As filed with the Securities and Exchange Commission on December 20, 1996
Registration No. 33-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
SILVER DINER, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-3234411
(State or other jurisdiction of
incorporation or organization) (I.R.S. Employer Identification No.)
11806 Rockville Pike
Rockville, Maryland 20852
(301)770-0333
(Address of Principal Executive Offices, Including Zip Code)
SILVER DINER, INC. 1996 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
AND
SILVER DINER, INC. 1996 CONSULTANT STOCK OPTION AND STOCK PURCHASE PLAN
(Full Title of the Plans)
Robert T. Giaimo
President
11806 Rockville Pike
Rockville, Maryland 20852
(Name and Address of Agent for Service)
(301) 770-0333
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
Arnold R. Westerman, Esq.
Arent Fox Kintner Plotkin & Kahn
1050 Connecticut Avenue, N.W.
Washington, DC 20036-5339
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
Proposed Proposed
Amount Maximum Maximum
Title of Securities to be Offering Price Aggregate Amount of Registration
to be Registered Registered Per Share Offering Price Fee
- ---------------------------------------------------------------------------------------------------------------------
<S> <C>
Common Stock, $.00074 par value 175,000 $4.28125(1) $749,219(1) $259.00
Options to purchase one share of Common 100,000 $1.794(2) $179,400(2) $62.00
Stock, $ .00074 par value.
=====================================================================================================================
</TABLE>
(1) Pursuant to Rule 457(h)(1), based on the average of the high and low prices
of the Common Stock reported in the NASDAQ National Market on December 18, 1996,
which is within five business days prior to the date of filing.
(2) Pursuant to Rule 457(i), based on the purchase price of an option to
purchase one share of Common Stock pursuant to the Black-Scholes methodology
based on the average of the high and low prices of the Common Stock reported
in the NASDAQ National Market on December 18, 1996, which is within five
business days prior to the date of filing.
Page 1 of _______
Exhibit Index on Page ___
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
* Information about the Registrant (formerly known as Food
Trends Acquisition Corporation) required by Part I to be
contained in a Section 10(a) prospectus is omitted from the
Registration Statement in accordance with Rule 428 under the
Securities Act of 1933 (the "Securities Act") and the Note to
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents previously filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement:
1. The Registrant's Form S-4 Registration Statement (File No.
33-98844) filed on November 1, 1995 and declared effective by the
Commission on February 1, 1996.
2. The Registrant's Form S-3 Registration Statement (File No.
333-09735) filed on August 7, 1996 and declared effective by the
Commission on August 14, 1996.
3. All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") since the end
of the fiscal year ended December 31, 1995.
4. Registrant's Form 8-A Registration Statement filed pursuant to
Section 12 of the Exchange Act, containing a description of the
Registrant's common stock ("Shares"), including any amendment
or report filed for the purpose of updating such description.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
<PAGE>
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law, as amended,
provides that a corporation may 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
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director, officer, employee or agent of the
corporation or is or was serving at its request in such capacity in another
corporation or business association, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 102(b)(7) of the Delaware General Corporation Law, as amended,
permits a corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit.
Article Eighth of the Registrant's Certificate of Incorporation, as
amended, provides for the elimination of personal liability of a director for
breach of fiduciary duty as permitted by Section 102(b)(7) of the Delaware
General Corporation Law, and Article Eighth also provides that the Registrant
may indemnify its directors and officers to the full extent permitted by the
Delaware General Corporation Law.
The Registrant has in effect a directors and officers liability
insurance policy under which the directors and officers of the Registrant are
insured against loss arising from claims made against them due to wrongful acts
while acting in their individual and collective capacities as directors and
officers, subject to certain exclusions.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
See Exhibit Index on page 6.
Item 9. Undertakings
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, a post-effective
amendment to this Registrant Statement;
-2-
<PAGE>
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this Registration
Statement;
(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 the undertakings set forth in paragraphs (1)(i) and
(1)(ii) above 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 Exchange
Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The Registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant, unless in the opinion of its counsel the matter has
been settled by controlling precedent, will submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
-3-
<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 Rockville, State of Maryland, on the 18th day of
December, 1996.
SILVER DINER, INC.
By: \s\ Robert T. Giaimo
-------------------------------
Robert T. Giaimo
President and Chief Executive Officer
-4-
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Robert T. Giaimo and David Oden, and each of
them his true and lawful attorney-in-fact and agent with power of
substitution and resubstitution, for him, and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post effective amendments) to this Registration Statement on Form S-8, and
to file the same, with all exhibits thereto, and all documents in
connection therewith, with the Commission, granting unto said
attorney-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to
be done to comply with the provisions of the Securities Act and all
requirements of the Commission, hereby ratifying and confirming all that
said attorney-in-fact or any of them, or their or his or her substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated:
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C>
\s\ Robert T. Giaimo President, Chief Executive December 18, 1996
- ------------------------------------
Robert T. Giaimo Officer and Director
\s\ David Oden Vice President and Chief Financial December 18, 1996
- ------------------------------------
David Oden Officer
\s\ Catherine Britton Director December 18, 1996
- ------------------------------------
Cathrine Britton
\s\ Clinton Clark Director December 18, 1996
- ------------------------------------
Clinton Clark
\s\ Ype Hengst Director December 18, 1996
- ------------------------------------
Ype Hengst
\s\ Edward H. Kaplan Director December 18, 1996
- ------------------------------------
Edward H. Kaplan
- ------------------------------------ Director _________________
George A. Naddaff
\s\ Louis P. Neeb Director December 18, 1996
- ------------------------------------
Louis P. Neeb
\s\ Charles Steiner Director December 18, 1996
- ------------------------------------
Charles Steiner
\s\ Douglas M. Suliman Director December 18, 1996
- ------------------------------------
Douglas M. Suliman
</TABLE>
-5-
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Page
Exhibit
<S> <C>
4. Instruments defining the rights of securityholders:
(a) The Silver Diner, Inc. 1996 Non-employee Director Stock Option Plan
and exhibits......................................................................7
(b) The Silver Diner, Inc. 1996 Consultant Stock Option and Stock Purchase
Plan and exhibits................................................................15
5. Opinion of Arent Fox Kintner Plotkin & Kahn re: validity of securities registered.
23. Consents of experts and counsel:
(a) Consent of Reznick Fedder & Silverman (certified public accountants).............27
(b) Consent of KPMG Peat Marwick LLP (certified public accountants)..................28
(c) Consent of Arent Fox Kintner Plotkin & Kahn (counsel): included in exhibit 5.....29
24. Power of Attorney: included on signature page.
</TABLE>
-6-
EXHIBIT 4(a)
SILVER DINER, INC.
