As filed with the Securities and Exchange Commission on October 25, 1996
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 LLP DAKA International, Inc.
Exchange Place One Corporate Place
Boston, Massachusetts 02109 55 Ferncroft Road
Danvers, Massachusetts 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. [ ]
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Securities Being Proposed Maximum Offering Proposed Maximum Aggregate Amount of
Registered Amount to be Registered Price Per Share(1) Offering Price(1) Registration Fee
<S> <C> <C> <C> <C>
Common Stock, par value $.01 593,784 $9.125 $5,418,279 $1,641.90
per share
</TABLE>
(1) Based upon the average of the high and low sale prices reported on the
Nasdaq National Market on October 18, 1996 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>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
PRELIMINARY PROSPECTUS DATED OCTOBER 25, 1996
SUBJECT TO COMPLETION
PROSPECTUS
593,784 Shares
DAKA INTERNATIONAL, INC.
Common Stock
-----------------------------
This Prospectus relates to the offering and sale (the "Offering") of up
to 593,784 shares of common stock, $.01 par value per share (the "Common
Stock"), of DAKA International, Inc. ("DAKA" or the "Company") held by certain
stockholders of the Company, or by pledgees, donees, transferees or other
successors in interest thereto (the "Selling Stockholders"). See "Plan of
Distribution" and "Selling Stockholders." The Common Stock was issued to the
former stockholders of the Great Bagel and Coffee Company in exchange for all
the outstanding stock of the Great Bagel and Coffee Company, and to former
stockholders of Americana Dining Corporation in exchange for the 43% voting
interest in Americana Dining Corporation not held by the Company. The Company is
registering the Common Stock pursuant to the Company's obligations under stock
purchase agreements, but the registration of the shares of Common Stock offered
hereby does not necessarily mean that 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 Selling Stockholders and any agents or broker-dealers that
participate with the Selling Stockholders in the distribution of the Common
Stock may be deemed to be "underwriters" within the meaning of the Securities
Act of 1933, as amended (the "Securities Act"), and any commission received by
them and any profit on the resale of the Common Stock may be deemed to be
underwriting commissions or discounts under the Securities Act. See
"Registration Rights" for a description of certain indemnification arrangements
between the Company and the Selling Stockholders.
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.
1
<PAGE>
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
, 1996.
-----------
-------------------
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 June 29, 1996 (File No. 0-17229) as filed on October 15, 1996, and (ii)
the description of the Company's Common Stock contained in its Registration
Statement on Form 8-A dated October 11, 1988, including any amendment or report
filed for the purpose of amending such description.
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.
2
<PAGE>
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 Timothy M. Feeney, Director of
Financial Reporting, DAKA International, Inc., One Corporate Place, 55 Ferncroft
Road, Danvers, Massachusetts 01923-4001, telephone (508) 774-9115.
THE COMPANY
DAKA, formed in 1988 in connection with the merger of Daka, Inc.
("Daka") and Fuddruckers, Inc. ("Fuddruckers"), 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.("Champps"),
licensor and franchisor of Champps restaurants. Champps owns, licenses and
franchises Champps Americana restaurants, which specialize in providing an
energetic, upper-scale, casual theme dining experience to a broad customer base,
including business professionals, families and adults. In 1996 the Company
acquired Champps and the remaining 43% voting interest in ADC.
In 1996, DAKA also acquired The Great Bagel and Coffee Company ("Great
Bagel and Coffee"). Great Bagel and Coffee owns, operates and franchises its
concept, featuring a full line of fresh-baked bagels and distinctive cream
cheeses, gourmet coffees, and sandwiches in a cafe setting.
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. At the end of fiscal 1993, the Company announced DAKA's aggressive
three-year growth plan to double the size of its existing foodservice business
by the end of fiscal 1996. At the beginning of fiscal 1994, 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. As a result of these two acquisitions, Daka achieved
its three-year growth objective in just nineteen months. Daka believes that, as
a result of current and anticipated cost containment policies, more public and
private educational and healthcare facilities will seek to manage their
foodservice costs by replacing self-operated foodservice operations with
contract foodservice management. Daka intends to pursue these expanding markets
through its internal sales force and by continuing to acquire other contract
foodservice management companies.
