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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934*
(Amendment No. 1)*
SILVER DINER, INC.
(Name of Issuer)
Common Stock, par value $.00074
(Title of Class of Securities)
827655 10 1
(CUSIP Number)
Mr. Robert T. Giaimo Arnold Westerman, Esq.
Silver Diner, Inc. Arent Fox Kintner Plotkin & Kahn
11806 Rockville Pike 1050 Connecticut Avenue, N.W.
Rockville, Maryland 20852 Washington, D.C. 20036-5339
301/770-0333 202/857-6243
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
April 7, 1997
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement [ ]. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
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CUSIP No. 827655 10 1 Page 2 of 2 Pages
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- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Robert T. Giaimo
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable.
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
1,486,472
NUMBER OF ----------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY --
OWNED BY
EACH ----------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 318,000
WITH
----------------------------------------------------
10 SHARED DISPOSITIVE POWER
--
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,486,472
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.8%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
This Amendment No. 1 to Schedule 13D filed by Robert T. Giaimo, with
respect to the common stock, par value $.00074 per share ("Common Shares"), of
Silver Diner, Inc., a Delaware corporation (the "Issuer"), amends the Schedule
13D filed by Mr. Giaimo on April 5, 1996 (the "Statement"). All capitalized
terms used and not defined herein shall have the meanings ascribed to them in
the Statement.
Because this is the first electronic amendment to a paper format
Schedule 13D, in accordance with Rule 101(a)(2)(ii) of Regulation S-T the
textual portion of the original Schedule 13D (without exhibits or signature
pages) is also being filed herewith electronically as Exhibit 8 to this
Amendment No. 1.
Item 5. Interest in Securities of the Issuer.
Item 5 is amended as follows:
(a) On April 7, 1997, Mr. Giaimo transferred for estate planning
purposes to his spouse, Catherine Britton (with whom he resides), for no
consideration, 1,611,154 (or approximately 13.9% of the Common Shares
outstanding as of March 19, 1997) of the 1,929,154 Giaimo Shares owned by him of
record and beneficially, including 20,003 of such shares which are subject to
the Stock Option Agreement. In addition, between January and March of 1997, Mr.
Giaimo waived his voting rights with respect to certain Common Shares owned by
other stockholders. As a result, Mr. Giaimo beneficially owns 1,486,472 Common
Shares, consisting of (i) 318,000 Giaimo Shares, (ii) 483,334 Common Shares
which are owned of record by four persons who were principals of FTAC prior to
the Merger and are subject to the FTAC Affiliate Voting and Lockup Agreement,
(iii) 130,133 Common Shares owned of record by GKN Securities Corp. and/or
certain assignees thereof, which are subject to the GKN Voting Agreement, and
(iv) 555,005 Common Shares owned of record by certain stockholders of the
Issuer, which are subject to the SDDI Voting and Lockup Agreement. These
1,486,472 shares represent approximately 12.8% of the outstanding Common Shares
as of March 19, 1997. Mr. Giaimo disclaims beneficial ownership of the Common
Shares held by Ms. Britton.
The Common Shares beneficially owned by Mr. Giaimo do not include
Common Shares, issuable upon the exercise of certain outstanding stock options
("Options"), which will be subject to the terms of Voting and Lockup Agreements
("Voting Agreements") between the holders of such Options and Mr. Giaimo.
Pursuant to the Voting Agreements, Mr. Giaimo would have the sole power to vote
the Common Shares issued upon the exercise of such Options until the earliest of
(i) March 27, 2001, (ii) an underwritten public offering by the Issuer from
which it realizes at least $15 million or (iii) if applicable, termination of
the optionee's employment with the Issuer as a result of death or incapacity. An
aggregate of 502,071 Common Shares issuable upon exercise of Options would be
subject to the Voting Agreements. Of such Options, 175,207 are currently
exercisable within 60 days of the date of this Amendment (including 128,033 with
an exercise price of less than $.01 and 47,174 with an exercise price of between
$3.60 and $4.05) and 326,864 are not exercisable within the next 60 days
(including 57,852 with an exercise price of less than $.01 and 269,012 with an
exercise price of between $3.60 and $4.05). Mr. Giaimo would have sole power to
vote the 175,208 Common Shares underlying the currently exercisable Options if
such Options were exercised.