1996 Non-Employee Director Stock Option Plan
The following constitute the provisions of the Company's 1996
Non-Employee Director Stock Option Plan.
1. Purpose
The purpose of the Plan is to provide an investment opportunity to the
Company's Non-employee Directors by granting them Options to purchase shares of
Common Stock as compensation for their service on the Board.
2. Definitions
As used in this Plan, the following words and phrases shall have the
meanings indicated:
(a) "Board" shall mean the Company's Board of Directors.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(c) "Common Stock" shall mean the shares of common stock, $.00074 par
value, of the Company.
(d) "Company" shall mean Silver Diner, Inc., and its Subsidiaries.
(e) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(f) "Fair Market Value" shall mean the closing price of a share of the
Common Stock as reported on the Nasdaq National Market System, or (ii)
if the shares of such Common Stock are not then listed on the Nasdaq
National Market System, the closing price per share of the Common Stock
on the principal national securities exchange, if any, on which the
shares of Common Stock shall then be listed, or (iii) if the shares of
such Common Stock are not then listed on a national securities
exchange, the closing price per share of Common Stock entered on a
national inter-dealer quotation system, or (iv) if no closing or last
sales price per share of Common Stock is entered on a national
inter-dealer quotation system, the average of the closing bid and asked
prices for the shares of such Common Stock in the over-the-counter
market, or (v) if no price can be determined under the preceding
alternatives, then the price per share as most recently determined by
the Board, which shall, if the price is not determined under any one of
the preceding alternatives, make such determination of the Fair Market
Value at least once each month.
(g) "Form S-8 Registration Statement" shall mean a registration
statement filed on Form S-8 with and declared effective by the
Securities and Exchange Commission under the Securities Act covering
the offer and sale of the Options and the underlying Common Stock.
(h) "Non-employee Director" shall mean any member of the Company's
Board who is a "Non- Employee Director" as such term is defined under
Rule 16b-3(b)(3)(i) promulgated under the Exchange Act.
<PAGE>
(i) "Option" shall mean any option issued pursuant to this Plan.
(j) "Optionee" shall mean any person to whom an Option is granted
under this Plan.
(k) "Parent" shall mean any corporation (other than the Company) in
an unbroken chain of corporations ending with the Company if, at the
time of granting an Option or the sale of any Common Stock, each
of the corporations other than the Company owns stock possessing fifty
percent (50%) or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.
(l) "Plan" shall mean this 1996 Non-employee Director Stock Option
Plan.
(m) "Reorganization" shall mean any merger, reorganization,
consolidation or sale of all or substantially all of the Company's
assets.
(n) "Registered" shall mean a Form S-8 Registration Statement shall
be in effect covering the purchase of the Options or the
underlying shares.
(o) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(p) "Stock Option Agreement" shall mean the agreement evidencing
the Options sold to Optionees pursuant to the Plan containing the terms
and conditions specified in Section 7 below and on the form attached
hereto as Exhibit A.
(q) "Subsidiary" shall mean any corporation (other than the Company)
in an unbroken chain of corporations beginning with the Company if, at
the time of granting an Option, each of the corporations, other than
the last corporation in the unbroken chain owns stock possessing
fifty percent (50%) or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.
3. General Administration
The Plan shall be administered by a committee (the "Committee"),
consisting of not less than two Non- employee Directors. The Committee shall
have the authority in its discretion to administer the Plan and to interpret the
Plan and to prescribe, amend and rescind rules and regulations relating to the
operation of the Plan and to make all other determinations deemed necessary or
advisable for the administration of the Plan; provided, however, that the
Committee may not alter, amend or modify the express provisions of the Plan. The
Board shall fill all vacancies, however caused, in the Committee. The Board may
from time to time appoint additional members to the Committee, and may at any
time remove one or more Committee members and substitute others. No member of
the Board or the Committee shall be liable for any action taken or determination
made in good faith with respect to the Plan or any action taken thereunder.
- 2 -
<PAGE>
4. Term of Plan
The Plan became effective upon its adoption by the Company's Board on
September 11, 1996, subject to stockholder approval, and shall continue in
effect for a term of ten (10) years unless sooner terminated under Section 10
hereof. Any Options outstanding under the Plan on such date shall continue to be
exercisable pursuant to their terms, except as provided by Section 7(f) hereof.
5. Eligibility
Options may be granted to any Non-employee Director of the Company as
compensation for service on the Board.
6. Stock Subject to the Plan
An aggregate of 75,000 shares of Common Stock shall be reserved for
issuance pursuant to Options issued pursuant to the Plan. If any outstanding
Option under the Plan for any reason expires or is terminated without having
been exercised in full, the shares of Common Stock allocable to the unexercised
portion of such Option shall (unless the Plan shall have been terminated) become
available for subsequent issuance of Options under the Plan.
7. Terms and Conditions of Options
Each Option issued pursuant to the Plan shall be evidenced by a Stock
Option Agreement containing the terms and conditions specified in this Section
7.
(a) Grant of Options. Each Non-employee Director shall be granted an
Option to purchase 1,000 shares of Common Stock on the first day of
each calendar quarter from the date of the Plan's adoption by the Board
. Each Non-employee Director shall also be granted an Option pursuant
to the Plan for the second and third quarters of 1996 with the date of
grant being May 29, 1996 and July 1, 1996, repectively. Options for the
second and third quarters of 1996 and for each quarter until the Plan
is approved by stockholders will be granted subject to stockholder
approval.
(b) Option Exercise Price. The exercise price of each Option (the
"Option Exercise Price") shall equal the Fair Market Value of the
Common Stock on the day immediately preceding the date of grant of each
Option. The Option Exercise Price shall be subject to adjustment as
provided in Section 7(f) hereof.
(c) Term and Exercise of Options. Options shall be exercisable in whole
or in part at any time over the exercise period, but in no event shall
such period exceed three years from the date of the grant of each such
Option. The exercise period shall be subject to earlier termination as
provided in Section 7(f) below. An Option may be exercised by giving
prior written notice of such exercise to the Company and by paying the
Option Exercise Price to the Company either by delivering on the date
of exercise (i) a check in the amount of the Option Exercise Price,
(ii) Common Stock having a Fair Market Value on the day immediately
preceding the date of exercise equal to or less than the Option
Exercise Price, or (iii) a combination thereof. If the Optionee tenders
shares of Common Stock having a Fair Market Value which exceeds the
Option Exercise Price, the Company shall return to the Optionee any and
all whole shares of Common Stock which exceed the Option Exercise
- 3 -
<PAGE>
Price and the Company shall pay the Optionee any additional amount
which exceeds the Option Exercise Price in cash in lieu of issuing
the Optionee a fractional share for such amount.
