining the
percentages set forth in the table, each share of Preferred Stock
is counted as the equivalent of the number of shares of Common Stock
into which it can be converted, whether or nor conversion has occurred,
because holders of Preferred Stock are entitled to one vote on each
matter submitted to a vote of the Company's stockholders for each
share of Common Stock issuable upon conversion.
<PAGE>
(3) Eric C. Larson and Timothy A. Dugan, who are members of the Board
of Directors of the Company, are general partners of Cross Creek
Partners I, an investment partnership comprised of individual
officers of The First National Bank of Chicago, an affiliate of
First Capital Corporation of Chicago ("FCCC"). Mr. Larson and
Mr. Dugan are the beneficial owners of a portion of the shares
of Common Stock beneficially owned by Cross Creek Partners I
by virtue of their general partnership interest therein. FCCC, an
equity investment subsidiary of First Chicago Corporation, transferred
a total of 15,000 shares of Preferred Stock to the other Selling
Stockholders (excluding Cross Creek Partners I) on May 11, 1992,
but retained all voting rights with respect thereto. Although by
virtue of such retained voting rights FCCC is deemed to be a beneficial
owner of the 10,553.955 shares of Preferred Stock still owned by such
Selling Stockholders and the 234,532 shares of Common Stock issued
or issuable upon conversion thereof, FCCC has no pecuniary interest
in such shares or the shares of Common Stock issued upon conversion
thereof and the ownership of Common Stock for FCCC set forth in this
table does not include any such shares.
(4) Excludes all shares beneficially owned by FCCC. Cross Creek
Partners I is an investment partnership comprised of individual
officers of The First National Bank of Chicago, an affiliate of FCCC.
(5) FCCC transferred to this Selling Stockholder shares of Preferred
Stock on May 11, 1992, but retained all voting rights with respect
thereto. Although by virtue of such retained voting rights FCCC is
deemed to be a beneficial owner of the shares of Preferred Stock
still owned by such Selling Stockholder and the shares of Common Stock
issued or issuable upon conversion thereof, FCCC has no pecuniary
interest in such shares or the shares of Common Stock issued upon
conversion thereof and the ownership of Common Stock for FCCC set
forth in this table does not include any such shares.
(6) Created under the John G. Schreiber 1987 Children's Trust U/A
DTD 12/1/87.
PLAN OF DISTRIBUTION
The shares of Common Stock offered hereby may be sold from time to time
in one or more transactions at a fixed offering price, which may be changed,
or at varying prices determined at the time of sale or at negotiated prices.
The Company will not receive any of the proceeds from this offering.
The Selling Stockholders may from time to time offer shares of Common
Stock offered hereby to or through underwriters, dealers or agents, who may
receive consideration in the form of discounts and commissions; such
compensation, which may be in excess of ordinary brokerage commissions,
may be paid by the Selling Stockholders and/or the purchasers of the
shares of Common Stock offered hereby for whom such underwriters, dealers
or agents may act. Any such dealers or agents that participate in the
distribution of the shares of Common Stock offered hereby may be deemed
to be "underwriters" as defined in the Securities Act, and any profit on
the sale of such shares of Common Stock offered hereby by them and any
discounts, commissions or concessions received by any such dealers or
agents might be deemed to be underwriting discounts and commissions under
the Securities Act. The aggregate proceeds to the Selling Stockholders from
sales of the Common Stock offered by the Selling Stockholders hereby will be
the purchase price of such Common Stock less any broker's commissions and
underwriter's discounts.
To the extent required by the Securities Act with respect to underwritten
offerings, the specific shares of Common Stock to be sold, the names of
the Selling Stockholders, the respective purchase prices and public offering
prices, the names of the underwriter or underwriters, and any applicable
commissions or discounts with respect to a particular offer will be set
forth in an accompanying Prospectus Supplement or, if appropriate, a
post-effective amendment to the Registration Statement of which this
Prospectus is a part.
The sale of shares of Common Stock by the Selling Stockholders may also
be effected from time to time by selling shares directly to purchasers or
to or through broker-dealers. In connection with any such sales, any
such broker-dealer may act as agent for the Selling Stockholders or may
purchase from the Selling Stockholders all or a portion of such shares as
principal. Such sales may be made on NASDAQ or any exchange on which
the shares of Common Stock are then traded, in the over-the-counter
market, in negotiated transactions or otherwise at prices and at terms
then prevailing or at prices related to the then-current market prices
or at prices otherwise negotiated. Shares may also be sold in one or
more of the following transactions: (i) block transactions (which may
involve crosses) in which a broker-dealer may sell all or a portion of
such shares as agent but may position and resell all or a portion of the
block as principal to facilitate the transaction; (ii) purchases by any
such broker-dealer as principal and resale by such broker-dealer for its
own account pursuant to a Prospectus Supplement; (iii) a special offering,
an exchange distribution or a secondary distribution in accordance with
applicable NASDAQ rules; (iv) ordinary brokerage transactions and
transactions in which any such broker-dealer solicits purchasers;
(v) sales "at the market" to or through a market maker or into an existing
trading market, on an exchange or otherwise, for such shares; and
(vi) sales in other ways not involving market makers or established
trading markets, including direct sales to institutions or individual
purchasers. In effecting sales, broker-dealers engaged by the Selling
Stockholders may arrange for other broker-dealers to participate.
