As filed with the Securities and
Exchange Commission on October 23, 1997 Registration No. 333-____
__________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________________
QUALITY DINING, INC.
(Exact name of registrant as specified in its charter)
INDIANA 35-18004902
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
4220 EDISON LAKES PARKWAY, MISHAWAKA, INDIANA 46545
(Address of Principal Executive Offices) (Zip Code)
QUALITY DINING, INC. 1997
STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
DANIEL B. FITZPATRICK
PRESIDENT AND CHIEF EXECUTIVE OFFICER
4220 EDISON LAKES PARKWAY, MISHAWAKA, INDIANA 46545
(Name and address of agent for service)
(219) 271-4600
(Telephone number, including area code, of agent for service)
Copy to:
JAMES A. ASCHLEMAN
BAKER & DANIELS
300 NORTH MERIDIAN STREET, SUITE 2700
INDIANAPOLIS, INDIANA 46204
(317) 237-0300
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO REGISTERED REGISTERED (1) OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
SHARE (2) PRICE (2)
<S> <C> <C> <C> <C>
Common Stock, 1,100,000 $4.59375 (3) $5,053,125 (3) $1,531.25 (3)
without par value
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933 (the "Securities
Act"), this Registration Statement also registers such additional
shares of Common Stock as may be offered or issued to prevent dilution
resulting from stock splits, stock dividends and similar transactions.
(2) It is impracticable to state the maximum offering price. Shares
offered pursuant to incentive stock options granted under the Quality
Dining, Inc. 1997 Stock Option and Incentive Plan are to be offered at
not less than the fair market value of one share of Common Stock of
Quality Dining, Inc. on the date the option is granted.
(3) Estimated solely for purposes of calculating the registration fee and
computed in accordance with Rule 457(c) under the Securities Act using
the average of the high and low sale prices of the Common Stock as
reported by the NASDAQ National Market System on October 17, 1997,
which was $4.59375 per share.
<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
The Section 10(a) prospectus for the Quality Dining, Inc. 1997 Stock
Option and Incentive Plan is not required to be filed with the Securities
and Exchange Commission as part of this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company's Annual Report on Form 10-K for the year ended October
27, 1996 and the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act"), including any
amendments or reports filed for the purpose of updating such description,
are incorporated herein by reference. All other reports filed pursuant to
Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year
for which audited financial statements are contained in the annual report
described above are incorporated herein by reference. All documents filed
by the Company pursuant to Sections 13(a), 13(c), 14, or 15(d) of the
Exchange Act after the date hereof and prior to the termination of the
offering of the securities offered hereby shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of
filing of such documents with the Commission. The Company will promptly
provide without charge to each person to whom a prospectus is delivered, a
copy of any or all information that has been incorporated herein by
reference (not including exhibits to the information that is incorporated
by reference unless such exhibits are specifically incorporated by
reference into such information), upon the written or oral request of such
person directed to the Secretary of the Company at its principal offices,
4220 Edison Lakes Parkway, Mishawaka, Indiana 46545, (219) 271-4600.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Reference is made to Section 7.8 of the Company's Restated Articles of
Incorporation filed as Exhibit 4.1 hereto which requires the Company, to
the extent not inconsistent with applicable law, including the Indiana
Business Corporation Law (IC 23-1-37-1, ET SEQ.), as amended from time to
time, to indemnify every person (and the estate, heirs, personal
representatives of such person) against all liabilities and reasonable
expenses, including, without limitation, fees and disbursements of counsel
and judgments, fines or penalties incurred by or awarded against, and
amounts paid in settlement by or on behalf of such person, in connection
with or resulting from any pending, threatened or completed claim, action,
suit or proceeding, and all appeals thereof (each, a "Claim"), in which
such person may become involved by reason of the fact that he or she is or
was a director, officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer, employee,
agent or fiduciary of another corporation, partnership, joint venture,
trust, employee benefit plan or other entity; provided, however, that if
any such person is not wholly successful in defending any such claim, he or
she shall be indemnified only if it is determined by a court of competent
jurisdiction or by the Board of Directors, upon advice of legal counsel,
that such person acted in good faith in what he or she reasonably believed
to be in the best interest of the Company, or at least not opposed to the
Company's interests, and, in addition, with respect to any criminal claim,
that such person had no reasonable cause to believe that his or her conduct
was unlawful. Such indemnification is in addition to any rights to which
any subject person may otherwise be entitled.
In addition, the Company has obtained a directors' and officers'
liability and company reimbursement policy in the amount of $3,000,000,
which insures against certain liabilities, including liabilities under the
Securities Act of 1933, subject to applicable retentions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The list of Exhibits is incorporated herein by reference to the Index
to Exhibits.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act 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 the registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (1)(i) and (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 by the registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the 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 the time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
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 registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Mishawaka, State of Indiana, on
September 17, 1997.