(d) Vesting and Restrictions on Transferability. Options issued under
the Plan shall vest immediately upon grant and shall not be
transferable other than by will or by the laws of descent and
distribution or pursuant to a qualified domestic relations order as
defined by the Code or Title I of the Employee Retirement Income
Security Act ("ERISA") or the rules thereunder.
(e) Death or Disability of Optionee. If an Optionee shall die or become
disabled, all Options theretofore issued to such Optionee may, unless
earlier terminated in accordance with their terms, be exercised at any
time during the term of the Option by the personal representative of
the Optionee or by the person who acquired the right to exercise such
Option by bequest or inheritance or otherwise by reason of the death or
disability of the Optionee.
(f) Reclassification; Recapitalization; and Reorganizations.
(1) Dividends and Stock Splits. If there is any change in the
number of shares of Common Stock through the declaration of
stock dividends, recapitalization resulting in stock splits,
or combinations or exchanges of such shares, then the number
of shares of Common Stock available for Options, the number of
such shares covered by outstanding Options and the Option
Exercise Price shall be proportionately adjusted to reflect
any increase or decrease in the number of issued shares of
Common Stock; provided, however, that any fractional shares
resulting from such adjustment shall be eliminated.
(2) Spin-Offs and Liquidations. In the event of the proposed
dissolution or liquidation of the Company, or in the event of
any corporate separation or division, including, but not
limited to, a split-up, a split-off or spin-off, each Option
granted under the Plan shall terminate as of a date to be
fixed by the Board, provided, however, that no less than
thirty (30) days' written notice of the date so fixed shall be
given to each Optionee, who shall have the right during the
period of thirty (30) days preceding such termination, to
exercise the Options as to all or any part of the shares of
Common Stock covered thereby.
(3) Reorganizations. If, while unexercised Options remain
outstanding under the Plan, the Company executes a definitive
Reorganization agreement, the Committee may provide that each
Option granted under the Plan shall (i) terminate as of a date
to be fixed by the Board, provided, however, that no less than
thirty (30) days' written notice of the date so fixed shall be
given to each Optionee, who shall have the right, during the
period of thirty (30) days preceding such termination, to
exercise the Options as to all or any part of the shares of
Common Stock covered thereby or (ii) remain outstanding and be
adjusted so that on exercise the Optionee shall receive the
securities, cash or property that would have been issued with
respect to the shares of Common Stock had the Option been
exercised immediately prior to the Reorganization. The
Committee may also, in its discretion, permit the cancellation
of outstanding Options in exchange for a cash payment to the
Optionee equal to the difference between the exercise price of
the Option and the value of the consideration that would have
been paid had the Option been exercised immediately prior to
the Reorganization.
- 4 -
<PAGE>
(4) Exemptions. Section 7(f) shall not apply to a
Reorganization in which the Company is the surviving
corporation and shares of Common Stock are not converted into
or exchanged for stock, securities of any other corporation,
cash or any other thing of value. Notwithstanding the
preceding sentence, in case of any Reorganization in which the
Company is the continuing corporation and in which there is a
reclassification or change (including a change to the right to
receive cash or other property) of the shares of Common Stock
(other than a change in par value, or from par value to no par
value, or as a result of a subdivision or combination, but
including any changes in such shares into two or more classes
or series of shares), the Committee may provide that the
holder of each Option then exercisable shall have the right
to exercise such Option solely for the kind and amount of
shares of stock and other securities (including those of
any new direct or indirect Parent of the Company),
property, cash or any combination thereof receivable by the
holder of the number of shares of Common Stock for which such
Option might have been exercised upon such Reorganization or
reclassification. In the event of a change in the Common Stock
as presently constituted, which is limited to a change of all
of its authorized shares with par value into the same number
of shares with a different par value or without par value, the
shares resulting from any such change shall be deemed to be
the Common Stock within the meaning of the Plan. Except as
herein expressly provided, the Optionee shall have no rights
by reason of any subdivision or consolidation of shares of
stock of any class or the payment of any stock dividend or any
other increase or decrease in the number of shares of stock of
any class or by reason of any dissolution, liquidation, or
Reorganization, and any assurance by the Company of shares of
stock of any class, or securities convertible into shares of
stock of any class, and no adjustment by reason thereof shall
be made with respect to the number of shares of Common Stock
subject to an Option or to the Option Price. The grant of an
Option pursuant to the Plan shall not affect in any way the
right or power of the Company to make adjustments,
reclassifications, Reorganizations or changes of its capital
or business structure or to merge or to consolidate or to
dissolve, liquidate or sell, or transfer all or any part of
its business or assets.
8. Rights as a Shareholder
No Optionee shall have any rights as a shareholder with respect to any
shares until the stock certificate evidencing such shares has been issued
evidencing such shares. No adjustments shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or distributions
or other rights for which the record date is prior to the date such stock
certificate is issued, except as provided in Section 7(f) hereof.
9. General Restrictions
(a) Investment Representations. The Company may require an Optionee to
give written assurances in substance and form satisfactory to the
Company to the effect that such person is acquiring the Common Stock
for his or her own account for investment and not with any present
intention of selling or otherwise distributing the same, and to such
other effect as the Company deems necessary or appropriate in order to
comply with applicable federal and applicable state securities laws.
- 5 -
<PAGE>
(b) Compliance with Securities Laws. Each Option shall be subject to
the requirement that if, at any time, counsel to the Company shall
determine that the listing, registration or qualification of the shares
subject thereto on any securities exchange or any state or federal law,
or the consent or approval of any governmental or regulatory body, is
necessary as a condition of, or in connection with, the issuance of
Options, such Options may not be sold or exercised, in whole or in
part, unless such listing, registration, qualification, consent or
approval shall have been effected or obtained on conditions acceptable
to the Board. The Company plans to register the shares subject to the
Options on a Form S-8 Registration Statement. However, nothing herein
shall be deemed to require the Company to obtain an effective Form S-8
Registration Statement or to apply for or to obtain any listing,
registration or qualification of the Options or Common Stock to be
issued pursuant thereto.
10. Amendment and Termination of the Plan
The Board may at any time and from time to time suspend, terminate,
modify or amend the Plan, provided that no suspension, termination, modification
or amendment of the Plan may adversely affect any rights under the Plan unless
the written consent of those affected is obtained.
- 6 -
<PAGE>
SILVER DINER, INC.
