As filed with the Securities and Exchange Commission on October 29, 2004.
Denny's Corporation
(Exact Name of Issuer as Specified in its Charter)
Delaware 13-3487402
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
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203 East Main Street
Spartanburg, South Carolina 29319-0001
(864) 597-8000
(Address, including zip code, and telephone number of Principal Executive
Offices)
Denny's Corporation 2004 Omnibus Incentive Plan
(Full Title of the Plan)
RHONDA J. PARISH, ESQ.
Executive Vice President, General Counsel and Secretary
Denny's Corporation
203 East Main Street
Spartanburg, South Carolina 29319-0001
(864) 597-8000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
-------------------------------------------- --------------- ------------------------- -------------------------- ------------------
Proposed Proposed
Title of Securities Amount to Maximum Maximum Amount of
to be Registered be Registered Offering Price Aggregate Registration Fee
Per Unit Offering Price
-------------------------------------------- --------------- ------------------------- -------------------------- ------------------
Common Stock, par value $.01 10,000,000 (1) $2.88 (2) $28,800,000 (2) $3,648.96
-------------------------------------------- --------------- ------------------------- -------------------------- ------------------
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(1) Amount to be registered consists of an aggregate of 10,000,000 shares to be
issued pursuant to the grant or exercise of awards to employees, officers,
directors and consultants under the Denny's Corporation 2004 Omnibus
Incentive Plan, including additional shares that may become issuable in
accordance with the adjustment and anti-dilution provisions of the Plan.
(2) Determined in accordance with Rule 457(h), the registration fee calculation
is based on the average of the high and low prices of the Company's Common
Stock reported on the OTC Bulletin Board on October 26, 2004.
PART I
INFORMATION REQUIRED IN The Section 10(a) Prospectus
(a) The documents constituting Part I of this Registration Statement will be sent or given to participants in the Denny's Corporation 2004 Omnibus Incentive Plan (the "Plan") as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended.
(b) Upon written or oral request, Denny's Corporation (the "Company") will provide, without charge, the documents incorporated by reference in Item 3 of Part II of this Registration Statement. The documents are incorporated by reference in the Section 10(a) prospectus. The Company will also provide, without charge, upon written or oral request, other documents required to be delivered to employees pursuant to Rule 428(b). Requests for the above mentioned information should be directed to Rhonda J. Parish, Executive Vice President, General Counsel and Secretary, at (864) 597-8000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act") are incorporated herein by reference and are deemed to be a part hereof from the date of the filing of such documents:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2003;
(2) All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act since December 31, 2003;
(3) The section entitled "Description of Registrant's Securities To Be Registered" in the Company's Registration Statement on Form 8-A filed with the Commission pursuant to the Exchange Act, including all amendments or reports filed for the purpose of updating such description;
(4) All other documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this Registration Statement that indicates that all
securities offered have been sold or that deregisters all securities that remain
unsold.
Any statement contained in a document incorporated or deemed incorporated herein by reference shall be deemed to be modified or superseded for the purpose of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is, or is deemed to be, incorporated herein by reference modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities. Not Applicable.
Item 5. Interests of Named Experts and Counsel. Not Applicable.
Item 6. Indemnification of Directors and Officers
Denny's Corporation is a Delaware corporation. Reference is made to
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL"), which
enables a corporation in its original certificate of incorporation or an
amendment thereto to eliminate or limit the personal liability of a director to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except (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) pursuant to Section 174 of the DGCL (providing for liability of directors
for unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit.
Reference is also made to Section 145 of the DGCL, which provides that a corporation may indemnify any persons, including officers and directors, who are, or are threatened to be made, parties to any threatened, pending or completed legal action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation or is or was serving at the request of such corporation as an officer, director, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such officer, director, employee or agent acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation's best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was unlawful. A Delaware corporation may indemnify officers, directors, employees and agents in an action by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer, director, employee or agent is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses that such officer, director, employee or agent actually and reasonably incurs.
The Company's Restated Certificate of Incorporation and By-Laws provide
for exculpation and indemnification of its officers and directors to the full
extent permitted under Delaware law. Specifically, Articles Sixth and Seventh of
the Restated Certificate of Incorporation provide for indemnification of
officers and directors to the full extent permitted by Section 145 of the DGCL
and the elimination of liability of directors to the full extent permitted by
Section 102 of the DGCL, and Article 5, Section 14 of the By-Laws provides for
indemnification of officers and directors to the full extent permitted by
Section 145 of the DGCL. Consequently, the registrant maintains officers' and
directors' liability insurance for the benefit of its officers and directors.