QUALITY DINING, INC.
By: /S/ DANIEL B. FITZPATRICK
Daniel B. Fitzpatrick
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in their respective
capacities and on the respective dates indicated opposite their names.
Each person whose signature appears below hereby authorizes each of Daniel
B. Fitzpatrick and William W. Moreton, each with full power of
substitution, to execute in the name and on behalf of such person any post-
effective amendment to this Registration Statement and to file the same,
with exhibits thereto, and other documents in connection therewith, making
such changes in this Registration Statement as the registrant deems
appropriate, and appoints each of Daniel B. Fitzpatrick and William W.
Moreton, each with full power of substitution, attorney-in-fact to sign any
amendment and any post-effective amendment to this Registration Statement
and to file the same, with exhibits thereto, and other documents in
connection therewith.
<TABLE>
<CAPTION>
SIGNATURES CAPACITY DATE
<S> <C> <C>
/S/ DANIEL B. FITZPATRICK Chairman, President, Chief September 17, 1997
Daniel B. Fitzpatrick Executive Officer and Director
(Principal Executive Officer)
/S/ WILLIAM W. MORETON Executive Vice President, September 17, 1997
William W. Moreton Treasurer and Chief Financial
Officer (Principal Financial
Officer)
/S/ MARTIN L. MIRANDA Vice President and Controller September 17, 1997
Martin L. Miranda (Principal Accounting Officer)
Director
David T. Austin
Director
Nordahl L. Brue
/S/ ARTHUR J. DECIO Director September 17, 1997
Arthur J. Decio
Director
Michael J. Dressell
/S/ JAMES K. FITZPATRICK Director September 17, 1997
James K. Fitzpatrick
Director
Ezra H. Friedlander
/S/ STEVEN M. LEWIS Director September 17, 1997
Steven M. Lewis
/S/ CHRISTOPER J. MURPHY, III Director September 17, 1997
Christopher J. Murphy, III
/S/ WILLIAM R. SCHONSHECK Director September 17, 1997
William R. Schonsheck
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
DESCRIPTION OF EXHIBIT
Exhibit
NO.
<S> <C>
4.1 Restated Articles of Incorporation of the Registrant and related
amendments. (The copy of this Exhibit filed as Exhibit 3-A to the
Company's Registration Statement on Form 8-A, dated April 1, 1997,
is incorporated herein by reference.)
4.2 By-Laws of the Registrant, as amended to date. (The copy of this
Exhibit filed as Exhibit 3-B to the Company's Registration Statement
on Form 8-A, dated April 1, 1997, is incorporated herein by
reference.)
4.3 Quality Dining, Inc. 1997 Stock Option and Incentive Plan.
5 Opinion of Baker & Daniels regarding legality of the securities
being registered.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Baker & Daniels (included in the Baker & Daniels Opinion
filed as Exhibit 5).
24 Powers of Attorney (included on the Signature Page of the
Registration Statement).
</TABLE>
EXHIBIT 4.3
QUALITY DINING, INC.
1997 STOCK OPTION AND INCENTIVE PLAN
1. PLAN PURPOSE. The purpose of the Plan is to promote the long-term
interests of the Company and its shareholders by providing a means for
attracting and retaining officers and key employees of the Company and its
Affiliates.
2. DEFINITIONS. The following definitions are applicable to the Plan:
"Affiliate" -- means any "parent corporation" or "subsidiary
corporation" of the Company as such terms are defined in Code Sections
424(e) and (f), respectively.
"Affiliated SAR" -- means a SAR that is granted in connection with a
related Option, and which automatically will be deemed to be exercised at
the same time that the related Option is exercised. The deemed exercise of
an Affiliated SAR shall not necessitate a reduction in the number of Shares
subject to the related Option.
"Award" -- means the grant by the Committee of Incentive Stock
Options, Non-Qualified Stock Options, SARs, Restricted Shares, Performance
Shares or any combination thereof, as provided in the Plan.
"Award Agreement" -- means the written agreement setting forth the
terms and provisions applicable to each Award granted under the Plan.
"Base Price" -- means the amount over which the appreciation in value
of a Share will be measured upon exercise of an SAR.
"Board" -- means the Board of Directors of the Company.