3
<PAGE>
Fuddruckers restaurants, with an average check of $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. In fiscal 1996, the Company acquired a 16.7%
equity interest in La Salsa Holding Co. ("La Salsa Holding"), the franchisor and
operator of La Salsa Mexican restaurants, and entered into a license agreement
with La Salsa Holding to utilize the "La Salsa Fresh Mexican Grill" concept
within Fuddruckers restaurants. The La Salsa concept compliments Fuddruckers'
existing menu by featuring fresh, healthy, authentic Mexican foods. Fuddruckers
opened its first restaurant in 1980 in San Antonio, Texas and as of June 29,
1996, had expanded its operations to include 121 Fuddruckers-owned and 76
franchised restaurants located throughout the United States and in Canada,
Mexico, the Middle East and Australia. In fiscal 1996, Fuddruckers opened 26
Fuddruckers-owned restaurants and franchised an additional 7 restaurants. In
fiscal 1997, Fuddruckers plans to open 7 domestic Fuddruckers-owned restaurants
and franchise an additional 10 domestic restaurants, with continued development
and expansion in foreign countries. In fiscal 1996, the Company introduced "La
Salsa Fresh Mexican Grill" in 10 Fuddruckers restaurants in the Los Angeles, San
Antonio, Chicago and Milwaukee markets.
The Champps Americana concept is based upon providing the best possible
food, value and service to customers. The restaurants' diverse menu has over 120
items including burgers, pastas, salads, sandwiches, ribs, pizzas, seafood,
chicken and a variety of other dishes all served in generous portions and
prepared from scratch using high quality ingredients. Customer service is based
on a team approach so that each patron is continually attended to, and employees
go through extensive on-going training to ensure consistent service. The goal of
Champps is to promote an entertaining and energetic atmosphere. In the typical
Champps restaurant, customers are provided a choice of seating in the main
dining area, at the diner-type counter, in the bar areas, or, in some locations,
outside on the patio. Champps restaurants generally have multiple levels and
open sight lines so that all areas, including the bar and kitchen, are visible
and allow customers to feel a part of all the varied activities in the
restaurant. These activities include watching sporting events on multiple
television screens, listening to music that is selected by a disc jockey based
upon the time of day or season, watching the cooks prepare meals, playing arcade
games in the discreetly located game room, or visiting the Champps gift shop. In
addition, the bar provides a staging area for on-going promotional events that
add to the restaurant's excitement. The Champps restaurant concept has been
developed and refined since the first Champps restaurant was opened in St. Paul,
Minnesota in 1984. As of June 29, 1996, operations have been expanded to include
10 Champps-owned and 10 franchised restaurants located throughout the United
States. Six Champps-owned restaurants were opened in fiscal 1996 with plans to
open 9 domestic Champps-owned restaurants in fiscal 1997. One Champps-owned
restaurant was sold in fiscal 1996 to a selling stockholder of ADC.
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.
Legal Proceedings
On October 18, 1996, a purported class action lawsuit was filed in the
United States District Court for the District of Massachusetts on behalf of
persons who acquired the Company's stock between October 30, 1995 and September
9, 1996 (Venturino et al, V. DAKA International, Inc. and William H. Baumhauer,
Civil Action No. 96-12109-GAO). The complaint alleges violations of federal and
state securities laws by, among other things, allegedly misrepresenting and/or
omitting material information concerning the results and prospects of
Fuddruckers during that period and seeks compensatory damages and reasonable
costs and expenses, including counsel fees. Due to the timing of the filing of
this lawsuit, management of the Company and outside counsel have not yet
determined the possible effect, if any, of an adverse outcome to the Company's
financial position, income from operations or cash flows.
4
<PAGE>
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 stock purchase agreements dated
as of March 18, 1996, March 29, 1996 and March 31, 1996 (the "Stock Purchase
Agreements").