The Employment Agreement dated January 2, 2001 between Denny's Corporation and
Nelson J. Marchioli also provides for the indemnification of Mr. Marchioli by
Denny's Corporation to the full extent permitted by Delaware law and, in
connection therewith, calls for the advancement of attorneys' fees and expenses
(subject to repayment in certain circumstances). The Registration Rights
Agreement, dated as of January 7, 1998, among the Company and each of the
holders of registrable securities named therein, provides for indemnification by
the Company of the holder of registrable securities that is a party thereto for control person liability, if any, in respect of certain claims under the Securities Act of 1933.
Item 7. Exemption from Registration Claimed. Not Applicable.
Item 8. Exhibits
Exhibit Number Description
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to Form 10-K
filed by the Company on March 25, 2003)
4.2 Certificate of Amendment to Restated Certificate of
Incorporation to Increase Authorized Capitalization
dated August 25, 2004 (incorporated by reference to
Exhibit 3.1 to the 8-K filed by the Company on August
27, 2004)
4.3 By-Laws of the Company, as amended through August 25,
2004 (incorporated by reference to Exhibit 3.2 to the
8-K filed by the Company on August 27, 2004)
5 Opinion of J. Scott Melton, Esq., regarding the legality
of the securities being registered
23.1 Consent of J. Scott Melton, Esq. (included in Exhibit 5)
23.2 Consent of KPMG LLP
23.3 Consent of Deloitte & Touche LLP
24 Power of Attorney (included on signature page)
99.1 Denny's Corporation 2004 Omnibus Incentive Plan (the
"Plan") (incorporated by reference to Appendix B to the
Definitive Proxy Statement filed by the Company on
August 2, 2004 and furnished to stockholders of the
Company in connection with the August 25, 2004 Special
Meeting of Stockholders of the Company.)
99.2 Form of stock option agreement to be used under the Plan
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Item 9. Undertakings
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this 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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table 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 paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Company pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities being 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 undersigned Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(signatures on following page)
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant, Denny's Corporation, 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 Spartanburg, State of South Carolina, on October 29, 2004.
DENNY'S CORPORATION
By: /s/ Andrew F. Green
-----------------------------------------
Andrew F. Green
Senior Vice President
and Chief Financial Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Rhonda J. Parish as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, 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 of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signatures Title Date
/s/ Nelson J. Marchioli
------------------------- President, Chief Executive Officer October 16, 2004
Nelson J. Marchioli and Director (Principal Executive
Officer)
/s/ Andrew F. Green
------------------------- Senior Vice President and Chief October 18, 2004
Andrew F. Green Financial Officer (Principal
Financial and Accounting Officer)
/s/ Robert E. Marks
------------------------- Chairman of the Board of Directors October 18, 2004
Robert E. Marks
/s/ Vera K. Farris
------------------------- Director October 18, 2004
Vera K. Farris
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-------------------------- Director October __, 2004 Vada Hill /s/ Elizabeth A. Sanders -------------------------- Director October 18, 2004 Elizabeth A. Sanders /s/ Donald R. Shepherd -------------------------- Director October 18, 2004 Donald R. Shepherd /s/ Debra Smithart-Oglesby -------------------------- Director October 18, 2004 Debra Smithart-Oglesby |
EXHIBIT INDEX
TO
FORM S-8
Exhibit Number Description
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to Form 10-K
filed by the Company on March 25, 2003)
4.2 Certificate of Amendment to Restated Certificate of
Incorporation to Increase Authorized Capitalization
dated August 25, 2004 (incorporated by reference to
Exhibit 3.1 to the 8-K filed by the Company on August
27, 2004)
4.3 By-Laws of the Company, as amended through August 25,
2004 (incorporated by reference to Exhibit 3.2 to the
8-K filed by the Company on August 27, 2004)
5 Opinion of J. Scott Melton, Esq., regarding the legality
of the securities being registeredP
23.1 Consent of J. Scott Melton, Esq. (included in Exhibit 5)
23.2 Consent of KPMG LLP
23.3 Consent of Deloitte & Touche LLP
24 Power of Attorney (included on signature page)
99.1 Denny's Corporation 2004 Omnibus Incentive Plan (the
"Plan") (incorporated by reference to Appendix B to the
Definitive Proxy Statement filed by the Company on
August 2, 2004 and furnished to stockholders of the
Company in connection with the August 25, 2004 Special
Meeting of Stockholders of the Company.)