(b) Mr. Giaimo has the sole power to vote and dispose of the 318,000
Giaimo Shares. Mr. Giaimo has the sole power to vote the 1,168,472 Common Shares
subject to the voting agreements described in the foregoing paragraph. Mr.
Giaimo is not a party to any agreement regarding the voting or disposition of
the 1,611,154 Common Shares transferred to Ms. Britton.
(c) Other than as described in clause (a) above, no transactions in
Common Shares were effected by Mr. Giaimo during the sixty days prior to the
date of this Amendment No. 1.
Item 6. Contracts, Agreements, Understandings and Relationships with
Respect to Securities of the Issuer.
The information contained in Item 5 of this Amendment No. 1 with
respect to the Voting Agreements is incorporated herein by this reference.
Item 7. Material to be Filed as Exhibits.
Exhibit 8 Schedule 13D, as filed on April 5, 1996.
Exhibit 9 Form of Voting Agreement.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Amendment is true, complete and
correct.
Date: April 15, 1997
/s/ ROBERT T. GIAIMO
------------------------
Robert T. Giaimo
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. TITLE PAGE
8 Schedule 13D, as filed on April 5, 1996.
9 Form of Voting Agreement.
EXHIBIT 8
Schedule 13D of Robert T. Giaimo, as filed on April 5, 1996
<PAGE>
Item 1. Security and Interest.
This Statement relates to the common stock, par value $0.00074 per
share ("Common Shares"), of Silver Diner Development, Inc., a Delaware
corporation (formerly known as Food Trends Acquisition Corporation) (the
"Issuer"). The principal executive offices of the Issuer are located at 11806
Rockville Pike, Rockville, Maryland 20852.
Item 2. Identity and Background.
(a) and (b) This Statement is filed by Robert T. Giaimo, a natural
person whose business address is 11806 Rockville Pike, Rockville, Maryland
20852.
(c) Mr. Giaimo is Chairman of the Board, a director and President
of the Issuer.
(d) and (e) Mr. Giaimo has not been the subject of any criminal
proceeding (excluding traffic violations or similar misdemeanors) during the
past five years, nor has Mr. Giaimo been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction within the past five
years as a result of which he was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
(f) Mr. Giaimo is a citizen of the United States.
Item 3. Source and Amount of Funds or Other Consideration.
Pursuant to an Agreement and Plan of Reorganization, dated August 29,
1995, as amended on January 25, 1996 (the "Merger Agreement"), on March 27, 1996
(the "Closing Date"), FTAC Transition Corporation, a wholly owned subsidiary of
Food Trends Acquisition Corporation ("FTAC"), was merged with and into Silver
Diner Development, Inc., a Virginia corporation ("SDDI") (the "Merger").
Pursuant to the Merger, all outstanding shares of SDDI's common stock, par value
$.10 ("SDDI Common Shares"), were converted into shares of the Issuer at a
conversion ratio of one SDDI Common Share for 33.339 Common Shares. The Merger
Agreement, designated as Exhibit 1 to this Statement, is incorporated herein by
this reference.
On March 26, 1996 (the day prior to the Closing Date), Mr. Giaimo
beneficially owned 79,477.07 SDDI Common Shares, which includes: (i) 57,864.80
SDDI Common Shares (1,929,155 Common Shares following the Merger) owned
beneficially and of record by Mr. Giaimo and acquired in 1987, including 600
SDDI Common Shares subject to option, (ii) options to purchase 1,098 SDDI Common
Shares exercisable at $135 per share at any time through August 20, 2005, and
(iii) 20,514.27 SDDI Common Shares owned beneficially by Mr. Giaimo pursuant to
a voting agreement pursuant to the terms of certain stockholders agreements
entered into in 1990 and 1992 (the "1990 and 1992 Stockholder Agreements").