Under the Stock Purchase Agreements, the Company is obligated, at the
written request of the Selling Stockholders, to cause to be filed, as soon as
reasonably practicable after the date of such request, a registration statement
under Rule 415 under the Securities Act covering the sale by the Selling
Stockholders of the Common Stock. The Company is further obligated to use
reasonable efforts to cause such registration statement to be declared effective
by the Commission and to keep such registration statement continuously effective
until the earliest of (a) the date on which the Selling Stockholders no longer
hold any Common Stock or (b) the second anniversary of the closing of the
transactions contemplated by each of the Stock Purchase Agreements (which date
shall be April 1, 1998 under the Stock Purchase Agreements dated March 18 and
31, 1996 and shall be April 2, 1998 under the Stock Purchase Agreement dated
March 29, 1996).
Pursuant to the Stock Purchase Agreements, 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 Stock Purchase Agreements 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 Stock Purchase
Agreements 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.
5
<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 Shares of Shares
Number of Shares of Voting Stock Number of Number of Shares of Voting
of Common Stock Outstanding (1) Shares of of Common Stock Stock
Beneficially Held Prior to Common Stock Beneficially Held Outstanding (1)
Selling Stockholder Prior to the Offering the Offering Stock Offered After the Offering After the Offering
- ------------------- --------------------- ------------ ------------- ------------------ ------------------
<S> <C> <C> <C> <C> <C>
Champps Development
Group, Inc. 78,910 * 78,910 -- --
Arthur E. Pew 25,455 * 25,455 -- --
PDS Financial Corporation 3,636 * 3,636 -- --
Douglas B. Tenpas 4,545 * 4,545 -- --
Kathleen Tenpas 4,546 * 4,546 -- --
Robert Tinsley 2,182 * 2,182 -- --
Donald Johansen 1,818 * 1,818 -- --
Sterling Brazier 909 * 909 -- --
Timothy Cary 909 * 909 -- --
Anthony Kroeten 273 * 273 -- --
Debra Kropf Mastin 364 * 364 -- --
Court Hawley 182 * 182 -- --
Eric LaClair 1,818 * 1,818 -- --
Sally Touve 636 * 636 -- --
Mitchel I. Wachman 13,637 * 13,637 -- --
Edmund F. Fadel 22,728 * 22,728 -- --
David Wayne Walker 182 * 182 -- --
Edgebrook, Inc. 91,818 * 91,818 -- --
Jason R. Olivier 173,011 1.5 173,011 -- --
Michael F. Zerbib 24,056 * 24,056 -- --
Thierry E. Zerbib 24,056 * 24,056 -- --
Brian H. Loeb 24,056 * 24,056 -- --
Nicholas D. Zerbib 24,056 * 24,056 -- --
Mark C. Gordon 3,849 * 3,849 -- --
Fred R. and
Maria Olivier 66,152 * 66,152 -- --
</TABLE>
6
<PAGE>
* Less than one percent.
(1) 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.
PLAN OF DISTRIBUTION
This prospectus relates to the offer and sale from time to time of up to
an aggregate of 593,784 shares of Common Stock by the Selling Stockholders, or
by pledgees, donees, transferees or other successors in interest thereto. The
Company is registering the Common Stock pursuant to the Company's obligations
under stock purchase agreements but the registration of the Common Stock does
not necessarily mean that any of the Common Stock will be offered or sold by the
Selling Stockholders hereunder. The Company will not receive any proceeds from
the offering of the Common Stock by the Selling Stockholders.
The distribution of the Common Stock may be effected from time to time
in one or more underwritten transactions at a fixed price or prices, which may
be changed, or at market prices prevailing at the time of sale, at prices
related to such prevailing market prices, or at negotiated prices. Any such
underwritten offering may be on a "best efforts" or a "firm commitment" basis.
In connection with any such underwritten offering, underwriters or agents may
receive compensation in the form of discounts, concessions or commissions from
the Selling Stockholders. Underwriters may sell the Common Stock to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters and/or commissions from the
purchasers for whom they may act as agents. 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.
7
<PAGE>
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 the Nasdaq National Market 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.
In order to comply with the securities laws of certain states, if
applicable, the Common Stock may be sold only through registered or licensed
brokers or dealers. In addition, in certain states, the Common Stock may not be
sold unless they have been registered or qualified for sale in such state or an
exemption from such registration or qualification requirement is available and
is complied with.