99.2 Form of stock option agreement to be used under the Plan
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Exhibit 5
October 29, 2004
Denny's Corporation
203 East Main Street
Spartanburg, South Carolina 29319
Ladies and Gentlemen:
As Assistant General Counsel of Denny's Corporation (the "Company"), I am familiar with the Registration Statement to be filed by the Company on or about October 29, 2004, with the Securities and Exchange Commission with respect to 10,000,000 shares of the Company's $.01 par value common stock issuable under the Denny's Corporation 2004 Omnibus Incentive Plan.
It is my opinion that the Company's $0.01 par value common stock to be registered, when sold or issued hereafter upon the grant or exercise of awards in accordance with the provisions of said plan and upon payment of the consideration for such shares as contemplated by said plan, will be validly issued, fully paid and nonassessable.
I hereby consent to the use of this opinion as Exhibit 5 to the above mentioned Registration Statement.
Sincerely,
/s/ J. Scott Melton -------------------------- J. Scott Melton Assistant General Counsel |
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors
Denny's Corporation
We consent to the use of our report dated February 18, 2004, with respect to the consolidated blance sheet of Denny's Corporation and subsidiaries as of December 31, 2003, and the related consolidated statements of operations, shareholders' deficit, and cash flows for the fiscal year then ended, incodporated herein by reference.
/s/ KPMG LLP Greenville, South Carolina October 29, 2004 |
Exhibit 23.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement of Denny's Corporation on Form S-8 of our report dated February 7, 2003 (which expresses an unqualified opinion and includes an explanatory paragraph relating to the change in method of accounting for intangible assets in 2002 to conform to Statement of Financial Accounting Standard No. 142, "Goodwill and Other Intangible Assets", as described in Note 3) appearing in and incorporated by reference in the Annual Report on Form 10-K of Denny's Corporation for the year ended December 31, 2003.
/s/ DELOITTE & TOUCHE LLP Greenville, South Carolina October 29, 2004 |
Exhibit 99.2
Denny's Corporation Stock Option Award Agreement
Dear Participant:
Congratulations on your selection as a participant in the Denny's stock option program. You have been granted the right to purchase from Denny's Corporation (the "Company") shares of its common stock, $.01 par value, pursuant to the provisions of the Denny's Corporation 2004 Omnibus Incentive Plan ("the Plan") and to the terms and conditions set forth in this Agreement.
Terms used in this Agreement that are defined in the Plan shall have the initial letter of the word capitalized and shall have the meanings ascribed to them in the Plan. If there is any inconsistency between the terms of this Agreement and the terms of the Plan, the Plan's terms shall supersede and replace the conflicting terms of this Agreement.
The options granted to you under this Agreement are nonqualified stock options.
1. Number of Options Granted: ___________
2. Date of Grant: ___________
3. Exercise Price: ___________
4. Option Term: The Options have been granted for a period of ten (10) years from the Date of Grant (the "Option Term").
5. Vesting and Exercise: Options do not provide you with any rights or interests until they vest and become exercisable. Unless vesting is accelerated in accordance with the Plan or in the discretion of the Committee, the Options shall vest subject to the conditions set forth in Section 6 as shown below:
Percentage of Date on Which percentage of Option Option That Vests, Assuming You Remain Employed Vests On The Applicable Date ---------------------------------------------------------- |
6. Conditions to Vesting: The following conditions must be satisfied for the Options to vest and become exercisable in accordance with Section 5 above:
(a) The Options have been designated as Qualified Performance-Based Award(s) and as such will vest and become exercisable in accordance with Section 5 only if the Company achieves an increase
in same store sales (on a percentage basis) for the Fourth Quarter of the 2004 fiscal year; and
(b) A participant must receive a performance rating of a "1" or a "2" on either his/her 2004 mid-year employee performance evaluation or his 2004 year-end employee performance evaluation for his/her Options to vest and become exercisable in accordance with Section 5.
