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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 8-K
 
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 
Date of Report (Date of earliest event reported) July 11, 2022
denn-20220711_g1.jpg
DENNY’S CORPORATION
(Exact name of registrant as specified in its charter)
Delaware0-1805113-3487402
(State or other jurisdiction(Commission(IRS Employer
of incorporation)File Number)Identification No.)

203 East Main Street
Spartanburg, South Carolina 29319-0001
(Address of principal executive offices)
(Zip Code)

(864) 597-8000
(Registrant’s telephone number, including area code)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions:
 
☐  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐   Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐   Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:
Title of each classTrading Symbol(s) Name of each exchange on which registered
$.01 Par Value, Common StockDENN The Nasdaq Stock Market LLC

Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐



Item 1.01 Entry Into a Material Definitive Agreement.

As previously announced, on May 3, 2022, Denny's Corporation (the "Company") entered into an Asset Purchase Agreement, by and between the Company, as purchaser, and K2 Restaurants, Inc. together with the other sellers and principals party thereto (the "Purchase Agreement") for the acquisition of certain assets and assumption of certain liabilities of the franchise business, Keke's Breakfast Cafe ("Keke's"), and eight Keke’s restaurants owned and operated by the sellers.

On July 11, 2022, the Company and K2 Restaurants, Inc. together with the other sellers and principals party thereto, entered into an amendment (the "First Amendment") to the Purchase Agreement to extend the date by which the closing must occur from July 14, 2022 (following the close of business), to July 27, 2022 (following the close of business), provided certain conditions have been satisfied (or waived by Purchasers) on or before such date and time.

The foregoing description of the First Amendment does not purport to be complete and is subject to, and qualified in its entirety by, reference to the First Amendment, a copy of which is attached to this Current Report on Form 8-K as Exhibit 2.1 and the terms of which are incorporated herein by reference.

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

On July 14, 2022, the Board of Directors (the "Board") of the Company increased the size of the Board from nine to ten members and appointed Chief Executive Officer and President, Kelli Valade, to serve as a director of the Company. The appointment is effective immediately. Additionally, for so long as she continues to serve as Chief Executive Officer and President, she will be nominated annually to serve as a director, subject to the approval of stockholders at the annual meeting of stockholders. There are no other arrangements between Ms. Valade and any other person pursuant to which Ms. Valade was selected as a director, nor are there any transactions to which the Company or any subsidiary thereof is a party and in which Ms. Valade has a material interest subject to disclosure under Item 404(a) of Regulation S-K. Ms. Valade, as an employee of the Company, is not independent, as defined under the rules used by the NASDAQ Stock Market, and will not serve on any board committees, nor will she receive the compensation paid to non-employee directors.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

See the Exhibit Index below, which is incorporated by reference herein.

EXHIBIT INDEX
Exhibit
number		Description
2.1
104Cover Page Interactive Data File (formatted as Inline XBRL).


SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 
 
 Denny's Corporation
  
Date: July 14, 2022/s/ Robert P. Verostek
 Robert P. Verostek
 Executive Vice President and
 Chief Financial Officer
1 WBD (US) 57014912v2 FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT THIS FIRST AMENDMENT (this “Amendment”) made as of July 11, 2022 (the “Amendment Effective Date”) amends that certain Asset Purchase Agreement dated as of May 3, 2022 (as amended, restated, supplemented or otherwise modified, the “Purchase Agreement”) entered into by and between (A) Denny’s Corporation, a Delaware corporation (“Parent”); and such entity or its permitted assigns (as applicable) is each, a “Purchaser” and together, the applicable entities are the “Purchasers”) and (B) K2 Restaurants, Inc., a Florida corporation, Keke’s Butler North LLC, a Florida limited liability company, Keke’s Cortez Inc., a Florida corporation, Keke’s Durbin Park LLC, a Florida limited liability company, Keke’s Lakewood Ranch, Inc., a Florida corporation, Keke’s Largo LLC, a Florida limited liability company, Keke’s Strand LLC, a Florida limited liability company, Keke’s West Tennessee Street LLC, a Florida limited liability company, Marketplace Breakfast, Inc., a Florida corporation (each, a “Seller” and collectively, “Sellers”), and Keith Mahen and Kevin Mahen, individual residents of the State of Florida (“Principals”). All capitalized terms herein not otherwise defined herein shall have the meaning ascribed to them in the Purchase Agreement. WITNESSETH: WHEREAS, the Parties desire to amend certain provisions of the Purchase Agreement pursuant to Section 11.3 of the Purchase Agreement; and WHEREAS, pursuant to Section 11.7 of the Purchase Agreement, Parent desires to assign its rights, interests and obligations under the Purchase Agreement to Keke’s, Inc., a Florida corporation wholly-owned by Parent (“Sub 1”), and Keke’s Franchise Organization, LLC, a Delaware limited liability company indirectly wholly-owned by Parent (“Sub 2”), as further set forth herein. NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 1. Drop Dead Date. The Purchase Agreement is hereby amended such that the term “Drop Dead Date” (which is used in Sections 10.1(b)(ii) and 10.1(c)(ii) of the Purchase Agreement) shall refer to July 27, 2022 (following the close of business). 2. Assignment and Assumption. Parent hereby assigns, grants, conveys and transfers all of its right, title and interest in and to the Purchase Agreement (as amended by this Amendment) to Sub 1 and Sub 2; and Sub 1 and Sub 2 hereby accept such assignment and assume all of Parent’s duties, liabilities and obligations under the Purchase Agreement (as amended by this Amendment). As a result of such assignment and assumption, each of Sub 1 and Sub 2 is a party to the Purchase Agreement (as amended by this Amendment) as a “Purchaser.” It is the intention of the Parties that Sub 1 will acquire the Restaurant Assets and Sub 2 will acquire the Franchising Assets. This Amendment shall not release the Parent as to any obligations as set forth in the Agreement, specifically including (but not limited to) the indemnification obligations contained therein. 3. Indemnification by Purchasers. Purchasers hereby confirm that the obligation to the Seller Indemnified Parties pursuant to Section 9.3(d) of the Purchase Agreement includes Losses arising out of any personal guaranty by Principals of leases covering the Leased Real Property to the extent that such Losses arise from and after the Closing; provided, that Purchasers shall have no such obligation to the extent related to a Liability expressly covered by the Seller Parties’ indemnification obligations under Section 9.2 of the Purchase Agreement; and provided further, that Purchasers shall have no such obligation