"Change in Control" -- means each of the events specified in the
following clauses (i) through (iii): (i) any third person, including a
"group" as defined in Section 13(d)(3) of the Exchange Act after the date
of the adoption of the Plan by the Board, first becomes the beneficial
owner of shares of the Company with respect to which 25% or more of the
total number of votes for the election of the Board of Directors of the
Company may be cast, (ii) as a result of, or in connection with, any cash
tender offer, exchange offer, merger or other business combination, sale of
assets or contested election, or combination of the foregoing, the persons
who were directors of the Company shall cease to constitute a majority of
the Board of Directors of the Company or (iii) the shareholders of the
Company shall approve an agreement providing either for a transaction in
which the Company will cease to be an independent publicly owned entity or
for a sale or other disposition of all or substantially all the assets of
the Company; provided, however, that the occurrence of any of such events
shall not be deemed a Change in Control if, prior to such occurrence, a
resolution specifically approving such occurrence shall have been adopted
by at least a majority of the Board of Directors of the Company.
"Code" -- means the Internal Revenue Code of 1986, as amended.
"Committee" -- means the Committee appointed by the Board pursuant to
Section 3 of the Plan.
"Company" -- means Quality Dining, Inc., an Indiana corporation.
"Continuous Service" -- means the absence of any interruption or
termination of service as an Employee of the Company or an Affiliate.
Service shall not be considered interrupted in the case of sick leave,
military leave or any other leave of absence approved by the Company or in
the case of any transfer between the Company and an Affiliate or any
successor to the Company.
"Director" -- means any individual who is a member of the Board.
"Disability" -- means total and permanent disability as determined by
the Committee pursuant to Code Section 22(e)(3).
"Employee" -- means any person, including an officer or Director, who
is employed by the Company or any Affiliate.
"Exchange Act" -- means the Securities Exchange Act of 1934, as
amended.
"Exercise Price" -- means the price per Share at which the Shares
subject to an Option may be purchased upon exercise of the Option.
"Freestanding SAR" -- means a SAR that is granted independently of any
Option.
"Incentive Stock Option" -- means an option to purchase Shares granted
by the Committee pursuant to the terms of the Plan which is intended to
qualify under Code Section 422.
"Market Value" -- means the last reported sale price on the date in
question (or, if there is no reported sale on such date, on the last
preceding date on which any reported sale occurred) of one Share on the
principal exchange on which the Shares are listed for trading, or if the
Shares are not listed for trading on any exchange, on the Nasdaq National
Market or any similar system then in use, or, if the Shares are not listed
on the Nasdaq National Market, the mean between the closing high bid and
low asked quotations of one Share on the date in question as reported by
Nasdaq or any similar system then in use, or, if no such quotations are
available, the fair market value on such date of one Share as the Committee
shall determine.
"Non-Qualified Stock Option" -- means an option to purchase Shares
granted by the Committee pursuant to the terms of the Plan, which option is
not intended to qualify under Code Section 422.
"Option" -- means an Incentive Stock Option or a Non-Qualified Stock
Option.
"Participant" -- means any Employee of the Company or any Affiliate
who is selected by the Committee to receive an Award.
"Performance Cycle" -- means the period of time, designated by the
Committee, over which Performance Shares may be earned.
"Performance Shares" -- means Shares awarded pursuant to Section 12 of
the Plan.
"Plan" -- means the Quality Dining, Inc. 1997 Stock Option and
Incentive Plan.
"Reorganization" -- means the liquidation or dissolution of the
Company or any merger, consolidation or combination of the Company (other
than a merger, consolidation or combination in which the Company is the
continuing entity and which does not result in the outstanding Shares being
converted into or exchanged for different securities, cash or other
property or any combination thereof).
"Restricted Period" -- means the period of time selected by the
Committee for the purpose of determining when restrictions are in effect
under Section 10 of the Plan with respect to Restricted Shares.
"Restricted Shares" -- means Shares which have been contingently
awarded to a Participant by the Committee subject to the restrictions
referred to in Section 10 of the Plan, so long as such restrictions are in
effect.
"Retirement" -- means a Participant's cessation of Continuous Service
on or after age 65 or such other age as is set forth in the Company's
retirement policy as in effect from time to time.
"Stock Appreciation Right" or "SAR" -- means an Award, granted alone
or in connection with a related Option, pursuant to Section 11 of the Plan.
"Securities Act" -- means the Securities Act of 1933, as amended.
"Shares" -- means the shares of common stock, no par value, of the
Company.
"Tandem SAR" -- means a SAR that is granted in connection with a
related Option, the exercise of which shall require forfeiture of the right
to purchase an equal number of Shares under the related Option (and when a
Share is purchased under the Option, the SAR shall be canceled to the same
extent).