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
The legality of the Common Stock offered hereby, will be passed upon for
the Company by Goodwin, Procter & Hoar LLP, 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 June
29, 1996 have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report, which is incorporated herein by reference, and has been
so incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
8
<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.............................. 5
Selling Stockholders............................. 6
Plan of Distribution............................. 7
Legal Matters.................................... 8
Experts.......................................... 8
-----------------------------------------------------
-----------------------------------------------------
593,784 Shares
DAKA
INTERNATIONAL, INC.
Common Stock
-----------------------------------------------------
PROSPECTUS
-----------------------------------------------------
October , 1996
--
<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.......... $1,641.90
Accountants' fees and expenses.................................. *
Blue Sky fees and expenses...................................... *
Legal fees and expenses (other than Blue Sky)................... *
Miscellaneous................................................... *
---------
TOTAL........................................................... $ *
=========
* To be provided by amendment.
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
II-1
<PAGE>
directors so directs, by independent legal counsel in a written opinion or (iii)
by the stockholders of the Registrant.
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.
2.1 Stock Purchase Agreement, dated as of March 18, 1996, by and
among Casual Dining Ventures, Inc., the Company, Champps
Development Group, Inc., Steven J. Wagenheim, Arthur E. Pew,
III, PDS Financial Corporation, Douglas B. Tenpas and certain
other stockholders of Americana Dining Corp., incorporated
herein by reference to the Registrant's Annual Report on Form
10-K for the fiscal year ended June 29, 1996.
2.2 Stock Purchase Agreement, dated as of March 29, 1996, by and
among the Company, The Great Bagel and Coffee Franchising
Corp., GBC Credit Company, Gemini Production Facility, Inc.,
The Great Bagel and Coffee Company, Mark C. Gordon, Brian H.
Loeb, Jason R. Olivier, Michael F. Zerbib, Nicholas D. Zerbib,
and Thierry E. Zerbib, incorporated herein by reference to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended June 29, 1996.
2.3 Stock Purchase Agreement, dated as of March 31, 1996, by and
among Casual Dining Ventures, Inc., the Company and Edgebrook,
Inc., incorporated herein by reference to the Registrant's
Annual Report on Form 10-K for the fiscal year ended June 29,
1996.
5.1 Opinion of Goodwin, Procter & Hoar LLP 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 LLP (included in Exhibit
5.1 hereto).
24.1 Powers of Attorney
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-2
<PAGE>
(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.
(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.
II-3
<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
October 24, 1996.
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 Earl T. Benson 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 Officer and October 24,
- ------------------------ Director (Principal Executive Officer) 1996
William H. Baumhauer
Allen R. Maxwell* President and Chief Operating Officer
/s/Earl T. Benson Exec. Vice President, Chief October 24,
- ------------------------ Financial Officer and Treasurer 1996
Earl T. Benson (Principal Financial and Accounting Officer)
E.L. Cox* Director
Dean P. Vlahos* Director
Joseph W. O'Donnell* Director
Erline Belton* Director
Alan D. Schwartz* Director
*By:/s/William H. Baumhauer October 24, 1996
----------------------------
William H. Baumhauer
Attorney-in-Fact
II-4
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
2.1 Stock Purchase Agreement, dated as of March 18, 1996, by and
among Casual Dining Ventures, Inc., the Company, Champps
Development Group, Inc., Steven J. Wagenheim, Arthur E. Pew,
III, PDS Financial Corporation, Douglas B. Tenpas and certain
other stockholders of Americana Dining Corp., incorporated
herein by reference to the Registrant's Annual Report on Form
10- K for the fiscal year ended June 29, 1996.
2.2 Stock Purchase Agreement, dated as of March 29, 1996, by and
among the Company, The Great Bagel and Coffee Franchising
Corp., GBC Credit Company, Gemini Production Facility, Inc.,
The Great Bagel and Coffee Company, Mark C. Gordon, Brian H.
Loeb, Jason R. Olivier, Michael F. Zerbib, Nicholas D. Zerbib,
and Thierry E. Zerbib, incorporated herein by reference to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended June 29, 1996.
