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EXHIBIT 4.34
AGREEMENT AND PLAN OF REORGANIZATION
AMONG
OUTBACK STEAKHOUSE, INC.
OUTBACK STEAKHOUSE OF FLORIDA, INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ STEAKHOUSE, INC.
KPH, INC.
▇▇▇▇▇▇▇-KPH PARTNERSHIP
AND
THE LIMITED PARTNERSHIPS
INDICATED ON SCHEDULE I
ATTACHED HERETO
DATED: NOVEMBER 30, 1999
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TABLE OF CONTENTS
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ARTICLE I - DEFINITIONS...........................................................................................2
ARTICLE II - PLAN OF ACQUISITION..................................................................................4
2.1 The Merger......................................................................................4
2.2 Adjustments.....................................................................................4
2.3 Closing.........................................................................................4
2.4 Execution and Delivery of Closing Documents.....................................................5
2.5 Execution and Filing of Merger Documents........................................................5
2.6 Effectiveness of Merger.........................................................................5
2.7 Further Assurances..............................................................................5
2.8 Dissenters' Rights..............................................................................5
2.9 Certificates....................................................................................6
2.10 Closing of Transfer Books.......................................................................6
2.11 Fractional Shares...............................................................................6
2.12 Accounting Treatment............................................................................6
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF ENTITIES..........................................................6
3.1 Organization and Good Standing..................................................................6
3.2 Foreign Qualification...........................................................................7
3.3 Power and Authority.............................................................................7
3.4 Authority and Validity..........................................................................7
3.5 Binding Effect..................................................................................7
3.6 Compliance with Other Instruments...............................................................7
3.7 Capitalization of Corporations..................................................................8
3.8 Composition of TKPH and Partnerships............................................................8
3.9 Financial Statements and Records................................................................8
3.10 Absence of Certain Changes......................................................................9
3.11 Tax Liabilities.................................................................................9
3.12 No Undisclosed Liabilities.....................................................................10
3.13 Title to Properties............................................................................10
3.14 Contracts......................................................................................10
3.15 Employees; Employee Benefit Plans..............................................................11
3.16 Litigation and Government Claims...............................................................12
3.17 No Violation of Any Instrument.................................................................12
3.18 Necessary Approvals and Consents...............................................................12
3.19 Compliance With Laws...........................................................................12
3.20 No Further Rights..............................................................................12
3.21 Accuracy of Information Furnished..............................................................13
3.22 Real Property..................................................................................13
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS..................................................14
4.1 Authority and Validity.........................................................................14
4.2 Binding Effect.................................................................................14
4.3 Ownership......................................................................................14
4.4 Voting.........................................................................................15
4.5 Residency......................................................................................15
4.6 Compliance with Other Instruments..............................................................15
4.7 Status as S Corporation........................................................................15
4.8 Securities Laws Representations and Warranties.................................................15
4.9 Refinancing of Manchester Debt.............................................................16
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TABLE OF CONTENTS (Continued)
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ARTICLE V - REPRESENTATIONS AND WARRANTIES OF OSI AND OUTBACK....................................................16
5.1 Organization and Good Standing.................................................................17
5.2 Foreign Qualification..........................................................................17
5.3 Power and Authority............................................................................17
5.4 Authority and Validity.........................................................................17
5.5 Binding Effect.................................................................................17
5.6 Compliance with Other Instruments..............................................................17
5.7 Capitalization of OSI..........................................................................17
5.8 SEC Report.....................................................................................18
5.9 Litigation and Government Claims...............................................................18
5.10 Necessary Approvals and Consents...............................................................18
5.11 Absence of Certain Changes or Events...........................................................18
ARTICLE VI - JOINT COVENANTS OF THE ENTITIES, THE SHAREHOLDERS, OSI AND OUTBACK..................................18
6.1 Notice of any Material Change..................................................................19
6.2 Cooperation....................................................................................19
6.3 Termination of Agreements......................................................................19
6.4 Additional Agreements..........................................................................19
ARTICLE VII - COVENANTS OF THE ENTITIES AND THE SHAREHOLDERS.....................................................20
7.1 Access; Confidentiality........................................................................20
7.2 Shareholders' Consent..........................................................................20
7.3 Conduct of Business Prior to Closing Date......................................................20
7.4 Securities Law Compliance; Restrictions on Shares..............................................21
7.5 Pooling........................................................................................22
7.6 Current Financial Statements...................................................................22
7.7 Agreements of Shareholders.....................................................................22
ARTICLE VIII - COVENANTS OF OSI AND OUTBACK......................................................................22
8.1 Mandatory Registration of OSI Common Stock.....................................................23
8.2 Registration Procedures........................................................................24
8.3 Expenses of Registration.......................................................................24
8.4 Adjustments in Number of Shares................................................................24
8.5 Transferees....................................................................................24
8.6 Employment Agreements..........................................................................24
ARTICLE IX - JOINT CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS...................................................25
9.1 Consents to Transaction........................................................................25
9.2 Absence of Litigation..........................................................................25
9.3 Dissenter's Rights.............................................................................25
9.4 HSR Act........................................................................................25
ARTICLE X - CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ENTITIES..................................................25
10.1 Compliance.....................................................................................25
10.2 Representations and Warranties.................................................................25
10.3 Opinion........................................................................................26
10.4 Material Adverse Changes.......................................................................26
10.5 Certificates...................................................................................26
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TABLE OF CONTENTS (Continued)
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RTICLE XI - CONDITIONS PRECEDENT TO OBLIGATIONS OF OSI AND OUTBACK..............................................26
11.1 Compliance.....................................................................................26
11.2 Representations and Warranties.................................................................26
11.3 Securities Law Compliance......................................................................26
11.4 Opinions.......................................................................................27
11.5 Current Financial Status.......................................................................27
11.6 Material Adverse Changes.......................................................................27
11.7 Pooling........................................................................................27
11.8 Certificates...................................................................................27
ARTICLE XII - INDEMNIFICATION....................................................................................27
12.1 Securities Laws Indemnification................................................................27
12.2 Indemnification Based on Agreement.............................................................28
12.3 Cooperation....................................................................................28
12.4 Notice.........................................................................................29
ARTICLE XIII - MISCELLANEOUS.....................................................................................30
13.1 Termination....................................................................................30
13.2 Expenses.......................................................................................30
13.3 Entire Agreement...............................................................................31
13.4 Survival of Representations and Warranties.....................................................31
13.5 Counterparts...................................................................................31
13.6 Notices........................................................................................31
13.7 Successors and Assigns.........................................................................32
13.8 Governing Law..................................................................................32
13.9 Waiver and Other Action........................................................................32
13.10 Severability...................................................................................32
13.11 Headings.......................................................................................32
13.12 Construction...................................................................................32
13.13 Jurisdiction and Venue.........................................................................32
13.14 Enforcement....................................................................................32
13.15 Further Assurances.............................................................................32
13.16 Equitable Remedies.............................................................................33
EXHIBIT A - AGREEMENT, PLAN, AND ARTICLES OF MERGER.............................................................A-1
EXHIBIT 11.4 - OPINION OF COUNSEL - ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
EXHIBIT B - DISCLOSURE SCHEDULES................................................................................B-1
SCHEDULE I - THE RESTAURANTS, THE FRANCHISEES, AND THE EQUITY OWNERS...........................................SI-1
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION is made and entered into as
of the 30th day of November, 1999, by and among OUTBACK STEAKHOUSE, INC., a
Delaware corporation ("OSI"); OUTBACK STEAKHOUSE OF FLORIDA, INC., a Florida
corporation ("Outback"); ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ("Angelopulos"), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇. ("▇▇▇▇▇▇▇"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"), ▇▇▇▇▇
▇▇▇▇▇ ("▇▇▇▇▇"), J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"), ▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇"), ▇▇▇▇▇
▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), ▇▇▇▇▇▇▇ STEAKHOUSE, INC., a Massachusetts corporation
("▇▇▇▇▇▇▇"), KPH, Inc., a Massachusetts corporation ("KPH"), ▇▇▇▇▇▇▇-KPH
PARTNERSHIP, a Massachusetts general partnership organized under the
Massachusetts Uniform Partnership Act ("TKPH"), and the limited partnerships
indicated on SCHEDULE I (each individually a "Partnership" and collectively the
"Partnership").