3. ADMINISTRATION. The Plan shall be administered by the Committee,
which shall consist of two or more members of the Board, each of whom shall
be a "non-employee director" as provided under Rule 16b-3 of the Exchange
Act, and an "outside director" as provided under Code Section 162(m). The
members of the Committee shall be appointed by the Board. Except as
limited by the express provisions of the Plan, the Committee shall have
sole and complete authority and discretion to (a) select Participants and
grant Awards; (b) determine the number of Shares to be subject to types of
Awards generally, as well as to individual Awards granted under the Plan;
(c) determine the terms and conditions upon which Awards shall be granted
under the Plan; (d) prescribe the form and terms of Award Agreements; (e)
establish procedures and regulations for the administration of the Plan;
(f) interpret the Plan; and (g) make all determinations deemed necessary or
advisable for the administration of the Plan.
A majority of the Committee shall constitute a quorum, and the acts of
a majority of the members present at any meeting at which a quorum is
present, or acts approved in writing by all members of the Committee
without a meeting, shall be acts of the Committee. All determinations and
decisions made by the Committee pursuant to the provisions of the Plan
shall be final, conclusive, and binding on all persons, and shall be given
the maximum deference permitted by law.
4. PARTICIPANTS. The Committee may select from time to time
Participants in the Plan from those officers and key Employees of the
Company or its Affiliates who, in the opinion of the Committee, have the
capacity for contributing in a substantial measure to the successful
performance of the Company or its Affiliates.
5. SHARES SUBJECT TO PLAN, LIMITATIONS ON GRANTS AND EXERCISE PRICE.
Subject to adjustment by the operation of Section 13 hereof:
(a) The maximum number of Shares which may be issued with respect to
Awards made under the Plan is 1,100,000 Shares. The Shares with
respect to which Awards may be made under the Plan may either be
authorized and unissued shares or unissued shares heretofore or
hereafter reacquired and held as treasury shares. Any Award which
expires, terminates or is surrendered for cancellation or with respect
to Restricted Shares which is forfeited (so long as any cash dividends
paid on such Shares are also forfeited), may be subject to new Awards
under the Plan with respect to the number of Shares as to which a
termination or forfeiture has occurred.
(b) The number of Shares which may be granted under the Plan to any
Participant during any calendar year of the Plan under all forms of
Awards shall not exceed 150,000 Shares.
6. GENERAL TERMS AND CONDITIONS OF OPTIONS. The Committee shall have
full and complete authority and discretion, except as expressly limited by
the Plan, to grant Options and to prescribe the terms and conditions (which
need not be identical among Participants) of the Options. Each Option
shall be evidenced by an Award Agreement that shall specify: (a) the
Exercise Price, (b) the number of Shares subject to the Option, (c) the
expiration date of the Option, (d) the manner, time and rate (cumulative or
otherwise) of exercise of the Option, (e) the restrictions, if any, to be
placed upon the Option or upon Shares which may be issued upon exercise of
the Option, (f) the conditions, if any, under which a Participant may
transfer or assign Options, and (g) any other terms and conditions as the
Committee, in its sole discretion, shall determine. The Committee may, as
a condition of granting any Option, require that a Participant agree to
surrender for cancellation one or more Options previously granted to such
Participant.
7. EXERCISE OF OPTIONS.
(a) Except as provided in Section 16, an Option granted under the
Plan shall be exercisable during the lifetime of the Participant to whom
such Option was granted only by such Participant, and except as provided in
Section 8 of the Plan, no Option may be exercised unless at the time the
Participant exercises the Option, the Participant has maintained Continuous
Service since the date of the grant of the Option.
(b) To exercise an Option under the Plan, the Participant must give
written notice to the Company specifying the number of Shares with respect
to which the Participant elects to exercise the Option together with full
payment of the Exercise Price. The date of exercise shall be the date on
which the notice is received by the Company. Payment may be made either
(i) in cash (including check, bank draft or money order), (ii) by tendering
Shares already owned by the Participant and having a Market Value on the
date of exercise equal to the Exercise Price, (iii) by requesting that the
Company withhold Shares issuable upon exercise of the Option having a
Market Value equal to the Exercise Price, or (iv) by any other means
determined by the Committee in its sole discretion.
8. TERMINATION OF OPTIONS. Unless otherwise specifically provided by
the Committee in the Award Agreement or an amendment thereto, Options shall
terminate as provided in this Section.
(a) Unless sooner terminated under the provisions of this Section,
Options shall expire on the earlier of the date specified in the Award
Agreement or the expiration of ten (10) years from the date of grant.
(b) If the Continuous Service of a Participant is terminated for
cause, or voluntarily by the Participant for any reason other than
death, Disability or Retirement, all rights under any Options granted
to the Participant shall terminate immediately upon the Participant's
cessation of Continuous Service.