Stock Option Agreement
for the
1996 Non-employee Director Stock Option Plan
A stock option award (the "Stock Option" or "Award") is hereby granted
by Silver Diner, Inc., (the "Company"), to the Non-employee Director named below
("Optionee"), for and with respect to common stock of the Company, par value
$.00074 per share ("Common Stock"), subject to the following terms and
conditions:
1. Subject to the provisions set forth herein and the provisions of the
1996 Non-employee Director Stock Option Plan (the "Plan"), the provisions of
which are hereby incorporated by reference, and in consideration of the
agreements of Optionee provided in this Stock Option Agreement (the "Option
Agreement"), the Company hereby grants to Optionee a Stock Option to purchase
from the Company the number of shares of Common Stock, at the exercise price and
on the schedule, all as set forth below.
Name of Optionee:
Date of Grant:
Option Exercise Price:
Number of Shares of Common
Stock Subject to Stock Option:
Expiration Date:
2. Written notice of an election to exercise any portion of the Award
specifying the portion thereof being exercised and the exercise date, shall be
given by Optionee, or his legal representative, (a) by delivering such notice at
the principal executive offices of the Company no later than the exercise date,
or (b) by mailing such notice, postage prepaid, addressed to the Secretary of
the Company at the Company's principal executive offices at least three business
days prior to the exercise date.
3. Neither Optionee nor any other person entitled to exercise the Stock
Option under the terms hereof shall be, or have any of the rights or privileges
of, a shareholder of the Company in respect of any Common Stock issuable on
exercise of the Stock Option, until the date of the issuance of a stock
certificate for such Common Stock.
4. If the Award shall be exercised in whole, this Option Agreement
shall be surrendered to the Company for cancellation. If the Award shall be
exercised in part, or a change in the number or designation of the Common Stock
shall be made, this Option Agreement shall be delivered to the Company for the
purpose of making appropriate notation thereon, or of otherwise reflecting, in
such manner as the Company shall determine, the partial exercise or the change
in the number or designation of the Common Stock.
5. The grant of the Award hereunder shall not be deemed to give the
Optionee the right to be retained as a Non-employee Director of the Company or
to affect the right of the Company to discharge the Optionee at any time.
6. The Award shall be exercised in accordance with such administrative
regulations as the Board shall from time to time adopt.
<PAGE>
7. The Award and this Option Agreement shall be construed, administered
and governed in all respects under and by the laws of the State of Delaware,
without giving effect to principles of conflict of laws.
8. The Award and this Option Agreement are subject to the requirement
that the shareholders of the Company approve and ratify the adoption of the Plan
no later than __________________, 199_.
SILVER DINER, INC.
By:__________________________________
Name:
Title:
- 2 -
EXHIBIT 4(b)
SILVER DINER, INC.
1996 Consultant Stock Option and Stock Purchase Plan
The following constitute the provisions of the Company's 1996
Consultant Stock Option and Stock Purchase Plan.
1. Purpose
The purpose of the Plan is to provide an investment opportunity to the
Company's Consultants by providing them with the opportunity to purchase (i)
Options to purchase shares of Common Stock in the Company, or (ii) shares of
Common Stock in the Company, and apply a portion of the fees otherwise payable
to them by the Company to pay the purchase price for such Options or Common
Stock.
2. Definitions
As used in this Plan, the following words and phrases shall have the
meanings indicated:
(a) "Board" shall mean the Company's Board of Directors.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "Common Stock" shall mean the shares of common stock, $.00074
par value, of the Company.
(d) "Company" shall mean Silver Diner, Inc., and its Subsidiaries.
(e) "Consultant" shall mean any person who provides services to the
Company including lawyers, contractors, engineers, architects,
accountants, public relation specialists, and other persons providing
services to the Company, but who is not an employee of the Company. A
director of the Company may be a consultant if he/she otherwise
provides consulting services to the Company and is not an employee of
the Company.
(f) "Election to Purchase Common Stock" shall mean the notice delivered
to the Company by the Consultant pursuant to which the Consultant
elects to purchase Common Stock under the Plan, which notice shall be
on the form attached hereto as Exhibit A.
(g) "Election to Purchase Options" shall mean the notice delivered to
the Company pursuant to which the Consultant elects to purchase Options
pursuant to this Plan, which notice shall be on the form attached
hereto as Exhibit A.
(h) "Fair Market Value" shall mean the closing price of a share of the
Common Stock as reported on the Nasdaq National Market System, or (ii)
if the shares of such Common Stock are not then listed on the Nasdaq
National Market System, the closing price per share of the Common Stock
on the principal national securities exchange, if any, on which the
shares of Common Stock shall then be listed, or (iii) if the shares of
such Common Stock are not then listed on a national securities
exchange, the closing price per share of Common Stock entered on a
national inter-dealer quotation system, or (iv) if no closing or last
sales price per share of Common Stock is entered on a national
inter-dealer quotation system, the average of the closing bid and asked
prices for the shares of such Common Stock in the over-the-counter
market, or (v) if no price can be determined under the preceding
alternatives, then the price per share as most recently determined by
the Board, which
<PAGE>
shall, if the price is not determined under any one of the preceding
alternatives, make such determination of the Fair Market Value at
least once each month.
(i) "Form S-8 Registration Statement" shall mean a registration
statement filed on Form S-8 with and declared effective by the
Securities and Exchange Commission under the Securities Act covering
the offer and sale of the Options and shares of Common Stock pursuant
to the Plan.
(j) "Option" shall mean any option issued pursuant to this Plan.
(k) "Optionee" shall mean any person to whom an Option or Common Stock
is sold under this Plan.
(l) "Parent" shall mean any corporation (other than the Company) in
an unbroken chain of corporations ending with the Company if, at the
time of the sale of an Option, each of the corporations other
than the Company owns stock possessing fifty percent (50%) or more of
the total combined voting power of all classes of stock in one of
the other corporations in such chain.
(m) "Plan" shall mean this 1996 Consultant Stock Option and Stock
Purchase Plan.
(n) "Reorganization" shall mean any merger, reorganization,
consolidation or sale of all or substantially all of the Company's
assets.
(o) "Registered" shall mean a Form S-8 Registration Statement shall
be in effect covering the offer and sale of the Options and shares
of Common Stock pursuant to the Plan.
(p) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(q) "Stock Option Agreement" shall mean the agreement evidencing
the Options sold to Optionees pursuant to the Plan containing the terms
and conditions specified in Section 8 below and on the form attached
hereto as Exhibit B.
(r) "Stock Purchase Agreement" shall mean the agreement evidencing
the Common Stock sold to Optionees pursuant to the Plan containing
the terms and conditions specified in Section 9 below and on the
form attached hereto as Exhibit C.