W I T N E S S E T H:
WHEREAS, Outback is a wholly owned subsidiary of OSI; and
WHEREAS, Angelopulos, Athanas, Burton, Collias, Lynch, ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇ each of whom is identified on SCHEDULE I as a Shareholder, are the only
shareholders of ▇▇▇▇▇▇▇; and
WHEREAS, ▇▇▇▇▇▇, identified on Schedule I as a Shareholder, is the sole
shareholder of KPH; and
WHEREAS, ▇▇▇▇▇▇▇ and KPH are the sole partners of TKPH with ▇▇▇▇▇▇▇
owning a ninety percent (90%) partnership interest in TKPH and KPH owning a ten
percent (10%) partnership interest in TKPH; and
WHEREAS, TKPH is the sole general partner of each Partnership; and
WHEREAS, the partners of each Partnership and their respective
partnership interests are as set forth on SCHEDULE I; and
WHEREAS, each Partnership operates an OUTBACK STEAKHOUSE restaurant (at
the address specified on SCHEDULE I) as a franchisee of Outback pursuant to an
OUTBACK STEAKHOUSE Restaurant Franchise Agreement between Outback and such
Partnership; and
WHEREAS, the Boards of Directors of ▇▇▇▇▇▇▇ and KPH have approved the
Merger of ▇▇▇▇▇▇▇ and KPH into Outback, with Outback as the surviving
corporation, upon the terms and conditions set forth in this Agreement; and
WHEREAS, it is intended that each Merger qualify as a reorganization
for federal income tax purposes within the meaning of Section 368(a) of the Code
and is intended to qualify as a pooling of interests for financial reporting
purposes; and
WHEREAS, pursuant to the Merger, ▇▇▇▇▇▇▇ and KPH will each be merged
with and into Outback, with Outback as the surviving corporation, and all of the
outstanding shares of capital stock of ▇▇▇▇▇▇▇ and KPH will be converted into
shares of OSI Common Stock; and
WHEREAS, the parties desire by this Agreement to set forth the terms
and conditions upon which they are willing to consummate the Merger.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants and agreements contained herein, the parties hereto covenant and agree
as follows:
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ARTICLE I
DEFINITIONS
When used in this Agreement, the following terms (used in singular or
in plural form where the context indicates) shall have the meanings designated
below:
1.1 "AGREEMENT" means this Agreement and Plan of Reorganization,
including all exhibits and schedules attached hereto.
1.2 "CLOSING" means when the parties shall have executed and
delivered each agreement and instrument required by this Agreement or the Merger
Agreement to be so executed and delivered and not theretofore accomplished,
together with such other appropriate and customary documents as the other
parties reasonably may request for the purpose of consummating the transactions
contemplated by this Agreement.
1.3 "CLOSING DATE" means the actual day on which the Closing
occurs.
1.4 "CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
1.5 "CORPORATION" or "CORPORATIONS" means ▇▇▇▇▇▇▇ and KPH
individually and collectively.
1.6 "CURRENT FINANCIAL STATEMENTS" means the unaudited balance
sheet of each Entity as of October 31, 1999, with any notes thereto, and the
related unaudited statements of income for the ten months ended October 31,
1999, together with supplemental information on each Entity, each prepared and
attested to by the chief financial officer of such Entity.
1.7 "DISCLOSURE SCHEDULES" means the schedules and agreements
attached hereto as composite Exhibit B.
1.8 ""DISSENTING SHARES" means shares of capital stock of a
Corporation whose holder demands appraisal of those shares under State Law or
who has demanded and perfected the right, if any, for appraisal of those shares
of stock in accordance with the provisions of State Law, and as of the Effective
Date has not withdrawn or lost such right to such appraisal.
1.9 "EFFECTIVE DATE" means the date the Merger Agreement is filed
with or declared effective by the appropriate governmental authority of each of
the State of the State of Florida and the states of incorporation of the
Corporations.
1.10 "EMPLOYEE BENEFIT PLAN" means any stock option, stock
purchase, stock appreciation right, bonus, deferred compensation, excess
benefits, profit sharing, pension, thrift, savings, stock bonus, employee stock
ownership plan, retirement, supplemental retirement benefit, major medical, long
term disability, hospitalization, insurance, or other plan, arrangement,
commitment, employment agreement or trust, or practice applicable to the
Entities providing employee, consultant, or executive benefits to any person.
1.11 "ENTITIES" means and includes TKPH, each Corporation and each
Partnership, individually and collectively, identified on SCHEDULE I.
1.12 "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
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1.13 "FINANCIAL STATEMENTS" means (i) the Current Financial
Statements; and (ii) the consolidated audited balance sheets of the Entities as
of December 31, 1998, December 31, 1997, and December 31, 1996, with any notes
thereto and the related audited statements of income, stockholders' or partners'
equity and cash flows for the years then ended with any notes thereto together
with supplemental information for each Entity, as audited by Deloitte and
Touche, certified public accountants.
1.14 "INDIVIDUAL ANNUAL ADJUSTED GROSS INCOME" means the "adjusted
gross income" as reported for federal income tax purposes, less any income
attributable to a spouse or to property owned by a spouse and increased by the
following amounts (but not including any amounts attributed to a spouse or to
property owned by a spouse): (i) the amount of any tax-exempt interest income
received; (ii) the amount of losses claimed as a limited partner in a limited
partnership; (iii) any deduction claimed for depreciation; and (iv) any amount
by which income from long-term capital gains has been reduced in arriving at
adjusted gross income pursuant to the provisions of Section 1202 of the Code or
comparable provisions.
1.15 "HSR ACT" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements
Act of 1976, as amended.
1.16 "MERGER" means the statutory merger of each Corporation into
Outback with Outback as the surviving corporation.
1.17 "MERGER AGREEMENT" means the form of Agreement, Plan, and
Articles of Merger in the form attached to this Agreement as EXHIBIT A.
1.18 "OSI" means OUTBACK STEAKHOUSE, INC., a Delaware corporation,
whose principal business address is ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
1.19 "OSI COMMON STOCK" means shares of Common Stock, par value
$.01, of OSI.
1.20 "OUTBACK" means OUTBACK STEAKHOUSE OF FLORIDA, INC., a Florida
corporation and a wholly owned subsidiary of OSI, whose principal business
address is ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
1.21 "PARTNERSHIP INTEREST" means the ownership interest of a
partner in a Partnership's profits and losses, other items of income, gain,
losses, deductions, expenses, and credits, and distributions of net cash
receipts at any particular time, including the right of such partner to any and
all benefits to which a partner may be entitled under the Partnership's
partnership agreement.
1.22 "PARTNERSHIP" means and includes each Partnership listed on
SCHEDULE I, individually and collectively.
1.23 "PROPRIETOR" means each person designated on SCHEDULE I as the
Proprietor of the restaurant owned by a Partnership and who holds a 10%
Partnership Interest in such Partnership.
1.24 "RESTAURANT" means the OUTBACK STEAKHOUSE restaurant owned and
operated by a Partnership as a franchisee of Outback at the location specified
on SCHEDULE I.
1.25 "SECURITIES ACT" means the Securities Act of 1933, as amended.
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1.26 "SHAREHOLDERS" means those persons designated on SCHEDULE I as
the holders of capital stock of the Corporations.
1.27 "STATE LAW" means the laws of the States of Massachusetts,
Connecticut, New Hampshire and Rhode Island.
ARTICLE II
PLAN OF ACQUISITION
2.1 THE MERGER. Subject to and upon the terms and conditions
contained herein, the Corporations shall be merged with and into Outback, with
Outback being the surviving corporation, in accordance with the Merger Agreement
attached hereto as EXHIBIT A which shall be executed and delivered by OSI,
Outback, and each Corporation prior to the Merger. By virtue of the Merger and
without any further action being required by the Shareholders, (i) all capital
stock of ▇▇▇▇▇▇▇ outstanding immediately before the Effective Date shall be
converted into and exchanged for Two Million Thirty Thousand Four Hundred
(2,030,400) shares of OSI Common Stock, subject to statutory appraisal rights;
and (ii) all capital stock of KPH outstanding immediately before the Effective
Date shall be converted into and exchanged for Two Hundred Twenty FiveThousand
Six Hundred (225,600) shares of OSI Common Stock, subject to statutory appraisal
rights.