(c) If the Continuous Service of a Participant is terminated by
reason of Retirement or terminated by the Company without cause, the
Participant may exercise outstanding Options to the extent that the
Participant was entitled to exercise the Options at the date of
cessation of Continuous Service, but only within the period of three
(3) months immediately succeeding the Participant's cessation of
Continuous Service, and in no event after the applicable expiration
dates of the Options.
(d) In the event of the Participant's death or Disability, the
Participant or the Participant's beneficiary, as the case may be, may
exercise outstanding Options to the extent that the Participant was
entitled to exercise the Options at the date of cessation of Continuous
Service, but only within the one-year period immediately succeeding the
Participant's cessation of Continuous Service by reason of death or
Disability, and in no event after the applicable expiration date of the
Options.
9. INCENTIVE STOCK OPTIONS. Incentive Stock Options may be granted
only to Participants who are Employees. Any provisions of the Plan to the
contrary notwithstanding, (a) no Incentive Stock Option shall be granted
more than ten years from the earlier of the date the Plan is adopted by the
Board of Directors of the Company or approved by the Company's
Shareholders, (b) no Incentive Stock Option shall be exercisable more than
ten years from the date the Incentive Stock Option is granted, (c) the
Exercise Price of any Incentive Stock Option shall not be less than the
Market Value per Share on the date such Incentive Stock Option is granted,
(d) any Incentive Stock Option shall not be transferable by the Participant
to whom such Incentive Stock Option is granted other than by will or the
laws of descent and distribution and shall be exercisable during such
Participant's lifetime only by such Participant, (e) no Incentive Stock
Option shall be granted which would permit a Participant to acquire,
through the exercise of Incentive Stock Options in any calendar year, under
all plans of the Company and its Affiliates, Shares having an aggregate
Market Value (determined as of the time any Incentive Stock Option is
granted) in excess of $100,000 (determined by assuming that the Participant
will exercise each Incentive Stock Option on the date that such Option
first becomes exercisable), and (f) no Incentive Stock Option may be
exercised more than three (3) months after the Participant's cessation of
Continuous Service (one (1) year in the case of Disability) for any reason
other than death. Notwithstanding the foregoing, in the case of any
Participant who, at the date of grant, owns shares possessing more than 10%
of the total combined voting power of all classes of capital stock of the
Company or any Affiliate, the Exercise Price of any Incentive Stock Option
shall not be less than 110% of the Market Value per Share on the date such
Incentive Stock Option is granted and such Incentive Stock Option shall not
be exercisable more than five years from the date such Incentive Stock
Option is granted.
10. TERMS AND CONDITIONS OF RESTRICTED SHARES. The Committee shall have
full and complete authority, subject to the limitations of the Plan, to
grant Awards of Restricted Shares and to prescribe the terms and conditions
(which need not be identical among Participants) in respect of the Awards.
Unless the Committee otherwise specifically provides in the Award
Agreement, an Award of Restricted Shares shall be subject to the following
provisions:
(a) At the time of an Award of Restricted Shares, the Committee
shall establish for each Participant a Restricted Period during which,
or at the expiration of which, the Restricted Shares shall vest.
Subject to paragraph (e) of this Section, the Participant shall have
all the rights of a shareholder with respect to the Restricted Shares,
including but not limited to, the right to receive all dividends paid
on the Restricted Shares and the right to vote the Restricted Shares.
The Committee shall have the authority, in its discretion, to
accelerate the time at which any or all of the restrictions shall lapse
with respect to any Restricted Shares prior to the expiration of the
Restricted Period, or to remove any or all restrictions, whenever it
may determine that such action is appropriate by reason of changes in
applicable tax or other laws or other changes in circumstances
occurring after the commencement of the Restricted Period.
(b) If a Participant ceases Continuous Service for any reason,
including death, before the Restricted Shares have vested, a
Participant's rights with respect to the unvested portion of the
Restricted Shares shall terminate and be returned to the Company.
(c) Each certificate issued in respect to Restricted Shares shall be
registered in the name of the Participant and deposited by the
Participant, together with a stock power endorsed in blank, with the
Company and shall bear the following (or a similar) legend:
"The transferability of this certificate and the shares
represented hereby are subject to the terms and conditions
(including forfeiture) contained in the 1997 Stock Option and
Incentive Plan of Quality Dining, Inc. and an Award Agreement
entered into between the registered owner and Quality Dining,
Inc. Copies of the Plan and Award Agreement are on file in the
office of the Secretary of the Company."
(d) At the time of an Award of Restricted Shares, the Participant
shall enter into an Award Agreement with the Company in a form
specified by the Committee agreeing to the terms and conditions of the
Award.