(s) "Subsidiary" shall mean any corporation (other than the Company)
in an unbroken chain of corporations beginning with the Company if, at
the time of the sale of an Option, each of the corporations, other than
the last corporation in the unbroken chain owns stock possessing
fifty percent (50%) or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.
3. General Administration
The Plan shall be administered by a committee (the "Committee"),
consisting of not less than two non-employee members of the Board. The Committee
shall have the authority in its discretion to administer the Plan and to
interpret the Plan and to prescribe, amend and rescind rules and regulations
relating to the operation of the Plan and to make all other determinations
deemed necessary or advisable for the administration of the Plan; provided,
however, that the Committee may not alter, amend or modify the express
provisions of the Plan. The Board shall fill all vacancies, however caused, in
the Committee. The
-2-
<PAGE>
Board may from time to time appoint additional members to the Committee, and
may at any time remove one or more Committee members and substitute
others. No member of the Board or the Committee shall be liable for any action
taken or determination made in good faith with respect to the Plan or any action
taken thereunder.
4. Term of Plan
The Plan became effective upon its adoption by the Company's Board on
September 11, 1996, and shall continue in effect for a term of ten (10) years
unless sooner terminated under Section 13 hereof. Any Options outstanding under
the Plan on such date shall continue to be exercisable pursuant to their terms,
except with respect to Options as provided in Section 8(g) hereof.
5. Eligibility
Options and shares of Common Stock may be sold to any Consultant of the
Company providing bona fide services to the Company, which services are not in
connection with the offer or sale of securities in a capital raising transaction
as provided by Instruction A(1)(a) of the Form S-8 Registration Statement. Each
Consultant may elect to purchase Options having the terms specified in Section 8
below, or to acquire shares of Common Stock on the terms specified in Section 9
below. The election once made shall be irrevocable until a new election has been
made and the appropriate form has be delivered to the Company.
6. Stock Subject to the Plan
An aggregate of 100,000 shares of Common Stock shall be reserved for
issuance pursuant to Options or shares of common Stock issued pursuant to the
Plan; provided, however, that not more than 25,000 Options and shares of common
Stock may be sold to Consultants who are directors of the Company. The
limitation established by the preceding sentence shall be subject to adjustment
as provided in Section 8(g) below. If any outstanding Option under the Plan for
any reason expires or is terminated without having been exercised in full, the
shares of Common Stock allocable to the unexercised portion of such Option shall
(unless the Plan shall have been terminated) become available for subsequent
issuance of Options or Common Stock under the Plan.
7. Purchase of Option or Common Stock
A Consultant desiring to purchase Options or shares of Common Stock by
applying all or part of the consulting fee otherwise payable by the Company to
the Consultant shall execute the Election to Purchase Options or the Election to
Purchase Common Stock and deliver such notice to the Company. The Consultant
executing and delivering such notice shall have elected to purchase monthly the
number of Options or shares of Common Stock specified on such notice until such
election has been rescinded by written notice delivered to the Company. In no
event may an election be revoked until the end of a calendar quarter.
8. Terms and Conditions of Options
Each Option issued pursuant to the Plan shall be evidenced by a Stock
Option Agreement containing the terms and conditions specified in this Section
8.
(a) Election to Purchase Options. Prior to purchasing each Option,
the Optionee shall provide the Company with an Election to Purchase
Options in the form attached hereto as Exhibit A.
- 3 -
<PAGE>
(b) Option Purchase Price. Each Option shall be issued to the
Consultant on payment of a purchase price equal to the amount
determined on the first day of each calendar quarter pursuant to the
Black-Scholes methodology (the "Option Purchase Price") which amount
shall be paid in full, at the time of issuance of the Option, by
reducing the amount otherwise payable by the Company to the Consultant
in payment of consulting fees owed by the Company to the Consultant for
services rendered to the Company during the previous calendar quarter.
Such Option shall be subject to the terms and conditions specified in
this Section 8.
(c) Option Exercise Price. The exercise price of each Option (the
"Option Exercise Price") shall equal the Fair Market Value of a share
of Common Stock on the first day of each calendar quarter. The Option
Exercise Price shall be subject to adjustment as provided in Section
8(g) hereof.
(d) Term and Exercise of Options. Options shall be exercisable in whole
or in part at any time over the exercise period, but in no event shall
such period exceed three years from the date of the grant of each such
Option. The exercise period shall be subject to earlier termination as
provided in Section 8(g) below. An Option may be exercised by giving
prior written notice of such exercise to the Company; provided that an
Option may not be exercised at any one time as to less than 100 shares,
or such number presently covered by Options if less than 100 shares,
which amount may be reduced by the Committee in its discretion. The
Option Exercise Price will be payable, at the discretion of the
Consultant by delivering on the date of exercise (i) a check in the
amount of the Option Exercise Price, (ii) Common Stock having a Fair
Market Value on the day immediately preceding the date of exercise
equal to, or less than, the Option Exercise Price, or (iii) a
combination thereof. If the Optionee tenders shares of Common Stock
having a Fair Market Value which exceeds the Option Exercise Price, the
Company shall return to the Optionee any and all whole shares of Common
Stock which exceed the Option Exercise Price and the Company shall pay
the Optionee any additional amount which exceeds the Option Exercise
Price in cash in lieu of issuing the Optionee a fractional share for
such amount.
(e) Vesting and Restrictions on Transferability. Options issued under
the Plan shall vest immediately upon purchase and shall not be
transferable other than by will or by the laws of descent and
distribution or pursuant to a qualified domestic relations order as
defined by the Code or Title I of the Employee Retirement Income
Security Act ("ERISA") or the rules thereunder.
(f) Death or Disability of Optionee. If an Optionee shall die or become
disabled, all Options theretofore issued to such Optionee may, unless
earlier terminated in accordance with their terms, be exercised at any
time during the term of the Option by the personal representative of
the Optionee or by the person who acquired the right to exercise such
Option by bequest or inheritance or otherwise by reason of the death or
disability of the Optionee.
(g) Reclassification; Recapitalization; and Reorganizations.
(1) Dividends and Stock Splits. If there is any change in the
number of shares of Common Stock through the declaration of
stock dividends, recapitalization resulting in stock splits,
or combinations or exchanges of such shares, then the number
of shares of Common Stock available for Options, the number of
such shares covered by outstanding Options, the Option
Purchase Price and the Option Exercise Price shall be
proportionately adjusted to reflect any increase or decrease
in the number of issued shares of Common Stock; provided,
however, that any fractional shares resulting from such
adjustment shall be eliminated.