Because of limitations in the Merger Agreement with respect to the number of
SDDI options which could be outstanding on the Closing Date, the 1,098 options
held by Mr. Giaimo were cancelled and/or transferred to other SDDI employees.
Mr. Giaimo also held an SDDI Senior Subordinated Convertible Promissory
<PAGE>
Note ("Note") in the principal amount of $100,000, which was convertible upon
the Merger into 25,000 Common Shares. However, Mr. Giaimo transferred the Note
prior to the Merger.
The 3,229,879 Common Shares beneficially owned by Mr. Giaimo as of
April 5, 1996, include, in addition to the 1,929,154 Common Shares owned
beneficially and of record by Mr. Giaimo (the "Giaimo Shares"), as discussed in
the preceding paragraph of this Item 3, the following: (i) 483,334 Common Shares
which are owned of record by four persons who were principals of FTAC prior to
the Merger, which are subject to a voting agreement ("FTAC Affiliate Voting and
Lockup Agreement"); (ii) 132,799 Common Shares owned of record by GKN Securities
Corp. and/or certain assignees thereof, which are subject to a voting agreement
("GKN Voting Agreement"); and (iii) 684,592 Common Shares owned of record by
certain stockholders of SDDI, subject to voting and lockup agreements ("SDDI
Voting and Lockup Agreement"). The FTAC Affiliate Voting and Lockup Agreement,
the GKN Voting Agreement and the SDDI Voting and Lockup Agreement are designated
as Exhibits 2, 3 and 4, respectively, to this Statement and are incorporated
herein by this reference.
Item 4. Purpose of Transaction.
Mr. Giaimo acquired the Giaimo Shares for investment purposes. Mr.
Giaimo was the founder, president and director of SDDI and the Merger involved,
among other things, an extraordinary corporate transaction of the Issuer, a
change in the Board of Directors (the "Board") and management of the Issuer, a
material change in the Issuer's business and a change in the Issuer's articles
of incorporation and bylaws. A complete description of the purposes and effects
of the Merger are contained in the Issuer's Prospectus dated February 1, 1996
("Prospectus"), contained in the Issuer's Registration Statement on Form S-4,
File No. 33-98846. The Prospectus is designated as Exhibit 5 to this Statement
and is incorporated herein by this reference.
Mr. Giaimo and certain other SDDI affiliates are parties to a lockup
agreement ("SDDI Affiliate Lockup Agreement") which prohibits the sale or
transfer of the Giaimo Shares for a period of 270 days from the Closing Date.
The SDDI Affiliate Lockup Agreement is designated as Exhibit 6 to this Statement
and is incorporated herein by this reference.
Pursuant to a stock option agreement between Mr. Giaimo and Clinton A.
Clark ("Stock Option Agreement"), Mr. Giaimo has granted an option to Mr. Clark
to acquire 20,003 Giaimo Shares exercisable at $3.60 per share at any time prior
to April 4, 2005. A copy of the Stock Option Agreement is attached hereto as
Exhibit 7 and incorporated herein by this reference.
Subject to the foregoing, Mr. Giaimo reserves the right to purchase
additional securities of the Issuer or to sell some or all of the Giaimo Shares
at any time in private or market transactions depending on market conditions,
his evaluation of the Issuer's business, prospects and financial condition, the
market for the Common Shares, other opportunities available to Mr. Giaimo,
prospects for Mr. Giaimo's own businesses, general economic conditions, money
and stock market conditions and other further developments.