2.2 ADJUSTMENTS.
(a) If, between the date of this Agreement and the
Effective Date, (i) the outstanding shares of capital stock of a
Corporation shall be changed into a different number of shares or a
different class by reason of any reclassification, recapitalization,
split up, combination, exchange of shares, or readjustment, with a
record date within such period, or a stock dividend thereon shall be
declared with a record date within such period or (ii) a Corporation
shall issue additional shares of its capital stock, the number of
shares of OSI Common Stock received in exchange for each share of such
Corporation's capital stock shall be adjusted so that the aggregate
number of shares of OSI Common Stock as specified in SECTION 2.1
received in exchange for all shares of such Corporation's capital stock
(assuming no Dissenting Shares) remains unchanged.
(b) If, between the date of this Agreement and the
Effective Date, as the case may be, the outstanding shares of OSI
Common Stock shall have been changed into a different number of shares
or a different class by reason of any reclassification,
recapitalization, split up, combination, exchange of shares, or
readjustment, with a record date within such period, or a stock
dividend thereon shall be declared with a record date within such
period, the number of shares of OSI Common Stock received in exchange
for each share of capital stock of each Corporation (as specified in
SECTION 2.1 hereof) shall be equitably adjusted to reflect such change.
2.3 CLOSING. The Closing shall take place at the offices of
Outback at 10:00 a.m., Tampa time, on the Effective Date, or on such date and at
such other time and place as is agreed upon by the parties hereto. If any of the
conditions to the obligations of the parties to this Agreement have not been
satisfied or waived by the Closing Date, then the party to this Agreement that
is unable to meet such condition or conditions shall be entitled to postpone the
Closing by written notice to the other parties until such condition shall have
been satisfied or waived (which such party shall seek to cause to happen at the
earliest practicable date), but the Closing shall occur not later than November
30, 1999, unless further extended by written agreement of the parties to this
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Agreement. The parties shall use their best efforts to effectuate a timely
Closing as provided in this SECTION 2.3.
2.4 EXECUTION AND DELIVERY OF CLOSING DOCUMENTS. Before the
Closing, each party shall cause to be prepared, and at the Closing the parties
shall execute and deliver, each agreement and instrument required by this
Agreement or the Merger Agreement to be so executed and delivered and not
theretofore accomplished. At the Closing, each party also shall execute and
deliver such other appropriate and customary documents as the other parties
reasonably may request for the purpose of consummating the transactions
contemplated by this Agreement and the Merger Agreement. All actions taken at
the Closing shall be deemed to have been taken simultaneously at the time the
last of any such action is taken or completed.
2.5 EXECUTION AND FILING OF MERGER DOCUMENTS. At the Closing, OSI,
Outback, the Entities and the Shareholders agree to take the following actions:
(a) to execute and deliver all documents and certificates
relating to the Merger required to be executed by them that have not
already been so executed and that are required under applicable
federal, state, and local laws to be filed in order validly to
effectuate the Merger, and the transfer of the Restaurants to Outback;
and
(b) to cause the Merger Agreement to be filed with the
appropriate governmental officer of both the State of Florida and the
state under which each Corporation is organized and a Certificate of
Merger to be issued by each such officer.
2.6 EFFECTIVENESS OF MERGER. The Merger shall become effective
upon the filing of the Merger Agreement with the appropriate governmental
officer of the State of Florida and the states in which each Corporation was
incorporated.
2.7 FURTHER ASSURANCES. After the Closing, the parties hereto
shall execute and deliver such additional documents and take such additional
actions as reasonably may be deemed necessary or advisable by any party in order
to consummate the transactions contemplated by this Agreement and by the Merger
Agreement, and to vest more fully in Outback the ownership of and the rights to
the Restaurants and assets of the Partnerships and the Corporations, as it or
they existed immediately before the Effective Date.
2.8 DISSENTERS' RIGHTS. Notwithstanding any provision of this
Agreement to the contrary, any Dissenting Shares shall not be converted into,
exchanged for, or represent a right to receive OSI Common Stock, but the holder
shall only be entitled to such rights as are granted by State Law. If a
Shareholder who demands appraisal of his shares under State Law shall
effectively withdraw or lose (through failure to perfect or otherwise) the right
to appraisal, then, as of the Effective Date or the occurrence of such event,
whichever last occurs, those Shareholder's shares shall be converted into or
exchanged and represent only the right to receive OSI Common Stock as provided
in ARTICLE II, upon the surrender of the certificate or certificates
representing those shares. The Corporations shall give OSI (a) prompt notice of
any written demands for appraisal of any shares of capital stock, attempted
withdrawals of such demands and any other instruments served pursuant to State
Law received by it relating to Shareholders' rights of appraisal and (b) the
opportunity to direct all negotiations and proceedings with respect to demands
for appraisal under State Law. No Corporation shall, except with the prior
written consent of OSI, voluntarily make any payment with respect to any demands
for appraisals of capital stock of such Corporation, offer to settle or settle
any such demands or approve any withdrawal of any such demands. Notwithstanding
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any contrary provision of this Agreement, Outback and OSI shall have the right
to terminate this Agreement and be released from all obligations hereunder if
Outback and OSI, in their sole and absolute discretion, determine that
Shareholders of any Corporation have demanded appraisal or dissenter's rights in
amounts which jeopardize the accounting treatment specified in SECTION 2.12 or
otherwise is not in the best interests of Outback or OSI.
2.9 CERTIFICATES. At the Closing each Shareholder shall surrender
for cancellation his certificates representing capital stock of a Corporation.
As soon as practicable after the Effective Date, OSI shall cause to be delivered
to each Shareholder certificates representing the number of shares of OSI Common
Stock into which the shares of capital stock of the Corporation are converted
pursuant to the Merger as provided in SECTION 2.1 hereof. For all purposes under
the Securities Act and State Law governing the issuance of securities, the OSI
Common Stock issued to the Shareholders shall be deemed issued as of the
Effective Date.
2.10 CLOSING OF TRANSFER BOOKS. At the Closing Date, each
Corporation's and each Partnership's transfer books shall be closed and no
transfer of capital stock of any Corporation or Partnership Interests in any
Partnership shall thereafter be made.
2.11 FRACTIONAL SHARES. No fractional shares of OSI Common Stock
and no certificates or scrip therefor shall be issued. Instead, one whole share
of OSI Common Stock shall be issued for each fractional share of .5 or more of
one whole share, and each fractional share of less than .5 of one whole share
shall be disregarded.
2.12 ACCOUNTING TREATMENT. It is the intention of the parties
hereto that the Merger will be treated for financial reporting purposes as a
pooling of interests.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ENTITIES
Each Entity represents and warrants to OSI and Outback as follows:
3.1 ORGANIZATION AND GOOD STANDING. Each Corporation is a
corporation duly organized, validly existing, and in good standing under the
laws of the Commonwealth of Massachusetts. Each Partnership is duly and validly
formed and validly existing as a limited partnership under the law of the state
of its formation. TKPH is a partnership duly and validly formed and validly
existing as a partnership under the laws of the Commonwealth of Massachusetts.
Each Corporation has provided, or will provide prior to Closing, OSI and Outback
with a current certificate of legal existence and good standing (dated within
the last 30 days), issued by the Massachusetts Secretary of State. Each
Partnership has provided OSI and Outback with a current certificate of legal
existence (dated within the last 30 days) issued by the appropriate official of
the Partnerships' state of formation. Each Corporation has provided, or will
provide prior to Closing, Outback and OSI with a true and correct copy of its
articles of organization, together with all amendments thereto, under a
certificate issued by the Massachusetts Secretary of State, and a true and
correct copy of its bylaws, under a certificate issued by the President of the
Corporation certifying same and also certifying that, other than as noted, no
amendments to the articles of organization or bylaws have been or will be made
prior to Closing. TKPH has provided, or will provide prior to Closing, Outback
and OSI with a true and correct copy of its partnership agreement under a
certificate issued by the partners of TKPH certifying same and also certifying
that, other than as noted, no amendments to the partnership agreement have been
or will be made prior to Closing. Each Partnership has provided, or will provide
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prior to Closing, Outback and OSI with a true and correct copy of its
certificate of limited partnership together with all amendments thereto, under a
certificate issued by the appropriate official of its state of formation, and a
true and correct copy of its partnership agreement, under a certificate issued
by the general partner of the Partnership certifying same and also certifying
that, other than as noted, no amendments to the certificate of limited
partnership or partnership agreement have been or will be made prior to Closing.