- 4 -
<PAGE>
(2) Spin-Offs and Liquidations. In the event of the proposed
dissolution or liquidation of the Company, or in the event of
any corporate separation or division, including, but not
limited to, a split-up, a split-off or spin-off, each Option
granted under the Plan shall terminate as of a date to be
fixed by the Board, provided, however, that no less than
thirty (30) days' written notice of the date so fixed shall be
given to each Optionee, who shall have the right during the
period of thirty (30) days preceding such termination, to
exercise the Options as to all or any part of the shares of
Common Stock covered thereby.
(3) Reorganizations. If, while unexercised Options remain
outstanding under the Plan, the Company executes a definitive
Reorganization agreement, the Committee may provide that each
Option granted under the Plan shall (i) terminate as of a date
to be fixed by the Board, provided, however, that no less than
thirty (30) days' written notice of the date so fixed shall be
given to each Optionee, who shall have the right, during the
period of thirty (30) days preceding such termination, to
exercise the Options as to all or any part of the shares of
Common Stock covered thereby or (ii) remain outstanding and be
adjusted so that on exercise the Optionee shall receive the
securities, cash or property that would have been issued with
respect to the shares of Common Stock had the Option been
exercised immediately prior to the Reorganization. The
Committee may also, in its discretion, permit the cancellation
of outstanding Options in exchange for a cash payment to the
Optionee equal to the difference between the exercise price of
the Option and the value of the consideration that would have
been paid had the Option been exercised immediately prior to
the Reorganization.
(4) Exemptions. Section 8(g) shall not apply to a
Reorganization in which the Company is the surviving
corporation and shares of Common Stock are not converted into
or exchanged for stock, securities of any other corporation,
cash or any other thing of value. Notwithstanding the
preceding sentence, in case of any Reorganization in which the
Company is the continuing corporation and in which there is a
reclassification or change (including a change to the right to
receive cash or other property) of the shares of Common Stock
(other than a change in par value, or from par value to no par
value, or as a result of a subdivision or combination, but
including any changes in such shares into two or more classes
or series of shares), the Committee may provide that the
holder of each Option then exercisable shall have the right to
exercise such Option solely for the kind and amount of shares
of stock and other securities (including those of any new
direct or indirect Parent of the Company), property, cash or
any combination thereof receivable by the holder of the number
of shares of Common Stock for which such Option might have
been exercised upon such Reorganization or reclassification.
In the event of a change in the Common Stock as presently
constituted, which is limited to a change of all of its
authorized shares with par value into the same number of
shares with a different par value or without par value, the
shares resulting from any such change shall be deemed to be
the Common Stock within the meaning of the Plan. Except as
herein expressly provided, the Optionee shall have no rights
by reason of any subdivision or consolidation of shares of
stock of any class or the payment of any stock dividend or any
other increase or decrease in the number of shares of stock of
any class or by reason of any dissolution, liquidation, or
Reorganization, and any assurance by the Company of shares of
stock of any class, or securities convertible into shares of
stock of any class, and no adjustment by reason thereof shall
be made with respect to the number of shares of Common Stock
subject to an Option or to the Option Price. The grant of an
Option pursuant to the Plan shall not affect in any way the
right or power of the Company to make adjustments,
reclassifications, Reorganizations or changes of its capital
or business structure
- 5 -
<PAGE>
or to merge or to consolidate or to dissolve, liquidate or
sell, or transfer all or any part of its business or assets.
(h) Consulting Fees for Services Through December 31, 1996. Consultants
may elect to purchase Options by applying amounts otherwise payable to
them by the Company for consulting services rendered through December
31, 1996. The Option Purchase Price and the Option Exercise Price for
such services shall equal the Fair Market Value of a share of the
Common Stock on December 31, 1996.
9. Terms and Conditions of Stock Purchase
Each share of Common Stock issued pursuant to the Plan shall be
evidenced by the Stock Purchase Agreement containing the terms and conditions
specified in this Section 9.
(a) Election to Purchase Common Stock. Prior to the Optionee's
purchase of any shares of Common Stock pursuant to the Plan, the
Optionee shall provide the Company with an Election to Purchase Common
Stock in the form attached hereto as Exhibit A.
(b) Stock Purchase Price. The Optionee shall purchase the number of
shares of Common Stock set forth on the Election to Purchase Common
Stock at a purchase price equal to the Fair Market Value of a share of
Common Stock on the first or last day of each calendar quarter,
whichever is lower. However, if the Optionee executes an Election to
Purchase Common Stock during a calendar quarter, the purchase price
shall equal the Fair Market Value of a share of Common Stock on the
date the Optionee executes the Election to Purchase Common Stock or the
last day of such calendar quarter, whichever is lower. The Optionee
shall pay the purchase price for such share of Common Stock by applying
the amount otherwise owed by the Company to the Consultant for
consulting services rendered to the Company during the calendar
quarter. The shares of Common Stock shall be issued as promptly as
possible following closing of the calendar quarter.
(c) Consulting Fees for Services Through December 31, 1996. Consultants
may elect to purchase Common Stock by applying amounts otherwise
payable to them by the Company for consulting services rendered through
December 31, 1996. The Stock Purchase Price for such services shall
equal the Fair Market Value of a share of Common Stock on December 31,
1996.
(d) Restrictions on Transferability. The Common Stock issued upon the
exercise of an Election to Purchase Common Stock is not subject to any
transfer restrictions except those mandated by applicable federal and
state securities laws.
10. Agreement by Optionee Regarding Withholding Taxes
The Company shall, to the extent required by law, have the right to
deduct from any payment of any kind otherwise due to the Consultant any federal,
state or local taxes of any kind required by law to be withheld upon the
purchase or exercise of any Option or the purchase of any shares of Common Stock
pursuant to the Plan and the Consultant agrees to pay to the Company, or make
arrangements satisfactory to the Committee regarding payment, any federal, state
or local taxes of any kind required by law to be withheld under or pursuant to
this Plan.
- 6 -
<PAGE>
11. Rights as a Shareholder
No Optionee shall have any rights as a shareholder with respect to any
shares until the stock certificate evidencing such shares has been issued
evidencing such shares. No adjustments shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or distributions
or other rights for which the record date is prior to the date such stock
certificate is issued, except as provided in Section 8(g) hereof with respect to
Options.
12. General Restrictions
(a) Investment Representations. The Company may require any person to
whom Options or shares are sold pursuant to the Plan, as a condition of
sale, to give written assurances in substance and form satisfactory to
the Company to the effect that such person is acquiring the Common
Stock for his or her own account for investment and not with any
present intention of selling or otherwise distributing the same, and
to such other effect as the Company deems necessary or
appropriate in order to comply with applicable federal and applicable
state securities laws.