(e) At the time of an Award of Restricted Shares, the Committee may,
in its discretion, determine that the payment to the Participant of
dividends declared or paid on the Restricted Shares by the Company, or
a specified portion thereof, shall be deferred until the earlier to
occur of (i) the lapsing of the restrictions imposed with respect to
the Restricted Shares, or (ii) the forfeiture of such Restricted Shares
under paragraph (b) of this Section, and shall be held by the Company
for the account of the Participant until such time. In the event of
deferral, there shall be credited at the end of each year (or portion
thereof) interest on the amount of the account at the beginning of the
year at a rate per annum as the Committee, in its discretion, may
determine. Payment of deferred dividends, together with accrued
interest, shall be made upon the earlier to occur of the events
specified in (i) and (ii) of this paragraph.
(f) At the expiration of the restrictions imposed by this Section,
the Company shall redeliver to the Participant the certificate(s) and
stock power deposited with the Company pursuant to paragraph (c) of
this Section and the Shares represented by the certificate(s) shall be
free of all restrictions.
(g) No Award of Restricted Shares may be assigned, transferred or
encumbered.
11. GRANT OF SARS. Subject to the terms and conditions of the Plan, a
SAR Award may be made to Participants at any time and from time to time as
shall be determined by the Committee, in its sole discretion. The
Committee may grant Affiliated SARs, Freestanding SARs, Tandem SARs, or any
combination thereof as follows:
(a) The Committee, subject to the limitations of the Plan, shall
have complete discretion to determine the Exercise Price and other
terms and conditions of SARs granted under the Plan. Each SAR Award
shall be evidenced by an Award Agreement specifying the terms and
conditions of the Award, including its term, the Base Price and the
conditions of exercise.
(b) The Base Price of Shares with respect to a Tandem or Affiliated
SAR Award shall equal the Exercise Price of the Shares under the
related Option.
(c) Tandem SARs may be exercised for all or part of the Shares
subject to the related Option upon the surrender of the right to
exercise the equivalent portion of the related Option. A Tandem SAR
may be exercised only with respect to the Shares for which its related
Option is then exercisable. With respect to a Tandem SAR granted in
connection with an Incentive Stock Option: (i) the Tandem SAR shall
expire no later than the expiration of the underlying Incentive Stock
Option; (ii) the value of the payout with respect to the Tandem SAR
shall be for no more than one hundred percent (100%) of the difference
between the Exercise Price of the underlying Incentive Stock Option and
the Market Value of the Shares subject to the underlying Incentive
Stock Option at the time the Tandem SAR is exercised; and (iii) the
Tandem SAR shall be exercisable only when the Market Value of the
Shares subject to the Incentive Stock Option exceeds the Exercise Price
of the Incentive Stock Option.
(d) Upon exercise of a SAR, a Participant shall be entitled to
receive payment from the Company in an amount determined by
multiplying:
(i) The difference between the Market Value of a Share on the
date of exercise over the Base Price; times
(ii) The number of Shares with respect to which the SAR Award
is exercised.
At the discretion of the Committee, payment for a SAR may be in
cash, Shares or a combination thereof.
12. PERFORMANCE SHARES. The Committee, in its sole discretion, may from
time to time authorize the grant of Performance Shares upon the achievement
of performance goals (which may be cumulative and/or alternative) as may be
established, in writing, by the Committee based on any one or any
combination of the following criteria: (a) earnings per Share; (b) return
on equity; (c) return on assets; (d) operating income; (e) earnings before
interest, taxes, depreciation and amortization; and (f) number of
restaurants operated or franchised. At the time as it is certified, in
writing, by the Committee that the performance goals established by the
Committee have been attained or otherwise satisfied within the Performance
Cycle, the Committee shall authorize the payment of cash in lieu of
Performance Shares or the issuance of Performance Shares registered in the
name of the Participant, or a combination of cash and Shares. The grant of
an Award of Performance Shares shall be evidenced by an Award Agreement
containing the terms and conditions of the Award as determined by the
Committee.
If the Participant ceases Continuous Service before the end of a
Performance Cycle for any reason other than Retirement, Disability, or
death, the Participant shall forfeit all rights with respect to any
Performance Shares that were being earned during the Performance Cycle.
The Committee, in its sole discretion, may establish guidelines providing
that if a Participant ceases Continuous Service before the end of a
Performance Cycle by reason of Retirement, Disability, or death, the
Participant shall be entitled to a prorated payment with respect to any
Performance Shares that were being earned during the Performance Cycle.
13. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of any
change in the outstanding Shares subsequent to the effective date of the
Plan by reason of any reorganization, recapitalization, stock split, stock
dividend, combination or exchange of stock, merger, consolidation or any
change in the corporate structure or Shares of the Company, the maximum
aggregate number and class of shares as to which Awards may be granted
under the Plan and the number and class of shares with respect to which
Awards theretofore have been granted under the Plan shall be appropriately
adjusted by the Committee to prevent the dilution or diminution of Awards.