Broker-dealers will receive commissions or other compensation from the
Selling Stockholders in amounts to be negotiated immediately prior to the
sale that are not expected to exceed those customary in the types of
transactions involved. Broker-dealers may also receive compensation
from purchasers of the shares which is not expected to exceed that
customary in the types of transactions involved.
<PAGE>
The Company will pay substantially all the expenses incurred by the
Selling Stockholders and the Company incident to the offering and sale
of the shares of Common Stock offered hereby to the public, but
excluding any discounts, commissions and fees of underwriters,
broker-dealers or agents. The Company has agreed to indemnify the
Selling Stockholders against certain liabilities, including
liabilities under the Securities Act.
LEGAL MATTERS
Certain legal matters, including the legality of the Common
Stock offered hereby, will be passed upon for the Company by Goodwin,
Procter & Hoar, Boston, Massachusetts.
EXPERTS
The consolidated financial statements incorporated in this
Prospectus by reference from the Company's Annual Report on Form 10-K
for the year ended July 1, 1995 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which is incorporated
herein by reference in reliance upon the report of such firm, given
upon their authority as experts in accounting and auditing.
<PAGE>
No dealer, salesperson or other individual
has been authorized to give any information or
make any representations not contained in this
Prospectus. If given or made, such information
or representation must not be relied upon as
having been authorized by the Company or the
Selling Stockholders. This Prospectus does not
constitute an offer to sell, or a solicitation of an
offer to buy, the Common Stock in any
jurisdiction where, or to any person to whom, it is
unlawful to make such offer or solicitation.
Neither the delivery of this Prospectus nor any
sale made hereunder shall, under any
circumstances, create an implication that there
has not been any change in the facts set forth in
this Prospectus or in the affairs of the Company
since the date hereof.
____________________
TABLE OF CONTENTS
Page
Available Information. . . . . . . . 2
Incorporation of Certain Documents
by Reference. . . . . . . . . . . 2
The Company. . . . . . . . . . . . . 3
Registration Rights. . . . . . . . . 3
Selling Stockholders . . . . . . . . 4
Plan of Distribution . . . . . . . . 5
Legal Matters. . . . . . . . . . . . 5
Experts. . . . . . . . . . . . . . . 6
1,332,847 Shares
DAKA
International, Inc.
Common Stock
____________________
PROSPECTUS
____________________
___________, 1995
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the issuance and distribution of the
securities being registered are set forth in the following table (all
amounts except the registration fee are estimated):
Registration fee -- Securities and Exchange Commission. . . . $12,268
Accountants' fees and expenses . . . . . 15,000
Blue Sky fees and expenses . . . . . . . 10,000
Legal fees and expenses (other than Blue Sky). . 15,000
Miscellaneous. . . . . . . . . . . . . . 7,732
TOTAL. . . . . . . . . . . . . . . . . . $60,000
Item 15. Indemnification of Directors and Officers.
Limitation of Liability and Indemnification
The Registrant is a Delaware corporation. Reference is made to Section
145(a) and Section 145(b) of the Delaware General Corporation Law, 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.
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 in connection with
the defense or settlement of such action or suit 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 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 attorneys' 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
of the Registrant.
<PAGE>
The Certificate of Incorporation and By-laws of the Registrant
provide for indemnification of directors and officers of the Registrant
to the fullest extent permitted by law, as now in effect or later
amended. The By-laws also provide that expenses incurred by an officer
or director in defending a civil or criminal action, suit or proceeding
may be paid by the Registrant in advance of final disposition upon
receipt of an undertaking by or on behalf of such person to repay
such amount if it ultimately is determined that he is not entitled
to be indemnified by the Registrant. The By-laws further provide
that such indemnification provisions are not exclusive.
Additionally, the Registrant's Certificate of Incorporation
eliminates the personal liability of the Registrant's directors to
the Registrant or the stockholders of the Registrant to the fullest
extent permitted by the provisions of Section 102 of the Delaware
General Corporation Law, as the same may be amended and supplemented.
Item 16. Exhibits.
5.1 Opinion of Goodwin, Procter & Hoar as to the legality of
the securities being registered.