(b) Compliance with Securities Laws. Each Option or share of Common
Stock purchased pursuant to the Plan shall be subject to the
requirement that if, at any time, counsel to the Company shall
determine that the listing, registration or qualification of the shares
subject thereto on any securities exchange or any state or federal law,
or the consent or approval of any governmental or regulatory body, is
necessary as a condition of, or in connection with, the issuance or
purchase of the Options or Common Stock, such Options or Common Stock
may not be sold or exercised, in whole or in part, unless such listing,
registration, qualification, consent or approval shall have been
effected or obtained on conditions acceptable to the Board. The Company
plans to register the shares subject to the Plan on a Form S-8
Registration Statement so that the shares issued thereunder may be sold
following expiration of any restrictions set forth in the Election to
Purchase Options or in the Election to Purchase Common Stock. Nothing
herein shall be deemed to require the Company to obtain an effective
Form S-8 Registration Statement or to apply for or to obtain any
listing, registration or qualification of the Options or Common Stock
to be issued pursuant thereto.
13. Amendment and Termination of the Plan
The Board may at any time and from time to time suspend, terminate,
modify or amend the Plan, provided that no suspension, termination, modification
or amendment of the Plan may adversely affect any rights under the Plan unless
the written consent of those affected is obtained.
- 7 -
<PAGE>
SILVER DINER, INC.
Election to Purchase Common Stock
under the
1996 Consultant Stock Option and Stock Purchase Plan
(To be executed and returned upon purchase of Common Stock)
The consultant named below (the "Consultant") hereby elects and agrees
that ____% of the consulting fees otherwise payable by Silver Diner, Inc. (the
"Company") to the Consultant for services rendered to the Company, from
___________ __, 199_ until the election has been rescinded, will be applied as
payment of the purchase price for shares of the Company's common stock, par
value $.00074 per share ("Common Stock"), pursuant to the terms of 1996
Consultant Stock Option and Stock Purchase Plan ("Plan") between the Company and
the Consultant.
The Consultant agrees to receive compensation as set forth above until
such election has been rescinded by the Consultant by means of written notice
delivered to the Company. The Consultant understands and agrees that in no event
may the Election to Purchase Common Stock be revoked until the end of a calendar
quarter.
The Consultant further understands and agrees that following the
Consultant's written election to withdraw the Election to Purchase Common Stock,
the Consultant will not be eligible to participate in the Plan until another
Election to Purchase Common Stock, or an Election to Purchase Options is
executed by the Consultant and delivered to the Company.
The Consultant acknowledges the receipt of the Plan prior to the
execution of this Election to Purchase Common Stock and understands that the
Company shall provide the Consultant with a Stock Purchase Agreement as promptly
as possible following each calendar quarter.
Dated: __________________ ________________________________
Consultant
By: _____________________________
Name:
Title:
Receipt of this Election to Purchase Common Stock acknowledged by Silver Diner,
Inc.
Dated: __________________ By: _____________________________
Name:
Title:
<PAGE>
SILVER DINER, INC.
Election to Purchase Options
under the
1996 Consultant Stock Option and Stock Purchase Plan
(To be executed and returned upon purchase of Options)
The consultant named below (the "Consultant") hereby elects and agrees
that ____% of the consulting fees otherwise payable by Silver Diner, Inc. (the
"Company") to the Consultant for services rendered to the Company, from
___________ __, 199_ until the election has been rescinded, will be applied as
payment of the purchase price for an option (the "Option") to purchase shares of
the Company's common stock, par value $.00074 per share ("Common Stock"),
pursuant to the terms of 1996 Consultant Stock Option and Stock Purchase Plan
("Plan") between the Company and the Consultant.
The Consultant agrees to receive compensation as set forth above until
such election has been rescinded by the Consultant by means of written notice
delivered to the Company. The Consultant understands and agrees that in no event
may the Election to Purchase Options be revoked until the end of a calendar
quarter and understands and agrees that consulting fees for services rendered to
the Company during a calendar quarter will be applied as payment of the purchase
price for an Option to purchase shares of Common Stock equal to the amount
determined on the first day of the following calendar quarter pursuant to the
Black-Shoals methodology.
The Consultant further understands and agrees that following the
Consultant's written election to withdraw the Election to Purchase Options, the
Consultant will not be eligible to participate in the Plan until another
Election to Purchase Options or an Election to Purchase Common Stock is executed
by the Consultant and delivered to the Company.
The Consultant acknowledges the receipt of the Plan prior to the
execution of this Election to Purchase Options and understands that the Company
shall provide the Consultant with a Stock Option Agreement as promptly as
possible following each calendar quarter.
Dated: __________________ ________________________________
Consultant
By: _____________________________
Name:
Title:
Receipt of this Election to Purchase Options acknowledged by Silver Diner, Inc.
Dated: __________________ By: _____________________________
Name:
Title:
<PAGE>
SILVER DINER, INC.
Stock Purchase Agreement
for the
1996 Consultant Stock Option and Stock Purchase Plan
Silver Diner, Inc., (the "Company"), hereby agrees to sell to the
consultant named below (the "Consultant") common stock of the Company, par value
$.00074 per share ("Common Stock"), subject to the following terms and
conditions:
1. Subject to the provisions set forth herein and the provisions of the
1996 Consultant Stock Option and Stock Purchase Plan (the "Plan"), the
provisions of which are hereby incorporated by reference, and in consideration
of the agreements of the Consultant provided in this Stock Purchase Agreement
(the "Purchase Agreement"), the Company hereby sells to the Consultant the
number of shares of Common Stock, at the purchase price and on the schedule, all
as set forth below.
Name of Purchaser:
Date of Purchase:
Stock Purchase Price:
2. The Common Stock issued pursuant to this Agreement is not subject to
any transfer restrictions except those mandated by applicable federal and state
securities laws.
3. The purchase of Common Stock pursuant to this Agreement is
conditioned upon the acceptance by the Consultant of the terms hereof as
evidenced by his execution of this Purchase Agreement in the space provided
therefor at the end hereof and the return of an executed copy to the Secretary
of the Company.
4. The Consultant will acquire and hold the shares of Common Stock
purchased for his own account for investment and not with the view to the resale
or distribution thereof, except for resales or distributions in accordance with
applicable securities laws, and the Consultant will not, at any time, directly
or indirectly, offer, sell, distribute, pledge, or otherwise grant a security
interest in or otherwise dispose of or transfer all, any portion of or any
interest in, the Common Stock (or solicit an offer to buy, take in pledge or
otherwise acquire or receive, all or any portion thereof), except in accordance
with applicable securities laws.