The Committee's determination with respect to any adjustments shall be
conclusive. Any shares or other securities received, as a result of any of
the foregoing, by a Participant with respect to Restricted Shares shall be
subject to the same restrictions and the certificate(s) or other
instruments representing or evidencing the shares or other securities shall
be legended and deposited with the Company in the manner provided in
Section 10 of this Agreement.
14. EFFECT OF REORGANIZATION. Unless otherwise provided by the
Committee in the Award Agreement, Awards will be affected by a
Reorganization as follows:
(a) If the Reorganization is a dissolution or liquidation of the
Company then (i) the restrictions on Restricted Shares shall lapse and
(ii) each outstanding Option or SAR Award shall terminate, but each
Participant to whom the Option or SAR was granted shall have the right,
immediately prior to the dissolution or liquidation to exercise the
Option or SAR in full, notwithstanding the provisions of Section 9, and
the Company shall notify each Participant of such right within a
reasonable period of time prior to any dissolution or liquidation.
(b) If the Reorganization is a merger or consolidation, other than a
Change in Control subject to Section 15 of this Plan, upon the
effective date of the Reorganization (i) each Participant shall be
entitled, upon exercise of an Option in accordance with all of the
terms and conditions of the Plan, to receive in lieu of Shares, shares
or other securities or consideration as the holders of Shares shall be
entitled to receive pursuant to the terms of the Reorganization; and
(ii) each holder of Restricted Shares shall receive shares or other
securities as the holders of Shares received which shall be subject to
the restrictions set forth in Section 10 unless the Committee
accelerates the lapse of such restrictions and the certificate(s) or
other instruments representing or evidencing the shares or other
securities shall be legended and deposited with the Company in the
manner provided in Section 10 of this Plan.
The adjustments contained in this Section and the manner of
application of such provisions shall be determined solely by the Committee.
15. EFFECT OF CHANGE IN CONTROL. If the Continuous Service of any
Participant of the Company or any Affiliate is involuntarily terminated,
for whatever reason, at any time within twelve months after a Change in
Control, unless the Committee shall have otherwise provided in the Award
Agreement, (a) any Restricted Period with respect to an Award of Restricted
Shares shall lapse upon the Participant's termination of Continuous Service
and all Restricted Shares shall become fully vested in the Participant to
whom the award was made; and (b) with respect to Performance Shares, the
Participant shall be entitled to receive a prorata payment of Shares to the
same extent as if the Participant ceases Continuous Service by reason of
Retirement under Section 12 of the Plan. If a tender offer or exchange
offer for Shares (other than such an offer by the Company) is commenced, or
if the event specified in clause (iii) of the definition of a Change in
Control contained in Section 2 shall occur, unless the Committee shall have
otherwise provided in the Award Agreement, all Option and SAR Awards
theretofore granted and not fully exercisable shall become exercisable in
full upon the happening of such event and shall remain exercisable in
accordance with their terms; provided, however, that no Option or SAR shall
be exercisable by a director or officer of the Company within six months of
the date of grant of the Option or SAR and no Option or SAR which has
previously been exercised or otherwise terminated shall become exercisable.
16. ASSIGNMENTS AND TRANSFERS. Except as otherwise expressly authorized
by the Committee in the Award Agreement or an amendment thereto, during the
lifetime of a Participant no Award nor any right or interest of a
Participant in any Award under the Plan may be assigned, encumbered or
transferred otherwise than by will or the laws of descent and distribution.
17. EMPLOYEE RIGHTS UNDER THE PLAN. No officer, Employee or other
person shall have a right to be selected as a Participant nor, having been
so selected, to be selected again as a Participant and no officer, Employee
or other person shall have any claim or right to be granted an Award under
the Plan or under any other incentive or similar plan of the Company or any
Affiliate. Neither the Plan nor any action taken under the Plan shall be
construed as giving any Employee any right to be retained in the employ of
the Company or any Affiliate.
18. DELIVERY AND REGISTRATION OF SHARES. The Company's obligation to
deliver Shares with respect to an Award shall, if the Committee requests,
be conditioned upon the receipt of a representation as to the investment
intention of the Participant to whom such Shares are to be delivered, in
such form as the Committee shall determine to be necessary or advisable to
comply with the provisions of the Securities Act or any other applicable
federal or state securities laws. It may be provided that any
representation requirement shall become inoperative upon a registration of
the Shares or other action eliminating the necessity of the representation
under the Securities Act or other state securities laws. The Company shall
not be required to deliver any Shares under the Plan prior to (i) the
admission of such Shares to listing on any stock exchange or system on
which Shares may then be listed, and (ii) the completion of any
registration or other qualification of the Shares under any state or
federal law, rule or regulation, as the Company shall determine to be
necessary or advisable.