<PAGE>
Except as described herein and in Item 6, and except for plans or
proposals of the Issuer in which Mr. Giaimo may participate in his capacity as
an officer and director of the Issuer, Mr. Giaimo has no plans or proposals
which relate to or would result in:
(a) The acquisition by any person of additional securities of the
Issuer, or the disposition of securities of the Issuer;
(b) An extraordinary corporate transaction, such as a merger,
reorganization or liquidation involving the Issuer or any of its subsidiaries;
(c) A sale or transfer of a material amount of assets of the
Issuer or of any of its subsidiaries;
(d) Any change in the present Board or management of the Issuer,
including any plans or proposals to change the number or term of directors or to
fill any existing vacancies on the Board;
(e) Any material change in the present capitalization or dividend
policy of the Issuer;
(f) Any other material change in the Issuer's business or
corporate structure;
(g) Changes in the Issuer's charter or bylaws or other actions
which may impede the acquisition of control of the Issuer by any person;
(h) Causing a class of securities of the Issuer to be delisted from a
national securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association;
(i) A class of equity securities of the Issuer becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934, as amended; or
(j) Any action similar to any of those enumerated above.
Item 5. Interest in Securities of the Issuer.
(a) Mr. Giaimo beneficially owns 3,229,879 Common Shares,
representing approximately 32.3% of the outstanding Common Shares as of April 5,
1996.
(b) Mr. Giaimo has the sole power to vote and dispose of 1,929,154
Common Shares.
(c) Other than as described in Item 3, no transactions in Common Shares
by Mr. Giaimo were effected during the sixty days prior to the date of this
Schedule.
(d) With respect to Common Shares beneficially owned by Mr.
Giaimo, other than the Giaimo Shares, the right to receive or the power to
direct the receipt of dividends from, or the
<PAGE>
proceeds from the sale of, such Common Shares is retained by the record holders
of such Common Shares.
(e) Not applicable.
Item 6. Contracts, Agreements, Understandings and Relationships
with Respect to Securities of the Issuer.
The information contained in Item 3 of this Statement with respect to
the Merger Agreement, the FTAC Affiliate Voting and Lockup Agreement, the GKN
Voting Agreement and the SDDI Voting and Lockup Agreement, and in Item 4 of this
Statement with respect to the SDDI Affiliate Lockup Agreement and Stock Option
Agreement is incorporated herein by this reference.
Under the terms of a Founder's Employment Agreement between Mr. Giaimo
and the Issuer ("Employment Agreement"), upon a termination of Mr. Giaimo's
employment under certain circumstances, the Issuer may be required to purchase
all Common Shares owned by Mr. Giaimo as of the Closing Date at fair market
value. The Employment Agreement, designated as Exhibit 8 to this Statement, is
incorporated herein by this reference.
Except as described herein or in Items 3 and 4, Mr. Giaimo does not
have any contract, arrangement, understanding or relationship (legal or
otherwise) with any person with respect to any securities of the Issuer,
including but not limited to the transfer of any of the Common Shares owned by
him, finder's fees, joint ventures, guarantees of profits, division of profits
or loss, or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits.
Exhibit 1(a) -- Agreement and Plan of Reorganization dated
August 29, 1995. Incorporated by reference
to the Issuer's Current Report of Form 8-K,
filed September 5, 1995.
Exhibit 1(b) -- First Amendment to Agreement and Plan of
Reorganization dated January 25, 1996.
Incorporated by reference to the Issuer's
Amendment No. 2 to the Registration
Statement on Form S-4, File No. 33-98846,
filed January 30, 1996.
Exhibit 2 -- FTAC Affiliate Voting and Lockup Agreement.
Incorporated by reference to the Issuer's
Current Report on Form 8-K, filed September
5, 1995.
Exhibit 3 -- GKN Voting Agreement.
Exhibit 4 -- SDDI Voting and Lockup Agreement.
Incorporated herein by reference to the
Issuer's Current Report on Form 8-K, filed
September 5, 1995.
Exhibit 5 -- Issuer's Prospectus dated February 1, 1996.
Incorporated by reference to the Issuer's
Current Report on Form 8-K, filed September
5, 1995.
<PAGE>
Exhibit 6 -- Stock Option Agreement.
Exhibit 7 -- Founder's Employment Agreement.
Incorporated by reference to the Issuer's
Current Report on Form 8-K, filed September
5, 1995.