5. The Consultant has received and reviewed a description of the Common
Stock of the Company and a copy of the Plan and has had the opportunity to ask
questions of, and receive answer from, the officers and representatives of the
Company concerning all material information concerning the Company and the terms
and conditions of the transactions in which the Consultant is acquiring shares
of the Common.
6. The Consultant's purchase of the shares of Common Stock shall be
exercised in accordance with such administrative regulations as the committee
administering the Plan shall from time to time adopt.
7. This Purchase Agreement shall be construed, administered and
governed in all respects under and by the laws of the State of Delaware, without
giving effect to principles of conflict of laws.
SILVER DINER, INC.
By:__________________________________
Name:
Title:
<PAGE>
SILVER DINER, INC.
Stock Option Agreement
for the
1996 Consultant Stock Option and Stock Purchase Plan
A stock option (the "Stock Option") is hereby sold by Silver Diner,
Inc., (the "Company"), to the consultant named below ("Optionee"), for and with
respect to common stock of the Company, par value $.00074 per share ("Common
Stock"), subject to the following terms and conditions:
1. Subject to the provisions set forth herein and the provisions of the
1996 Consultant Stock Option and Stock Purchase Plan (the "Plan"), the
provisions of which are hereby incorporated by reference, and in consideration
of the agreements of Optionee provided in this Stock Option Agreement (the
"Option Agreement"), the Company hereby sells to Optionee a Stock Option to
purchase from the Company the number of shares of Common Stock, at the purchase
price and exercise price, and on the schedule, all as set forth below.
Name of Optionee:
Date of Grant:
Option Purchase Price:
Option Exercise Price:
Number of Shares of Common
Stock Subject to Stock Option:
Expiration Date:
2. Written notice of an election to exercise any portion of the Stock
Option specifying the portion thereof being exercised and the exercise date,
shall be given by Optionee, or his legal representative, (a) by delivering such
notice at the principal executive offices of the Company no later than the
exercise date, or (b) by mailing such notice, postage prepaid, addressed to the
Secretary of the Company at the Company's principal executive offices at least
three business days prior to the exercise date.
3. Neither Optionee nor any other person entitled to exercise the Stock
Option under the terms hereof shall be, or have any of the rights or privileges
of, a shareholder of the Company in respect of any Common Stock issuable on
exercise of the Stock Option, until the date of the issuance of a stock
certificate for such Common Stock.
4. If the Stock Option shall be exercised in whole, this Option
Agreement shall be surrendered to the Company for cancellation. If the Stock
Option shall be exercised in part, or a change in the number or designation of
the Common Stock shall be made, this Option Agreement shall be delivered by
Optionee to the Company for the purpose of making appropriate notation thereon,
or of otherwise reflecting, in such manner as the Company shall determine, the
partial exercise or the change in the number or designation of the Common Stock.
5. The grant of the Stock Option hereunder shall not be deemed to give
the Optionee the right to be retained as a Consultant of the Company.
<PAGE>
6. The Stock Option shall be exercised in accordance with such
administrative regulations as the Board shall from time to time adopt.
7. The Stock Option and this Option Agreement shall be construed,
administered and governed in all respects under and by the laws of the State of
Delaware, without giving effect to principles of conflict of laws.
SILVER DINER, INC.
By:__________________________________
Name:
Title:
- 2 -
EXHIBIT 5
[Arent Fox Letterhead]
December 20, 1996
The Board of Directors
Silver Diner, Inc.
11806 Rockville Pike
Rockville, Maryland 20852
Gentlemen:
We have acted as counsel to Silver Diner, Inc. , (the "Company"), with
respect to the Company's Registration Statement on Form S-8, filed by the
Company with the Securities and Exchange Commission (the "Commission") in
connection with the registration under the Securities Act of 1933, as amended,
of (i) 75,000 shares of Common Stock, $.00074 par value (the "Shares"), subject
to the Silver Diner, Inc. 1996 Non-employee Director Stock Option Plan (the
"Non-employee Director Plan"), (ii) 100,000 Shares subject to the Silver Diner,
Inc. 1996 Consultant Stock Option and Stock Purchase Plan (the "Consultant
Plan") and (iii) 100,000 options to purchase one Share (the "Options") subject
to the Consultant Plan.
As counsel to the Company, we have examined the Company's Certificate
of Incorporation and such records, certificates and other documents of the
Company, as well as relevant statutes, regulations, published rulings and such
questions of law, as we considered necessary or appropriate for the purpose of
this opinion.
Based on the foregoing, we are of the opinion that the 75,000 Shares
subject to the Non-employee Director Plan, when issued and paid for in
accordance with the terms of the Non-employee Director Plan, and the 100,000
Shares and 100,000 Options subject to the Consultant Plan, when issued and paid
for in accordance with the terms of the Consultant Plan, will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to all references to our firm in the Registration
Statement. In giving this consent, we do not hereby admit that we come within
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the General Rules and Regulations thereunder.
Very truly yours,
ARENT FOX KINTNER PLOTKIN & KAHN
By: /s/ Arnold R. Westerman
------------------------------
Arnold R. Westerman
EXHIBIT 23(a)
[Reznick Fedder Letterhead]
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated April 2, 1996, related to
the combined financial statements of Silver Diner Development, Inc., Silver
Diner Limited Partnership and Silver Diner Potomac Mills, Inc., as of December
31, 1995 and January 1, 1995 and for each of the three years in the period ended
December 31, 1995, which was contained in the Registration Statmnt on Form S-3
(File No. 333-09735) filed with the Commission on August 7, 1996 and declared
effective by the Commission on August 14, 1996.
REZNICK FEDDER & SILVERMAN
By: \s\ Kirk T. Rogers
---------------------
Bethesda, Maryland
December 19, 1996
EXHIBIT 23(b)
[KPMG Peat Marwick Letterhead]
We consent to incorporation by reference in the Registration Statement
on Form S-8 of Silver Diner, Inc. of our report dated March 28, 1996, relating
to the consolidated balance sheets of Food Trends Acquisition Corporation and
subsidiary as of December 31, 1995, and 1994, and the related consolidated
statements of operations, stockholders' equity, and cash flows for the year
ended December 31, 1995 and the period from April 21, 1994 (inception) to
December 31, 1994, which report appears in the Registration Statement on Form
S-3 (File No. 333-09735)
KPMG PEAT MARWICK LLP
Boston, Massachusetts
December 18, 1996