3.2 FOREIGN QUALIFICATION. Each Entity is duly qualified,
registered or licensed to do business and is in good standing as a foreign
corporation or partnership in every jurisdiction where the character of its
properties owned or held under lease or the nature of its business make such
qualification, registration or license necessary and except where the failure to
so qualify, register or be licensed could not, individually or in the aggregate,
have a material adverse effect on its business, operations, assets or financial
condition. Each Entity has provided, or will provide prior to Closing, OSI and
Outback with a current certificate of foreign registration and/or good standing
(dated within the last 30 days), issued by the state(s) under which such Entity
has qualified to do business as a foreign corporation or partnership.
3.3 POWER AND AUTHORITY. Each Partnership has the requisite power
and authority and all licenses and permits required by governmental authorities
to own, lease, and operate its properties and assets and to carry on the
business of its Restaurant as currently being conducted.
3.4 AUTHORITY AND VALIDITY. Each Entity has power and authority to
execute, deliver and perform its obligations under this Agreement, the Merger
Agreement and the other documents executed or to be executed by it in connection
with this Agreement; and the execution, delivery and performance by each Entity
of this Agreement, the Merger Agreement and the other documents executed or to
be executed by it in connection with this Agreement have been duly authorized by
all necessary corporate or partnership action, subject to receiving Shareholder
approval. The execution, delivery and performance by each Entity of this
Agreement, the Merger Agreement and any other documents executed or to be
executed in connection with this Agreement and the consummation of the
transactions provided for herein have been, or will have been prior to Closing,
duly authorized and approved by the Entity's board of directors, Shareholders,
or general partners, as applicable, as required under State Law and its
corporate or partnership governance documents.
3.5 BINDING EFFECT. This Agreement, the Merger Agreement, and the
other documents executed or to be executed by the Entities in connection with
this Agreement have been or will have been duly executed and delivered by the
Entities, and are or will be, when executed and delivered, the legal, valid and
binding obligations of the Entities enforceable in accordance with their terms
except that (a) enforceability may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights; and (b) the availability of equitable
remedies may be limited by equitable principles of general applicability.
3.6 COMPLIANCE WITH OTHER INSTRUMENTS. Except as set forth in ITEM
3.6 of the Disclosure Schedules, neither the execution and delivery by any
Entity of this Agreement, the Merger Agreement, or any other documents executed
or to be executed by any Entity, nor the consummation by them of the
transactions contemplated hereby or thereby, will violate, breach, be in
conflict with, or constitute a default under, or permit the termination or the
acceleration of the maturity, or result in the imposition, of any lien, claim or
encumbrance upon any material property or asset of any Entity pursuant to an
Entity's articles of incorporation, bylaws, partnership agreement, operating
agreement or other charter or governance document, or pursuant to any note,
bond, indenture, mortgage, deed of trust, evidence of indebtedness, loan or
lease agreement, other agreement or instrument (including with customers),
judgment, order, injunction or decree by which any Entity is bound, to which any
of them is a party, or to which any asset of any of them is subject.
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3.7 CAPITALIZATION OF CORPORATIONS.
(a) The authorized capital stock of each Corporation, and the
number and class of all issued and outstanding shares of capital stock
of each Corporation is as specified on ITEM 3.7(A) of the Disclosure.
All of the issued and outstanding shares of each Corporation are owned
beneficially and of record by the persons and in the amounts specified
on SCHEDULE I. There are no other holders of record of the capital
stock of either Corporation and, except as set forth on ITEM 3.7(A) of
the Disclosure Schedules, no other person possesses any rights or
options to acquire capital stock of any Corporation. All of the issued
and outstanding shares of capital stock of each Corporation have been
duly authorized and validly issued and are fully paid and
nonassessable. There are no shares of capital stock of either
Corporation held in their respective treasuries.
(b) Except as indicated in ITEM 3.7 of the Disclosure
Schedules, there are no voting trusts, shareholder agreements, or other
voting arrangements among the Shareholders.
(c) Except as indicated in ITEM 3.7 of the Disclosure
Schedules, there is no outstanding subscription, contract, convertible
or exchangeable security, option, warrant, call or other right
obligating either Corporation to issue, sell, exchange or otherwise
dispose of, or to purchase, redeem or otherwise acquire, shares of, or
securities convertible into or exchangeable for, capital stock of such
Corporation.
3.8 COMPOSITION OF TKPH AND PARTNERSHIPS.
(a) ▇▇▇▇▇▇▇ and KPH are the only partners of TKPH. ▇▇▇▇▇▇▇
owns beneficially and of record a ninety percent (90%) Partnership
Interest in TPKH. KPH owns beneficially and of record a ten percent
(10%) Partnership Interest in TKPH.
(b) All Partnership Interests in the Partnerships are owned by
TKPH and the Proprietors named and in the percentages indicated on
SCHEDULE I. There are no other partners of any Partnership and no other
person, other than Outback, possesses rights to acquire any interest in
any Partnership. TKPH owns beneficially and of record ninety percent
(90%) of the Partnership Interests in each Partnership, and the
Proprietor of the OUTBACK STEAKHOUSE restaurant owned by such
Partnership owns the remaining ten percent (10%) Partnership Interests.
(c) Except for the rights of first refusal contained in the
partnership agreement of TKPH and each Partnership and the OUTBACK
STEAKHOUSE Restaurant Franchise Agreements, there is no outstanding
contract, agreement, option or other right obligating the Partnership
to issue, sell, exchange or otherwise transfer any interest in any
Partnership.
3.9 FINANCIAL STATEMENTS AND RECORDS. The Entities delivered to
OSI true, correct and complete copies of the Financial Statements. The Financial
Statements present fairly the assets, liabilities and financial position of the
Entities as of the dates thereof and the results of operations for the periods
then ended, in conformity with generally accepted accounting principles (except
for the absence of footnotes to the Current Financial Statements), applied on a
consistent basis through the periods so ended. Since formation of each Entity,
there has been no change in accounting principles applicable to, or methods of
accounting utilized by such Entity. The books and records of the Entities have
been and are being maintained in accordance with good business practice, reflect
only valid transactions, are correct and complete in all material respects and
accurately reflect in all material respects the basis for the financial position
and results of operations of the Entities set forth in the Financial Statements.
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3.10 ABSENCE OF CERTAIN CHANGES. Except as indicated in ITEM 3.10
of the Disclosure Schedules), since the date of the Current Financial
Statements, no Entity has:
(a) suffered any material adverse change in its business,
results of operations, working capital, assets, liabilities, or
condition (financial or otherwise) or the manner of conducting its
business, except for a notification from the Commonwealth of
Massachusetts Department of Revenue dated November 4, 1999 with respect
to the nonpayment of certain corporate excise taxes, a copy of which
has been provided to OSI;
(b) suffered any material damage or destruction to or loss of
its assets not covered by insurance, or any loss of suppliers or
employees;
(c) acquired or disposed of any asset, or incurred, assumed,
guaranteed, endorsed, paid or discharged any indebtedness, liability or
obligation, or subjected or permitted to be subjected any material
amount of assets to any lien, claim or encumbrance of any kind, except
in the ordinary course of business;
(d) forgiven, compromised, canceled, released, waived or
permitted to lapse any material rights or claims;
(e) entered into or terminated any lease, agreement,
commitment or transaction, or agreed to or made any changes in any
leases or agreements, other than transactions and commitments entered
into in the ordinary course of business;
(f) written up, written down, or written off the book value of
any assets;
(g) declared, paid, or set aside for payment any dividend or
distribution with respect to its capital stock or partnership
interests;
(h) redeemed, purchased, or otherwise acquired, or sold,
granted or otherwise disposed of, directly or indirectly, any of its
capital stock or securities or any rights to acquire such capital stock
or securities, or agreed to changes in the terms and conditions of any
such rights outstanding as of the date of this Agreement;
(i) except in the ordinary course of business, increased the
compensation of any employee or paid any bonuses to any employee or
contributed to any Employee Benefit Plan; provided however, the
Entities may pay severance payments in a cumulative, aggregate amount
not to exceed Two Hundred Fifty Thousand Dollars ($250,000) to
employees of TKPH;
(j) entered into any employment, consulting, compensation or
collective bargaining agreement with any person or group, except oral
employment agreements which can be terminated at will; or
(k) entered into, adopted or amended any Employee Benefit Plan
or severance agreements.