EXHIBIT 9
Form of Voting Agreement
VOTING AND LOCKUP AGREEMENT
THIS VOTING AND LOCKUP AGREEMENT (the "Agreement") is entered into as
of this ______ day of _________, 199_ by and among Silver Diner Development,
Inc., a Virginia corporation ("SDDI"), Robert T. Giaimo ("Giaimo"), and the
undersigned SDDI optionee (the "Optionee"). Capitalized terms not defined herein
shall have the meaning assigned to them in that certain Agreement and Plan of
Reorganization among Food Trends Acquisition Corporation ("FTAC"), FTAC
Transition Corporation and SDDI, dated August 29, 1995 (the "Merger Agreement").
WHEREAS, SDDI and the Optionee are parties to that certain
_____________ Stock Option Agreement dated _____________________ (the "Option
Agreement") issued under the ____________________, which Option Agreement
provides that any SDDI Common Stock acquired upon exercise of such option (the
"Option") will be subject to the terms of that certain Consultant Stockholders'
Agreement, dated November 21, 1990 (the "Prior Agreement").
WHEREAS, at the Effective Time, (i) pursuant to the Merger Agreement,
all outstanding SDDI Common Stock will be converted ipso facto into FTAC Common
Stock and (ii) pursuant to the Option Agreement, the common stock issuable upon
exercise of the Option will be FTAC Common Stock, not SDDI Common Stock (such
resulting FTAC Common Stock under clauses (i) and (ii) shall hereinafter be
referred to as "Converted Stock");
WHEREAS, SDDI and the Optionee desire to amend the Option Agreement to
provide that any Converted Stock acquired by the Optionee on or after the
Effective Time as a result of the exercise of the Option shall be subject to the
terms of this Agreement, not the Prior Agreement.
NOW THEREFORE, in consideration of the premises set forth above and the
promises and agreements set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending legally to be bound, agree as follows:
1. This Agreement shall become effective at the Effective Time.
2. The Optionee agrees that, for the period beginning on the date, if
any, Optionee acquires Converted Stock as a result of the exercise of the Option
(provided such date is no later than 269 days after the Effective Time) and
ending 270 days after the Effective Time, such
<PAGE>
Optionee shall not, directly or indirectly, sell, assign, transfer, convey,
give, bequeath, hypothecate, grant a security interest in, otherwise encumber,
make a short sale of, loan, grant any option for the purchase of, or otherwise
dispose of, voluntarily or involuntarily (herein collectively referred to as a
"Transfer"), any Converted Stock held by such Optionee and any such Transfer or
attempted Transfer shall be void. The Optionee further agrees that in the event
that FTAC or any successor entity declares a dividend or makes a distribution on
Converted Stock payable in securities or subdivides or reclassifies the
Converted Stock or reorganizes, consolidates, or merges with or into any other
legal entity, then any securities issued to the Optionee as a result of any such
event shall be subject to this Section 2 and shall be deemed to be such
Optionee's Converted Stock for all purposes of such section; provided, however,
that all provisions of this Section 2 shall terminate immediately in the event
of such Optionee's death.
3. Optionee hereby appoints Giaimo as his proxy to exercise, in person
or by his nominees or proxies, all voting rights and powers granted to
shareholders under the Delaware General Corporation Law (the "DGCL") in respect
of any Converted Stock acquired by the Optionee as a result of the exercise of
the Option and to undertake, take part in, or consent to, any corporate or
shareholder action of any kind whatsoever that DGCL permits, including, without
limitation, voting Optionee's Converted Stock in favor of Giaimo's nominees to
the board of directors of FTAC (the "Board") and for or against any and all
other matters that may properly come before the FTAC stockholders for a vote.
This appointment of Giaimo as Optionee's proxy is irrevocable and coupled with
an interest and shall survive from the date, if any, Optionee acquires Converted
Stock until the earlier of: (a) five (5) years after the Effective Time; or (b)
Optionee's death or incapacity resulting in the termination of his employment by
SDDI or its successor; or (c) an underwritten public offering by FTAC from which
it realizes $15 million or more. In the event that FTAC or any successor entity
declares a dividend or makes a distribution on Converted Stock payable in shares
of common stock or subdivides or reclassifies the Converted Stock or reorganizes
or consolidates or merges with or into any other legal entity, then any
securities issued to Optionee as a result of any such event shall be subject to
this Section 3 and shall be deemed to be Optionee's Converted Stock for all
purposes of such section. Optionee agrees that Giaimo shall not be liable to the
Optionee for the consequences of any vote cast, or consent given, by him, or any
other action taken or omitted to be taken by him in his capacity as a
shareholder of an issuer of securities to which this Section 3 applies. The
provisions of this Section 3 shall be binding on any transferee(s) of Optionee's
Converted Stock.