 
2 WBD (US) 57014912v2 with respect to Losses that result solely from a Seller Indemnified Party’s willful misconduct. 4. General Provisions. a. This Amendment shall modify and amend the Purchase Agreement to the extent, and only to the extent, expressly set forth herein (it being the intent of the Parties that all of the terms and provisions of the Purchase Agreement that are not expressly amended, modified, waived or replaced hereunder shall be unaltered and shall remain in full force and effect and that the execution, delivery and performance of this Amendment shall not operate as a waiver of or consent to any past, present or future breach of any provision of the Purchase Agreement). From and after the Amendment Effective Date: (i) all references in the Purchase Agreement to “this Agreement,” “herein,” “hereunder,” and words of like import shall mean and refer to the Purchase Agreement as amended hereby; and (ii) any reference to the Purchase Agreement in this or any other instrument, document or agreement related thereto or executed in connection therewith shall mean the Purchase Agreement as amended hereby. b. This Amendment shall be governed by and construed in accordance with the Laws of the State of Delaware applicable to contracts made and performed in such State, without reference to conflict of law rules that would require the application of the Laws of another jurisdiction. c. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. d. The Parties agree to execute any and all documents and to perform such other acts as may be reasonably necessary or expedient to further the purposes of this Amendment and the transactions contemplated by this Amendment. e. No provision of this Amendment may be amended or waived other than in accordance with the provisions of the Purchase Agreement (as amended by this Amendment). [signature pages follow]

 
First Amendment to Asset Purchase Agreement IN WITNESS WHEREOF, each of the parties has caused this Agreement to be duly executed on its behalf as of the Amendment Effective Date. SELLERS K2 RESTAURANTS, INC. By: /s/ Kevin E. Mahen Name: Kevin E. Mahen Title: President KEKE’S BUTLER NORTH LLC By: /s/ Kevin E. Mahen Name: Kevin E. Mahen Title: Manager KEKE’S CORTEZ INC. By: /s/ Kevin E. Mahen Name: Kevin E. Mahen Title: President KEKE’S DURBAN PARK LLC By: /s/ Kevin E. Mahen Name: Kevin E. Mahen Title: Manager KEKE’S LAKEWOOD RANCH INC. By: /s/ Kevin E. Mahen Name: Kevin E. Mahen Title: President KEKE’S LARGO LLC By: /s/ Kevin E. Mahen Name: Kevin E. Mahen Title: Manager KEKE’S STRAND LLC By: /s/ Kevin E. Mahen Name: Kevin E. Mahen Title: Manager KEKE’S WEST TENNESSEE STREET LLC By: /s/ Kevin E. Mahen Name: Kevin E. Mahen Title: Manager KEKE’S MARKETPLACE BREAKFAST, INC. By: /s/ Kevin E. Mahen Name: Kevin E. Mahen Title: President PRINCIPALS /s/ Keith Mahen KEITH MAHEN /s/ Kevin Mahen KEVIN MAHEN

 
First Amendment to Asset Purchase Agreement PURCHASERS DENNY’S CORPORATION By: /s/ Gail Sharp Myers Name: Gail Sharp Myers Title: Executive Vice President, Chief Legal Officer, Chief People Officer, and Secretary KEKE’S, INC. By: /s/ Gail Sharp Myers Name: Gail Sharp Myers Title: Executive Vice President, Chief Legal Officer, Chief People Officer, and Secretary KEKE’S FRANCHISE ORGANIZATION, LLC By: /s/ Gail Sharp Myers Name: Gail Sharp Myers Title: Executive Vice President, Chief Legal Officer, Chief People Officer, and Secretary