3.11 TAX LIABILITIES. Other than with respect to corporate excise
taxes at the state level (including penalties and interest) which may be
assessed on the Entities in an aggregate amount not to exceed Four Hundred
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Thousand Dollars ($400,000) (the "Corporate Excise Taxes"), each Entity has
filed all federal, state, county, local and foreign tax returns and reports
required to be filed by it, including those with respect to income, payroll,
property, withholding, social security, unemployment, franchise, state liquor,
restaurant, excise, and sales and use taxes and has provided Outback and OSI
with copies of such returns and reports for the three-year period preceding the
Effective Date; each Entity has caused each such return or report to be
completed accurately; each Entity has either paid in full all taxes that have
become due and any interest and penalties with respect thereto or has fully
accrued on its books or has established adequate reserves for all taxes payable
to and including the Effective Date but not yet due; and each Entity has made
cash deposits with appropriate governmental authorities representing estimated
payments of taxes, including income taxes and employee withholding tax
obligations. Except as indicated on ITEM 3.11 of the Disclosure Schedules, no
extension or waiver of any statute of limitations or time within which to file
any return has been granted the Entity with respect to any tax. No unsatisfied
deficiency, delinquency or default for any tax, assessment or governmental
charge has been claimed, proposed or assessed against the Entity nor has the
Entity received notice of any such deficiency, delinquency or default. No Entity
has reason to believe that it has or may have any tax liabilities other than
those reflected on the Current Financial Statements, those arising in the
ordinary course of business since the date thereof, or the Corporate Excise
Taxes.
The Shareholders shall have sole responsibility for filing all required tax
returns for the Entities for all periods ending on or prior to the Effective
Date, for paying all income taxes for such periods and for paying all other
taxes for such periods in excess of (i) the reserves contained in the Current
Financial Statements, and (ii) the Corporate Excise Taxes. OSI and Outback shall
assist the Shareholders in preparing income tax returns and shall cooperate with
the Shareholders to the extent necessary therefor and the Shareholders shall
provide OSI with copies of all returns for the Entities at least fifteen (15)
days prior to filing.
3.12 NO UNDISCLOSED LIABILITIES. There are no liabilities or
obligations of any Entity of any nature, whether absolute, accrued, contingent
or otherwise other than:
(a) liabilities stated on the Current Financial Statements;
and
(b) liabilities and obligations which have been incurred since
the date of the Current Financial Statements in the ordinary course of
business consistent with past practices; and
(c) liability for the Corporate Excise Taxes.
3.13 TITLE TO PROPERTIES. Each Entity has good and marketable title
to (a) the tangible assets reflected in its books and records as being owned by
it (except as such assets have since been affected by transactions in the
ordinary course of business and consistent with past practices); (b) the real
and personal properties reflected in the Current Financial Statements (except
for assets subject to financing leases required to be capitalized under
generally accepted accounting principles, all of which are so reflected in the
Current Financial Statements or notes thereto); and (c) all assets purchased by
it since the date of the Current Financial Statements; in each case free and
clear of any lien, claim or encumbrance, except as reflected in the Current
Financial Statements or notes thereto and in ITEM 3.13 of the Disclosure
Schedules and except for liens for taxes, assessments or other governmental
charges not yet due and payable. Except for those assets acquired since the date
of the Current Financial Statements, all material properties and assets owned by
the Entities are properly reflected on the applicable Current Financial
Statements and notes thereto.
3.14 CONTRACTS. Excluding OUTBACK STEAKHOUSE Restaurant Franchise
Agreements, ITEM 3.14 of the Disclosure Schedules is a complete and accurate
list of all of the following categories of contracts and commitments (including
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summaries of oral contracts) to which each Entity is a party or by which each
Entity is bound:
(a) contracts with any labor union, benefit plans or
contracts, and employment, consulting or similar contracts, including
confidentiality agreements;
(b) leases, whether as lessor or lessee, loan agreements,
mortgages, indentures, instruments of indebtedness or commitments in
each case involving indebtedness for borrowed money or money loaned to
others, and guaranty or suretyship, performance bond, indemnification
or contribution agreements involving obligations;
(c) contracts with suppliers that involve aggregate payments
of more than One Thousand Dollars ($1,000) and which cannot be
terminated without penalty with 30 days' or less prior notice;
(d) marketing and advertising contracts;
(e) insurance policies; and
(f) other contracts not made in the ordinary course of
business or that are material to the operations, business or financial
condition of any Entity.
Each Entity has furnished or made available accurate and complete
copies of the foregoing contracts and agreements to OSI. All such contracts are
valid, binding and enforceable in accordance with their terms except that: (i)
enforceability may be limited by bankruptcy, insolvency or other similar laws
affecting creditors' rights; and (ii) the availability of equitable remedies may
be limited by equitable principles of general application.
3.15 EMPLOYEES; EMPLOYEE BENEFIT PLANS. The Entities have no
Employee Benefit Plans other than those indicated in ITEM 3.15 of the Disclosure
Schedules. Except as set forth on ITEM 3.15 of the Disclosure Schedules, there
has not been (a) any material failure by any Entity to operate any Employee
Benefit Plans substantially in accordance with its provisions and in compliance
with the rules and regulations governing such Employee Benefit Plan, including,
but not limited to, rules and regulations promulgated by the Department of
Labor, the Pension Guaranty Corporation, and the Department of Treasury pursuant
to ERISA or the Code, and the Equal Employment Opportunity Commission pursuant
to the Age Discrimination in Employment Act; or (b) any failure by any Entity to
pay or properly accrue on the Financial Statements all reasonably anticipated
material obligations of such Entity, whether arising by operation of law, by
contract, by past custom or practice, or otherwise, for salaries, vacation, and
holiday pay, bonuses, and other employee compensation and benefits which were
payable to its officers, directors, or other employees. Except as set forth on
ITEM 3.15 of the Disclosure Schedules, there has not occurred any material
accumulated funding deficiency within the meaning of ERISA or any material
liability to the Pension Benefit Guaranty Corporation established under ERISA,
in connection with any Employee Benefit Plan established or maintained by or on
behalf of an Entity for the benefit of the employees of such Entity, or any
other person, or any prohibited transaction (as defined in Section 4975 of the
Code and as defined in Section 406 of ERISA) by any Employee Benefit Plan
established or maintained by or on behalf of an Entity, or any trust thereunder,
or by any trustee or administrator thereof, that would subject an Entity or any
such Employee Benefit Plan, trust, trustee, or administrator, or any party
dealing with any such Employee Benefit Plan or trust, to any material tax or
penalty on prohibited transactions imposed by said Section 4975 or any failure
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to comply with the provisions of Title I of ERISA that would subject an Entity
or any such Employee Benefit Plan, trust, trustee, or administrator, or any
party dealing with any such Employee Benefit Plan or trust to any material fine,
penalty, tax or liability.
3.16 LITIGATION AND GOVERNMENT CLAIMS. Except as indicated in ITEM
3.16 of the Disclosure Schedules, there are no pending suits, claims, actions or
litigation or administrative, arbitration or other proceedings or governmental
investigations or inquiries against any Entity or to which any of its businesses
or assets are subject. Except as indicated in ITEM 3.16 of the Disclosure
Schedules, to the best knowledge any Entity, there are no such proceedings
threatened or contemplated.
3.17 NO VIOLATION OF ANY INSTRUMENT. Except as indicated in ITEM
3.17 of the Disclosure Schedules, no Entity is in violation of or default under
nor has any event occurred that, with the passage of time or the giving of
notice or both, would constitute a violation of or default under or permit the
termination of, or the acceleration of maturity of, or result in the imposition
of, a lien, claim or encumbrance upon any property or asset of any Entity,
pursuant to its articles or certificates of incorporation, bylaws, partnership
agreement, operating agreement or other charter or governance document, or
pursuant to any note, bond, indenture, mortgage, deed of trust, evidence of
indebtedness, loan or lease agreement, other material agreement or instrument
(including OUTBACK STEAKHOUSE Restaurant Franchise Agreements), judgment, order,
injunction or decree to which any Entity is a party, or by which any Entity is
bound, or to which its assets are subject.