4. Each certificate representing securities to which Sections 2 and/or
3 of this Agreement apply shall conspicuously bear a legend in substantially the
following form:
"The transfer of the securities represented by this certificate is
restricted under and subject to the terms of an agreement to which the
Corporation is a party, as such agreement may be amended, supplemented,
or otherwise modified from time to time (the "Agreement"). A copy of
the Agreement is on file at the Company's office. The owner of this
certificate has appointed Robert T. Giaimo as his proxy to vote the
shares represented by this certificate. This appointment is binding on
transferees. The holder of this certificate, by his acceptance hereof,
agrees to be bound by all of the provisions of the Agreement.
<PAGE>
5. The provisions of this Agreement are intended to comply with the
requirements of ss.ss. 218 (c) and (e) of the DGCL and shall be so interpreted.
6. This Agreement shall not, solely by reason of its execution and
delivery, constitute the formation of a group for holding, owning, and trading
in securities, or for any other purpose.
7. The parties hereto hereby agree that as of the Effective Time any
Converted Stock acquired by the Optionee as a result of the exercise of the
Option shall be subject to this Agreement, not the Prior Agreement.
8. The Optionee hereby represents, warrants, and agrees that: (a) the
Optionee has duly executed and delivered this Agreement, and all authorizations
and consents necessary for the execution and delivery thereof by the Optionee
have been given; (b) the Optionee now has and at the Effective Time will have
full right, power, and authority to enter into this Agreement; and (c) the
execution and delivery of this Agreement and the performance of the Optionee's
obligations hereunder will not conflict with or result in a breach of any of the
terms, provisions, or conditions of any agreement or instrument to which the
Optionee is a party or by which the Optionee may be bound.
9. All notices, consents, approvals, and other communications given or
made pursuant hereto shall be in writing and shall be: (a) delivered personally
against receipt thereof; (b) by overnight courier; (c) transmitted by
telecopier; or (d) by registered or certified mail (postage prepaid, return
receipt requested), in each case to SDDI or Giaimo at: 11806 Rockville Pike
Rockville, Maryland 20852 Attention: Robert T. Giaimo or at any other address
Giaimo or SDDI may hereafter designate by written notice to the other parties
hereto, and if to the Optionee, to the Optionee's last known address as
reflected in FTAC's records or to such other address and for such attention as
such persons may from time to time designate to the corporation in writing. All
such notices, consents, approvals, and other communications shall be deemed to
have been given on: (x) the date of receipt if delivered personally or by
overnight courier; (y) the date of transmission with confirmation answer back if
transmitted by telecopier; or (z) the second day following posting if
transmitted by mail.
10. This Agreement may be executed in counterparts, all of which shall
be considered one and the same agreement, it being understood that all parties
hereto need not sign the same counterpart.
11. If any provision of this Agreement shall be held to be invalid,
illegal, or unenforceable, in whole or in part, such invalidity, illegality, or
enforceability shall not in any way whatsoever affect the validity of the other
provisions of this Agreement and such other provisions shall remain in full
force and effect.
12. This Agreement is made under, and shall be governed pursuant to,
the laws of the State of Delaware, except for its law of conflicts.
<PAGE>
IN WITNESS WHEREOF, the Optionee, Giaimo, and SDDI have duly executed
this Agreement as of the day and year first above written.
----------------------------
Robert T. Giaimo
Silver Diner Development, Inc.:
By: ________________________
Name: Robert T. Giaimo
its President
Optionee:
---------------------------
Name: __________________