7. How to Exercise: The Options hereby granted shall be exercised by
(1) contacting the Company's Stock Option Coordinator (currently, Kelly Land) at
(864/597-8671), (2) submitting a written notice (in the form required by the
Company on the date of exercise) specifying the number of shares you then desire
to purchase. Unless the exercise is a broker-assisted "cashless exercise" as
described below, such written notice must be accompanied by full payment in
cash, shares of stock of the Company previously acquired by you (which shares
may be delivered by attestation or actual delivery of one or more certificates),
or any combination thereof, for the applicable Exercise Price, plus any
applicable tax withholding amount; provided, however, that if shares of stock
are used for this purpose, such shares must have been held by you for at least
such period of time, if any, as necessary to avoid the recognition of an expense
under generally accepted accounting principles as a result of the exercise of
the Options. The fair market value of the surrendered shares of stock as of the
last trading day immediately prior to the exercise date shall be used in valuing
and shares used in payment of the Option Price or applicable tax withholding
amounts. To the extent permitted under Regulation T of the Federal Reserve
Board, and subject to applicable securities laws and at the discretion of
Compensation and Incentives Committee of the Board of Directors of the Company,
the Option may be exercised through a broker in a so-called "cashless exercise"
whereby the broker sells the Option shares and delivers cash sales proceeds to
the Company in payment of the Exercise Price. In such case, the date of exercise
shall be deemed to be the date on which notice of exercise is received by the
Company and the exercise price shall be delivered to the Company on the
settlement date.)
Notwithstanding the above, the Company has the authority and the right to deduct or withhold an amount sufficient to satisfy federal, state, and local taxes (including any FICA obligation) required by law to be withheld with respect to any taxable event arising as a result of the exercise of the Option. Such withholding requirement may be satisfied, in whole or in part, at the election of the Company, by withholding Option shares having a fair market value on the date of withholding equal to the minimum amount (and not any greater amount) required to be withheld for tax purposes, all in accordance with such procedures as the Committee establishes.
As soon as practicable after receipt of such written notification and payment and satisfaction of applicable tax withholding requirements, the Company shall issue or transfer to you, when applicable, the number of Shares with respect to which such Options shall be so exercised and shall deliver to you either a certificate or certificates for such shares or evidence of book entry of such Shares registered in your name.
8. Impact of Termination of Employment: The vesting and term of your options will change if you terminate employment during the Option Term, according to the following table (but in no event shall the term of an Option be extended beyond the original Option Term:
----------------------------------------------------------------------------------------------------
Employment Event Impact of Exercise Period for Vested
Termination Options ollowing Termination
on Vesting (After Which the Options Shall
Lapse)
----------------------------------------------------------------------------------------------------
lEAVE OF ABSENCE < 90 DAYS Continue Vesting No change
Death Vest fully 1 year
Disability 1 Continue vesting 1 year
until lapse
Retirement 2 Continue vesting 1 year
until lapse
Voluntary resignation Vesting stops 60 days
Involuntary termination other than for Vesting stops 60 days
Cause3
Involuntary termination for Cause3 Vesting stops None. Must exercise prior to
termination
Involuntary termination within 24 months Vest fully 5 years
of a Change in Control4
-----------------------------------------------------------------------------------------------
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1 Disability means any physical or mental condition which would qualify a Participant for a disability benefit under the long-term disability plan maintained by the Company and applicable to that particular Participant.
2 Retirement means the voluntary termination of employment from the Company or an Affiliate for any reason other than a leave of absence, death or disability on or after attainment of the age of fifty-five.
3 Cause as a reason for a Participant's termination of employment shall have the meaning assigned such term in the employment agreement, if any, between such Participant and the Company or an Affiliate, provided, however that if there is no such employment agreement in which such term is defined, and unless otherwise defined in the applicable Award Certificate, "Cause" shall mean any of the following acts by the Participant, as determined by the Board: gross neglect of duty, prolonged absence from duty without the consent of the Company, intentionally engaging in any activity that is in conflict with or adverse to the business or other interests of the Company, or willful misconduct, misfeasance or malfeasance of duty which is reasonably determined to be detrimental to the Company.
4 Please see the definition of Change in Control in the Plan.
9. Restrictions on Transfer and Pledge: No right or interest in the Options may be pledged, encumbered, or hypothecated to or in favor of any party other than the Company, or shall be subject to any lien, obligation, or liability to any other party other than the Company. The Options are not assignable or transferable by you other than by will or the laws of descent and distribution or pursuant to a domestic relations order that would satisfy Section 414(p)(1)(A) of the Code if such Section applied to an Option under the Plan; provided, however, that the Committee may (but need not) permit other transfers. The Options may be exercised during your lifetime only by you or any permitted transferee.