3.18 NECESSARY APPROVALS AND CONSENTS. Other than (a) in connection
with or in compliance with State Law with respect to effectuating the Merger;
(b) consents required to be obtained from applicable liquor control authorities;
(c) consents required to be obtained from lessors; (d) approvals under the HSR
Act; and (e) applicable provisions of the Securities Act, the Securities
Exchange Act of 1934, as amended, or state securities or blue sky laws; no
authorization, consent, permit or license or approval of or declaration,
registration or filing with, any person or governmental or regulatory authority
or agency is necessary for the execution and delivery by the Entities and the
Shareholders of this Agreement, the Merger Agreement and the other agreements
executed or to be executed by them in connection with this Agreement, and the
consummation by the Entities and the Shareholders of the transactions
contemplated by this Agreement and the Merger Agreement, and the ownership and
operation by Outback of the respective businesses and properties of the Entities
after the Effective Date in substantially the same manner as now operated.
3.19 COMPLIANCE WITH LAWS. Each Entity is in compliance with all
laws applicable to its business, including, without limitation, all applicable
ERISA and labor laws, except where failure to so comply would not have a
material adverse effect on its business, operations, properties, assets or
conditions. Further, the Shareholders have no actual knowledge that any Entity
is not in compliance with any such laws applicable to its business, where
failure to so comply would have a material adverse effect on its business,
operations, properties, assets or conditions. The operations of each Restaurant
conforms in all respects with all applicable ordinances, regulations, and zoning
laws and all applicable requirements of federal, state, and local governmental
and regulatory authorities.
3.20 NO FURTHER RIGHTS. Except as specifically provided herein,
after the Merger, no Entity or Shareholder will have any rights, contractual or
otherwise, to develop, own, manage, franchise or operate OUTBACK STEAKHOUSE
restaurants. The parties acknowledge that Outback intends to enter into
management agreements with ▇▇▇▇▇▇ whereby ▇▇▇▇▇▇ will receive management fees
for supervision of the Restaurants currently owned by the Entities and limited
partnership agreements with ▇▇▇▇▇▇ for the development of additional OUTBACK
STEAKHOUSE restaurants.
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3.21 ACCURACY OF INFORMATION FURNISHED. No representation or
warranty by any Entity or Shareholder contained in this Agreement nor any
information in the Financial Statements or in the Disclosure Schedules contains
any untrue statement of a material fact or omits to state any material fact that
would make the statements herein or therein, in light of the circumstances under
which they were made, false or misleading.
3.22 REAL PROPERTY
(a) TITLE; CONDITION OF IMPROVEMENTS. Each Entity owns fee
simple title to or holds a valid leasehold in the real property where
the Restaurants are located. The Restaurant building and the other
improvements located therein are in a good state of repair, and no
appropriate maintenance has been delayed or deferred. The Shareholders
shall indemnify and hold Outback and OSI harmless from the cost of any
extraordinary repairs which are identified by Outback in writing within
six months of the Effective Date following the Effective Date, and the
Shareholders assume the joint and several burden and shall pay for all
costs of extraordinary repairs to the improvements during such period.
For purposes of this SECTION 3.22(A) "extraordinary repairs" means
repairs that (i) are not properly considered part of normal, on-going
maintenance, (ii) cost in excess of Five Thousand Dollars ($5,000.00)
for any individual Entity, and (iii) are not attributable to the acts
of Outback subsequent to the Closing, (iv) are not caused by acts of
God, (v) are not the responsibility of the landlord of the property
pursuant to the lease agreement for the premises, and (vi) would not be
covered by the type of property insurance required to be carried by
SECTION 11.2 of the Franchise Agreements.
(b) HAZARDOUS WASTE MATERIALS. Each Entity represents and
warrants that the operations of the Restaurants have not resulted in a
release of hazardous waste materials at the real property on which the
Restaurants are located, the real property on which the Restaurants are
located has not and will not be used for the disposal or storage of
hazardous waste materials by the Entities, and the Entities have no
knowledge of any storage or disposal of hazardous waste materials by
any third parties. Subject to SECTION 12.2 and the limits on indemnity
contained therein, the Shareholders agree to defend, indemnify and hold
harmless Outback and OSI from and against any and all claims, demands,
judgments, damages, actions, causes of action, injuries, administrative
orders, consent agreements and orders, liabilities, penalties, costs
and expenses of any kind whatsoever, including claims arising out of
loss of life, injury to persons, property or business or damage to
natural resources in connection with the activities of the Shareholders
or the Entities, or accident or event caused by any act or omission of
the Shareholders or the Entities which: (i) arises out of the actual,
alleged or threatened discharge, dispersal, release, storage,
treatment, generation, disposal or escape of pollutants or other toxic
or hazardous substances, including any solid, liquid, gaseous or
thermal irritant or contaminant, including smoke, vapor, soot fumes,
acids, alkalis, chemicals and waste (including materials to be
recycled, reconditioned or reclaimed); or (ii) actually or allegedly
arises out of the use or inclusion of any product, material or process
containing chemicals, or the failure to detect the existence or
proportion of chemicals in the soil, air, surface water or groundwater,
or the performance or failure to perform the abatement of any pollution
source or the replacement or removal of any soil, water, surface water
or ground water containing chemicals. Subject to SECTION 12.2 and the
limits on indemnity contained therein, each Shareholder shall bear, pay
and discharge when and as the same become due and payable, any and all
such judgments or claims for damages, penalties or otherwise against
the Shareholders, the Entities, Outback, or OSI, shall hold Outback and
OSI harmless from those judgments or claims, and shall assume the
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burden and expense of defending all suits, administrative proceedings
and negotiations of any description with any and all persons, political
subdivisions or government agencies arising out of any of the
occurrences set forth above.
(c) LEASEHOLDS. With respect to leased real property, to the
best knowledge of the Entities, each landlord has fully performed all
obligations of such landlord, no obligations remain unperformed except
for normal and customary maintenance obligations. Neither the landlords
nor the Entities are in default under their leases, nor has any event
occurred that, with the passage of time or the giving of notice or
both, would constitute a default thereunder by either an Entity or a
landlord. Neither the landlords nor the Entities have any claim or
dispute with the other.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
The Shareholders represent and warrant to OSI and Outback as follows:
4.1 AUTHORITY AND VALIDITY. They have the capacity and authority
to execute, deliver and perform this Agreement and all other agreements and
documents they are executing or will execute in connection herewith or
therewith.
4.2 BINDING EFFECT. This Agreement and the other documents
executed or to be executed by the Shareholders in connection with this Agreement
have been or will have been duly executed and delivered by him and are or will
be, when executed and delivered, their legal, valid and binding obligations
enforceable in accordance with their terms except that:
(a) enforceability may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights; and
(b) the availability of equitable remedies may be limited
by equitable principles of general applicability.
4.3 OWNERSHIP.
(a) The Shareholders are the sole record and beneficial
owners of the Corporations' capital stock in the amounts specified on
ITEM 4.3 of the Disclosure Schedules, and no other person has any
rights (in any form) to acquire any capital stock of any of the
Corporations (other than Fleet Bank under the Entities' credit
facility).
(b) The Corporations are the sole partners of TKPH, with
▇▇▇▇▇▇▇ owning a ninety percent (90%) partnership Interest in TKPH and
KPH owning a ten percent (10%) partnership Interest in TKPH.
(c) TKPH and the Proprietors indicated on ITEM 4.3 of the
Disclosure Schedules are the only Partners of the Partnerships. Except
for Outback under the OUTBACK STEAKHOUSE Restaurant Franchise
Agreement, no other person has any interest in the Partnerships nor any
rights (in any form) to acquire any interest in any of the
Partnerships.
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4.4 VOTING. The Shareholders acknowledge that they have voted in
favor of the execution and delivery of this Agreement and the Merger Agreement
in their individual capacities as Shareholders and directors of the
Corporations.
4.5 RESIDENCY. The Shareholders are, and have been at all times
during the one year ending on the date hereof, residents of the state indicated
in their residential address on SCHEDULE I of this Agreement.