2.3 Stock Purchase Agreement, dated as of March 31, 1996, by and
among Casual Dining Ventures, Inc., the Company and Edgebrook,
Inc., incorporated herein by reference to the Registrant's
Annual Report on Form 10-K for the fiscal year ended June 29,
1996.
5.1 Opinion of Goodwin, Procter & Hoar LLP 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 LLP (included in Exhibit
5.1 hereto).
24.1 Powers of Attorney.
II-5
Exhibit 5.1
GOODWIN, PROCTER & HOAR LLP
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
COUNSELLORS AT LAW
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109
TELEPHONE (617)570-1000
TELECOPIER (617)523-1231
October 24, 1996
DAKA International, Inc.
One Corporate Place
55 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 593,784 shares of Common Stock, par value $.01 per share ("Common
Stock"), of the Company (the "Registered Shares").
In connection with rendering this opinion, we have examined the 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 the Registered Shares
have been validly issued and are 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 LLP
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 September 6, 1996
(except for Note 5 as to which the date is October 15, 1996), appearing in the
Annual Report on Form 10-K of DAKA International, Inc. for the year ended June
29, 1996 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
October 24, 1996
Exhibit 24.1
SPECIAL POWER OF ATTORNEY
The undersigned hereby constitutes and appoints, William H. Baumhauer and Earl
T. Benson and each of them, jointly and severally, his true and lawful
attorneys-in-fact and agents with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign the Registration
Statement On Form S-3 of DAKA International, Inc. and any and all amendments
thereto, and to file the same with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents 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
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
/s/Erline Belton
----------------
Erline Belton
Dated: October 21, 1996
<PAGE>
SPECIAL POWER OF ATTORNEY
The undersigned hereby constitutes and appoints, William H. Baumhauer and Earl
T. Benson and each of them, jointly and severally, his true and lawful
attorneys-in-fact and agents with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign the Registration
Statement On Form S-3 of DAKA International, Inc. and any and all amendments
thereto, and to file the same with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents 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
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
/s/Allen R. Maxwell
-------------------
Allen R. Maxwell
Dated: October 21, 1996
<PAGE>
SPECIAL POWER OF ATTORNEY
The undersigned hereby constitutes and appoints, William H. Baumhauer and Earl
T. Benson and each of them, jointly and severally, his true and lawful
attorneys-in-fact and agents with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign the Registration
Statement On Form S-3 of DAKA International, Inc. and any and all amendments
thereto, and to file the same with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents 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
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
/s/Alan D. Schwartz
-------------------
Alan D. Schwartz
Dated: October 21, 1996
<PAGE>
SPECIAL POWER OF ATTORNEY
The undersigned hereby constitutes and appoints, William H. Baumhauer and Earl
T. Benson and each of them, jointly and severally, his true and lawful
attorneys-in-fact and agents with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign the Registration
Statement On Form S-3 of DAKA International, Inc. and any and all amendments
thereto, and to file the same with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents 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
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
/s/E.L. Cox
-----------
E.L. Cox
Dated: October 21, 1996
<PAGE>
SPECIAL POWER OF ATTORNEY
The undersigned hereby constitutes and appoints, William H. Baumhauer and Earl
T. Benson and each of them, jointly and severally, his true and lawful
attorneys-in-fact and agents with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign the Registration
Statement On Form S-3 of DAKA International, Inc. and any and all amendments
thereto, and to file the same with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents 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
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
/s/Dean P. Vlahos
-----------------
Dean P. Vlahos
Dated: October 21, 1996
<PAGE>
SPECIAL POWER OF ATTORNEY
The undersigned hereby constitutes and appoints, William H. Baumhauer and Earl
T. Benson and each of them, jointly and severally, his true and lawful
attorneys-in-fact and agents with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign the Registration
Statement On Form S-3 of DAKA International, Inc. and any and all amendments
thereto, and to file the same with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents 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
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
/s/Joseph W. O'Donnell
----------------------
Joseph W. O'Donnell
Dated: October 21, 1996