19. WITHHOLDING TAX. Prior to the delivery of any Shares or cash
pursuant to an Award, the Company shall have the right and power to deduct
or withhold, or require the Participant to remit to the Company, an amount
sufficient to satisfy all applicable tax withholding requirements. The
Committee, in its sole discretion and pursuant to such procedures as it may
specify from time to time, may permit or require a Participant to satisfy
all or part of the tax withholding obligations in connection with an Award
by (a) having the Company withhold otherwise deliverable Shares, or (b)
delivering to the Company Shares already owned having a Market Value equal
to the amount required to be withheld. The amount of the withholding
requirement shall be deemed to include any amount which the Committee
determines, not to exceed the amount determined by using the maximum
federal, state or local marginal income tax rates applicable to the
Participant with respect to the Award on the date that the amount of tax to
be withheld is to be determined for these purposes. For these purposes,
the value of the Shares to be withheld or delivered shall be equal to the
Market Value as of the date that the taxes are required to be withheld.
20. TERMINATION, AMENDMENT AND MODIFICATION OF PLAN. The Board may at
any time terminate, and may at any time and from time to time and in any
respect amend or modify, the Plan; provided however, that to the extent
necessary and desirable to comply with Rule 16b-3 under the Exchange Act or
Code Section 422 (or any other applicable law or regulation, including
requirements of any stock exchange or quotation system on which the
Company's common stock is listed or quoted) shareholder approval of any
Plan amendment shall be obtained in the manner and to the degree as is
required by the applicable law or regulation; and provided further, that no
termination, amendment or modification of the Plan shall in any manner
affect any Award theretofore granted pursuant to the Plan without the
consent of the Participant to whom the Award was granted or transferee of
the Award.
21. EFFECTIVE DATE AND TERM OF PLAN. The Plan shall become effective
upon its adoption by the Board of Directors, subject to ratification by the
shareholders of the Company at the next annual meeting, and shall continue
in effect for a term of ten years from the date of adoption by the Board of
Directors unless sooner terminated under Section 20 of the Plan.
22. GOVERNING LAW. The Plan and Award Agreements shall be construed in
accordance with and governed by the laws of the State of Indiana.
ADOPTED BY THE BOARD OF DIRECTORS OF
QUALITY DINING, INC.
AS OF FEBRUARY 14, 1997
ADOPTED BY THE SHAREHOLDERS OF
QUALITY DINING, INC.
AS OF MARCH 26, 1997
EXHIBIT 5
BAKER & DANIELS
300 NORTH MERIDIAN STREET
SUITE 2700
INDIANAPOLIS, INDIANA 46204
(317) 237-0300
October 23, 1997
Quality Dining, Inc.
4220 Edison Lakes Parkway
Mishawaka, Indiana 46545
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Quality Dining, Inc., an Indiana
corporation (the "Company"), in connection with the preparation and filing
with the Securities and Exchange Commission (the "Commission") of the
Company's Registration Statement on Form S-8 (the "Registration Statement")
under the Securities Act of 1933 (the "Act"), registering the offer and
sale of up to 1,100,000 shares of the Company's common stock, no par value
(the "Shares"), pursuant to the Company's 1997 Stock Option and Incentive
Plan (the "Plan").
In so acting, we have examined and relied upon the originals, or
copies certified or otherwise identified to our satisfaction, of such
records, documents and other instruments as in our judgment are necessary
or appropriate to enable us to render the opinion expressed below.
Based on the foregoing, we are of the opinion that the Shares have
been duly authorized and, when the Registration Statement shall have become
effective and the Shares have been issued in accordance with the Plan, the
Shares will be validly issued, fully paid and nonassessable.
Our opinion expressed above is limited to the federal law of the
United States and the law of the State of Indiana.
<PAGE>
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby concede
that we are within the category of persons whose consent is required under
Section 7 of the Act or the Rules and Regulations of the Commission
thereunder.
Very truly yours,
/s/ BAKER & DANIELS
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement of Quality Dining, Inc. on Form S-8 (File No. 333-___________) of
our report dated January 10, 1997, on our audits of the consolidated
financial statements of Quality Dining, Inc. and subsidiaries as of October
27, 1996 and October 29, 1995, and for the fifty-two week periods ended
October 27, 1996, October 29, 1995 and October 30, 1994, which report is
included in the Annual Report on Form 10-K of Quality Dining, Inc. for its
fiscal year ended October 27, 1996.
/S/ COOPERS & LYBRAND, L.L.P.
COOPERS & LYBRAND L.L.P.
South Bend, Indiana
October 22, 1997