4.6 COMPLIANCE WITH OTHER INSTRUMENTS. Neither the execution and
delivery by the Shareholders of this Agreement and the Merger Agreement, nor the
consummation by them of the transactions contemplated hereby and thereby will
violate, breach, be in conflict with or constitute a default under or permit the
termination or the acceleration of maturity of or result in the imposition of
any lien, claim or encumbrance upon any material property or asset of any of the
Shareholders pursuant to any note, bond, indenture, mortgage, deed of trust,
evidence of indebtedness, loan or lease agreement, other agreement or instrument
(including with customers), judgment order, injunction or decree by which any
Shareholder is bound, to which he is a party or to which he is subject.
4.7 STATUS AS S CORPORATION. ▇▇▇▇▇▇▇ Steakhouse, Inc. has validly
elected to be taxed as an S corporation for federal income tax purposes for all
periods since its inception to the date hereof. KPH, Inc. has validly elected to
be taxed as an S corporation for federal income tax purposes for all periods
since January 1, 1996. Such S elections have not been terminated, revoked or
cancelled prior to the Effective Date. Until the Effective Date, such S
elections shall remain in full force and effect.
4.8 SECURITIES LAWS REPRESENTATIONS AND WARRANTIES. Each
Shareholder represents and warrants, as of the date hereof, the Closing Date,
and the Effective Date that:
(a) OSI and Outback have furnished him with all information
requested and full access to materials concerning OSI and Outback which
the Shareholder and/or his advisors deemed necessary to properly
evaluate the Merger. Such information and access have been made
available and utilized to the extent the Shareholder considers
necessary and advisable in making an informed investment decision, and
each Shareholder has consulted his own tax advisor and understands the
evaluation of such materials may require the assistance of experts and
each Shareholder has utilized such experts to the extent deemed
necessary.
(b) The Shareholder understands that the OSI Common Stock to
be received is an investment of a speculative nature and the
Shareholder must bear the risks thereof for an indefinite period of
time. The Shareholder has adequate means for providing for its or his
needs, is able to bear the economic risk of the investment and has no
need for liquidity in the OSI Common Stock to be received in the
Merger.
(c) The Shareholder and/or his representatives or advisors who
have acted with or on behalf of the Shareholders and who have advised
the Shareholder in this matter have such knowledge and experience in
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financial and business matters that the Shareholders are capable of
evaluating the merits and risks of the Merger for OSI Common Stock.
(d) The Shareholder is participating in the Merger solely for
the account of the Shareholder as a private investment, and the
Shareholder has no present agreement, understanding, arrangement or
intention to sell or transfer all or any portion of the shares of OSI
Common Stock to be issued in the Merger to any other person or persons.
The Shareholder does not presently intend to enter into any such
agreement or undertaking and there are no present circumstances which
will compel the Shareholder to sell any OSI Common Stock so received.
(e) The investment by the Shareholder in OSI Common Stock
pursuant to the Merger is a suitable investment for the Shareholder
given the investment goals and objectives of the Shareholder.
(f) The Shareholder agrees to indemnify and hold OSI and
Outback and each of their respective officers, directors and advisors
harmless against all liability arising out of or in connection with any
purchase, resale or distribution by the Shareholder of any OSI Common
Stock received hereby which is effected other than in strict compliance
with the terms hereof and applicable law.
(g) The Shareholder understands that the shares of OSI Common
Stock to be issued in the Merger will not be registered under the
Securities Act, nor any state securities laws, and such OSI Common
Stock may not be sold or transferred except in compliance with such
laws. The Shareholder understands that the shares of OSI Common Stock
issued to the Shareholders in the Merger will be subject to the limited
registration rights described herein and the Shareholder agrees to the
terms hereof. Such rights shall be personal to the Shareholder and
shall automatically terminate with respect to any shares of OSI Common
Stock which the Shareholder assigns or transfers, upon attachment or
seizure by or for the benefit of any creditors of the Shareholder, or
upon the occurrence of any other event which results in a succession to
the ownership of any such OSI Common Stock by operation of law, except
such rights shall inure to the benefit of the estate or heirs of a
deceased Shareholder. Neither OSI nor Outback will have any obligation
to register any such OSI Common Stock other than as provided in ARTICLE
VIII hereof.
(h) The Shareholder is a natural person (i) whose net worth
(the excess of total assets over total liabilities), individually or
jointly with his spouse, exceeds $1,000,000 (inclusive of the value of
home, home furnishings and automobiles); or (ii) who had an Individual
Annual Adjusted Gross Income in excess of $200,000 in each of the two
most recent tax years or joint income with the Shareholder's spouse in
excess of $300,000 in each of those years and reasonably expects to
reach the same income level in the current tax year; or (iii) is an
officer or director of one or more of the Corporations.
4.9 REFINANCING OF MANCHESTER DEBT. The parties acknowledge that
▇▇▇▇▇▇▇ Realty Group, Inc., a Connecticut corporation owned by the Shareholders
("TRG") is the owner of the land in Manchester, Connecticut on which one of the
Restaurants is located ("Connecticut Land"). The parties further acknowledge
that Six Hundred Fifty Thousand Dollars ($650,000) was drawn under the Entities'
Fleet Bank credit facility and used by TRG for the purpose of refinancing
indebtedness on the Land in November, 1997. Prior to the Closing Date the
Shareholders shall refinance the Land in a manner that does not constitute a
liability of any Entity and shall solely from the proceeds of such refinancing,
reduce the Entities' Fleet Bank credit facility by not less than Six Hundred
Fifteen Thousand Dollars ($615,000).
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF OSI AND OUTBACK
OSI and Outback jointly and severally represent and warrant to the
Entities and the Shareholders as follows:
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5.1 ORGANIZATION AND GOOD STANDING. OSI and Outback are
corporations duly organized, validly existing and in good standing under the
laws of the States of Delaware and Florida, respectively.
5.2 FOREIGN QUALIFICATION. Each of OSI and Outback is duly
qualified or licensed to do business and in good standing as a foreign
corporation in every jurisdiction where the failure to so qualify could have a
material adverse effect on their respective business, operations, assets or
financial condition.
5.3 POWER AND AUTHORITY. OSI and Outback each have the corporate
power and authority and all licenses and permits required by governmental
authorities to own, lease and operate their respective properties and assets and
to carry on their respective business as currently being conducted.
5.4 AUTHORITY AND VALIDITY. OSI and Outback each have the
corporate power and authority to execute, deliver and perform their respective
obligations under this Agreement, the Merger Agreement and the other documents
executed or to be executed by OSI and Outback in connection with this Agreement
and the execution, delivery and performance by OSI and Outback of this
Agreement, the Merger Agreement and the other documents executed or to be
executed by OSI and Outback in connection with this Agreement have been duly
authorized by all necessary corporate action.
5.5 BINDING EFFECT. This Agreement, the Merger Agreement and the
other documents executed or to be executed by OSI and Outback in connection with
this Agreement have been or will have been duly executed and delivered by OSI
and Outback and are or will be, when executed and delivered, the legal, valid
and binding obligations of OSI and Outback, enforceable in accordance with their
terms except that:
(a) enforceability may be limited by bankruptcy, insolvency or
other similar laws affecting creditors' rights; and
(b) the availability of equitable remedies may be limited by
equitable principles of general applicability.
5.6 COMPLIANCE WITH OTHER INSTRUMENTS. Neither the execution and
delivery by OSI and/or Outback of this Agreement, the Merger Agreement, nor the
consummation by them of the transactions contemplated hereby and thereby will
violate, breach, be in conflict with or constitute a default under or permit the
termination or the acceleration of maturity of or result in the imposition of
any lien, claim or encumbrance upon any property or asset of OSI or Outback
pursuant to, the certificate of incorporation or bylaws of OSI or Outback or any
note, bond, indenture, mortgage, deed of trust, evidence of indebtedness, loan
or lease agreement, other agreement or instrument, judgment order, injunction or
decree by which OSI or Outback is bound, to which it is a party or to which its
assets are subject.