10. Beneficiary Designation: You may, in the manner determined by the Committee, designate a beneficiary to exercise your rights hereunder and to receive any distribution with respect to the Options upon your death. A beneficiary, legal guardian, legal representative, or other person claiming any rights hereunder is subject to all terms and conditions of this Agreement and the Plan, and to any additional restrictions deemed necessary or appropriate by the Committee. If no beneficiary has been designated or survives you, the Options may be exercised by the legal representative of your estate, and payment shall be made to your
estate. Subject to the foregoing, a beneficiary designation may be changed or revoked by you at any time provided the change or revocation is filed with the Company.
11. Limitation of Rights: The Options do not confer to you any rights of a shareholder of the Company unless and until Shares are in fact issued in connection with the exercise of the Options. Nothing in this Agreement shall interfere with or limit in any way the right of the Company to terminate your service at any time, nor confer upon you any right to continue in the service of the Company.
12. Covenants: Without the prior written consent of the Company, which may be granted or withheld in the Company's sole and absolute discretion, during the term of your employment with the Company, and for a period of twelve (12) calendar months thereafter, you hereby agree that you shall not, directly or indirectly:
(a) Disclosure of Information. Use, attempt to use, disclose, or otherwise make known to any person (other than in the course of employment with the Company or any Subsidiaries or Affiliate thereof) any knowledge or information of a confidential or proprietary nature (including all unpublished matters) relating to, without limitation, the business, strategy, plans, properties, accounting, books and records, trade secrets, or memoranda of the Company or its Affiliates.
(b) Solicitation. Whether for your own account or for the account of any other Person, solicit, employ, or retain (or arrange to have any other Person to solicit, employ, or retain) or otherwise participate in the employment or retention of any individual who is or has been within one (1) year an employee or consultant of the Company or any of its Subsidiaries.
13. Requirements of Law: The granting of Options and the issuance of Shares under the Plan shall be subject to all applicable laws, rules, and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required.
14. Restrictions on Issuance of Shares: If at any time the Committee shall determine in its discretion, that registration, listing or qualification of the Shares covered by the Options upon any Exchange or under any foreign, federal, or local law or practice, or the consent or approval of any governmental regulatory body, is necessary or desirable as a condition to the exercise of the Options, the Options may not be exercised in whole or in part unless and until such registration, listing, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Committee.
15. Applicable Laws and Consent to Jurisdiction: The validity, construction, interpretation, and enforceability of this Agreement shall be determined and governed by the laws of the state of Delaware without giving effect to the principles of conflicts of law. For the purpose of litigating any dispute that arises under this Agreement, the parties hereby consent to exclusive jurisdiction and agree that such litigation shall be conducted in the federal or state courts of the state of Delaware, county of New Castle.
16. Successors: This Agreement shall be binding upon any successor of the Company, in accordance with the terms of this Agreement and the Plan.
17. Plan Controls: The terms contained in the Plan are incorporated into and made a part of this Agreement and this Agreement shall be governed by and construed in accordance with the Plan. In the event of any actual or alleged
conflict between the provisions of the Plan and the provisions of this Agreement, the provisions of the Plan shall be controlling and determinative.
18. Severability: If any one or more of the provision contained in the Agreement is invalid, illegal or unenforceable, the other provision of this Agreement will be construed and enforced as if the invalid, illegal or unenforceable provision had never been included.
19. Notice: Notices and communications under this Agreement must be in writing and either personally delivered or sent by registered or certified United States mail, return receipt requested, postage prepaid. Notices to the Company must be addressed to:
Denny's Corporation
203 East Main Street
Spartanburg, South Carolina 29319-0001
Attn: Secretary
or any other address designated by the Company in a written notice to you. Notices to you will be directed to your address then currently on file with the Company, or at any other address given by you in a written notice to the Company.
Please refer any questions you may have regarding your stock options to the Stock Option Coordinator (currently, Kelly Land) of the Legal Department at (864/597-8671). Once again, congratulations on receipt of your stock option.
Sincerely,
Please acknowledge your agreement to participate in the Plan and this Agreement, and to abide by all of the governing terms and provisions, by signing the following representation:
Agreement to Participate
By signing a copy of this Agreement and returning it to the Stock Option Coordinator of the Legal Department of Denny's Corporation. I acknowledge that I have read the Plan, and that I fully understand all of my rights under the Plan, as well as all of the terms and conditions which may limit my eligibility to exercise this Option.