23.1 Consent of Deloitte & Touche LLP, Independent Auditors.
23.2 Consent of Goodwin, Procter & Hoar (included in Exhibit
5.1 hereto).
24.1 Powers of Attorney (included on the signature page hereof).
Item 17. Undertakings.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales
are being made pursuant to this Registration Statement, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(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 this Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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; and
(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.
<PAGE>
(b) The Company hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 that is incorporated by
reference in this 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 of 1933 may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions,
or otherwise, the Company has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of
expenses incurred or paid by a director, officer or controlling person
of the Company 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 Company
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 Act and will be governed by the final adjudication
of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 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, on September 1, 1995.
DAKA INTERNATIONAL, INC.
By: /s/ William H. Baumhauer
----------------------------
William H. Baumhauer,
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons
in the capacities and on the date indicated.
Each person whose signature appears below constitutes and appoints
William H. Baumhauer and Michael A. Woodhouse and each of them, as
her or his true and lawful attorney-in-fact and agent, with full power
of substitution, for her or him and in her or his name, place and stead,
in any and all capacities to sign any or all amendments or
post-effective amendments to this registration statement, and to file
the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent or her or
his substitute may lawfully do or cause to be done by virtue hereof.
Signature Title Date
/s/ William H. Baumhauer Chairman, Chief Executive September 1, 1995
Officer and Director
William H. Baumhauer (Principal Executive Officer)
/s/ Allen R. Maxwell President and Chief September 1, 1995
Allen R. Maxwell Operating Officer
/s/ Michael A. Woodhouse Senior Vice President, September 1, 1995
Michael A. Woodhouse Chief Financial Officer
and Treasurer (Principal
Financia and Accounting Officer)
/s/ E.L. Cox Director September 1, 1995
E. L. Cox
/s/ Timothy A. Dugan Director September 1, 1995
Timothy A. Dugan
/s/ Eric C. Larson Director September 1, 1995
Eric C. Larson
/s/ Erline Belton Director September 1, 1995
Erline Belton
/s/ Alan D. Schwartz Director September 1, 1995
Alan D. Schwartz
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
5.1 Opinion of Goodwin, Procter & Hoar as to the legality
of the securities being registered.
23.1 Consent of Deloitte & Touche LLP, Independent Auditors.
23.2 Consent of Goodwin, Procter & Hoar (included in Exhibit
5.1 hereto).
24.1 Powers of Attorney (included on the signature
page hereof).
Exhibit 5.1
GOODWIN, PROCTER & HOAR
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
COUNSELLORS AT LAW
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109
TELEPHONE (617)570-1531
TELECOPIER (617)523-1231
September 6, 1995
DAKA International, Inc.
One Corporate Place
53 Ferncroft Road
Danvers, Massachusetts 01923
Ladies and Gentlemen:
This opinion is furnished in connection with the filing by DAKA
International, Inc., a Delaware corporation (the "Company"), with the
Securities and Exchange Commission under the Securities Act of 1933,
as amended (the "Act"), of a Registration Statement on Form S-3
(the "Registration Statement") relating to 1,332,847 shares of
Common Stock, par value $.01 per share ("Common Stock"), of the
Company (the "Registered Shares") consisting of shares that may be
issued by the Company if and to the extent that holders of the Company's
outstanding shares of Series A Preferred Stock, par value $.01 per share
("Preferred Stock"), convert such Preferred Stock into Common Stock.
In connection with rendering this opinion, we have examined
Certificate of Incorporation and By-Laws of the Company, each as amended
to date; 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.
In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as certified, photostatic or facsimile copies, the
authenticity of the originals of such copies and the authenticity of
telephonic confirmations of public officials and others. As to facts
material to our opinion, we have relied upon certificates or telephonic
confirmations of public officials and certificates, documents, statements
and other information of the Company or representatives or officers
thereof.
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 Delaware General
Corporation Law.
Based upon the foregoing, we are of the opinion that when
the Registration Statement relating to the Registered Shares has
become effective under the Act and Registered Shares have been duly
issued upon conversion of shares of Preferred Stock, such Registered
Shares will be validly issued, fully paid and nonassessable.
The foregoing assumes that all requisite steps were 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 an exhibit to
the Registration Statement and to the reference to us with respect to
this opinion under the heading "Legal Matters" in the Prospectus which
is a part of such Registration Statement.
Very truly yours,
GOODWIN, PROCTER & HOAR
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of DAKA International, Inc. on Form S-3 of our report dated August 29, 1995,
appearing in the Annual Report on Form 10-K of DAKA International, Inc. for
the year ended July 1, 1995 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
Deloitte & Touche LLP
Boston, Massachusetts
August 31, 1995