5.7 CAPITALIZATION OF OS. The authorized capital stock of OSI
consists of Two Hundred Million (200,000,000) shares of Common Stock, $.01 par
value and Two Million (2,000,000) shares of Preferred Stock, $.01 par value, of
which approximately Seventy-Four Million Two Hundred Fifty-Five Thousand and
Forty-Seven (74,255,047) shares of Common Stock and no shares of Preferred Stock
were issued and outstanding as of August 31, 1999. All of the issued and
outstanding shares of OSI Common Stock have been duly authorized and validly
issued and are fully paid and nonassessable and are free from any preemptive
rights. The shares of OSI Common Stock to be issued in exchange for the
Corporation's capital stock at the Effective Date, when issued and delivered,
will be duly authorized, validly issued, fully paid and nonassessable. As of the
date hereof, except for (i) employee and director stock options to acquire
▇▇
▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, (▇▇) employee stock ownership plans, and (iii)
agreements with joint venture partners and other franchisees of Outback for
transactions similar to the Merger, there are no options, warrants or other
rights, agreements or commitments outstanding obligating Outback or OSI to issue
shares of its capital stock. All of the outstanding shares of capital stock of
Outback are owned by OSI, free and clear of any lien or encumbrance.
5.8 SEC REPORT. OSI has delivered to the Entities and the
Shareholders true and complete copies of (i) OSI Annual Report on Form 10-K,
Proxy Statement and Annual Report to Shareholders for the year ended December
31, 1998 and (ii) all periodic reports, if any, on Form 8-K and Form 10-Q filed
with the Securities and Exchange Commission since December 31, 1998 to the date
hereof. Such documents and reports did not on their dates or the date of filing,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. OSI has
filed all material documents required to be filed by it with the SEC and all
such documents complied as to form in all material respects with the applicable
requirements of law. All financial statements and schedules included in the
documents referred to in this SECTION 5.8 were prepared in accordance with
generally accepted accounting principles, applied on a consistent basis except
as noted therein and fairly present the information purported to be shown
therein.
5.9 LITIGATION AND GOVERNMENT CLAIMS. There is no pending suit,
claim, action or litigation or administrative, arbitration or other proceeding
or governmental investigation or inquiry against OSI or Outback or to which
their assets are subject, which would, severally or in the aggregate, have a
material adverse effect on the business, results of operations, assets or the
condition, financial or otherwise, of OSI and its subsidiaries, taken as a
whole. There are no such proceedings threatened or, to the knowledge of OSI or
Outback, contemplated or any unasserted claims (whether or not the potential
claimant may be aware of the claim), which might, severally or in the aggregate
have a material adverse effect on the business, results of operations, assets or
the condition, financial or otherwise, of OSI and its subsidiaries, taken as a
whole.
5.10 NECESSARY APPROVALS AND CONSENTS. Other than (a) in connection
with or in compliance with the laws of the State of Florida with respect to
effectuating the Merger, (b) consents required to be obtained from applicable
liquor control authorities, (c) approval under the HSR Act, and (d) consents
required to be obtained from lessors, no authorization, consent, permit or
license or approval of or declaration, registration or filing with, any person
or governmental or regulatory authority or agency is necessary for the execution
and delivery by OSI and Outback of this Agreement, the Merger Agreement and the
other agreements executed or to be executed by either of them in connection with
this Agreement and the consummation by OSI and Outback of the transactions
contemplated by this Agreement and the Merger Agreement, including the issuance
of the OSI Common Stock to the Shareholders in connection with the Merger.
5.11 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed in
public filings by OSI with the Securities and Exchange Commission prior to the
date hereof and the Closing Date, since December 31, 1998, there has not been
any material adverse change in the financial condition, results of operations or
the business, properties, assets or liabilities of Outback or OSI.
ARTICLE VI
JOINT COVENANTS OF THE ENTITIES,
THE SHAREHOLDERS, OSI AND OUTBACK
The Entities and the Shareholders, jointly and severally, on the one
hand, and OSI and Outback, jointly and severally on the other hand, covenant
with each other as follows:
6.1 NOTICE OF ANY MATERIAL CHANGE. Until the Effective Date, the
Entities, the Shareholders, OSI and Outback shall, promptly after the first
notice or occurrence thereof but prior to the Effective Date, advise the others
in writing of any event or the existence of any state of facts that:
(a) would make any of its representations and warranties in
this Agreement untrue in any material respect; or
(b) would otherwise constitute a material adverse change in
the business, results of operation, working capital, assets,
liabilities or condition (financial or otherwise) of OSI, Outback or
the Entities and their respective subsidiaries, taken as a whole. No
supplement or amendment to any Disclosure Schedule shall have any
effect for the purpose of determining the satisfaction of or compliance
with the conditions to the obligations of the parties to consummate the
Merger set forth elsewhere in this Agreement.
6.2 COOPERATION. Until the Effective Date, the parties hereto
shall and shall cause each of their affiliates to use its best efforts to:
(a) proceed promptly to make or give the necessary
applications, notices, requests and filings to obtain at the earliest
practicable date and, in any event, before the Closing Date, the
approvals, authorizations and consents necessary to consummate the
transactions contemplated by this Agreement;
(b) cooperate with and keep the other informed in connection
with this Agreement; and
(c) take such actions as the other parties may reasonably
request to consummate the transactions contemplated by this Agreement
and use their best efforts and diligently attempt to satisfy, to the
extent within its control, all conditions precedent to the obligations
to close this Agreement.
6.3 TERMINATION OF AGREEMENTS. At the Effective Date all existing
development agreements and franchise agreements between Outback, as franchisor,
and any Entity or Shareholder, as franchisee, shall be, without further action
by any party, terminated; PROVIDED, HOWEVER, no party (or other person bound
thereby) shall be released from the post termination covenants regarding
confidentiality, noncompetition, and nonsolicitation contained in Article VI of
the OUTBACK STEAKHOUSE Restaurant Franchise Agreement nor be released with
respect to acts and events occurring prior to such termination in any agreement
or guaranty executed by a Shareholder pursuant to an OUTBACK STEAKHOUSE
Restaurant Franchise Agreement.
6.4 ADDITIONAL AGREEMENTS.
(a) Subject to the terms and conditions herein provided, the
parties hereto agree to use all reasonable efforts to take or cause to
be taken, all actions and to do or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this
Agreement, including using all reasonable efforts to obtain all
necessary waivers, consents and approvals, to effect all necessary
registrations and filings and to lift any injunction or other legal bar
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to the Merger (and, in such case, to proceed with the Merger as
expeditiously as possible), subject, however, to the appropriate vote
of the Shareholders.
(b) In case at any time after the Effective Date any further
action is necessary or desirable to carry out the purposes of this
Agreement, the proper officers and/or directors of OSI and Outback and
the Shareholders shall take all such necessary action.
(c) Neither Outback or OSI nor any Entity or Shareholder shall
take any action which would jeopardize the characterization of each
Merger as a reorganization within the meaning of Section 368(a) of the
Code or the treatment of each Merger for financial reporting purposes
as a pooling of interests.
ARTICLE VII
COVENANTS OF THE ENTITIES AND THE SHAREHOLDERS
Each Entity and Shareholder covenants and agrees with OSI as follows:
7.1 ACCESS; CONFIDENTIALITY. During the period pending the Closing
Date, the Entities shall afford to OSI and to OSI officers, employees,
accountants, counsel and other authorized representatives, full access during
regular business hours to their assets, properties, books, contracts,
commitments and records and will furnish or use their best efforts to cause
representatives to furnish promptly to OSI such additional financial and
operating data and other documents and information (certified if requested and
reasonably susceptible to certification) relating to their respective businesses
and properties as OSI or its duly authorized representatives may from time to
time reasonably request. OSI shall cause all information obtained by it or its
representatives pursuant to this Agreement or in connection with the negotiation
hereof to be treated as proprietary and confidential (other than information
that is a matter of public knowledge or is already known by OSI) and shall not
use in its business or for any other purpose or disclose or knowingly permit
others to use or disclose, any such information in a manner detrimental to the
Entities or the Shareholders and, if for any reason the transactions
contemplated by this Agreement are not consummated, will return all such
information to the Entities. As soon as practicable after the Effective Date,
the Shareholders shall deliver to Outback all books and records of the Entities.
7.2 SHAREHOLDERS' CONSENT. Each Corporation shall use its best
efforts to obtain Shareholder approval for the Merger. The Board of Directors
shall recommend that the Shareholders of such Corporation vote in favor of and
approve the Merger and the adoption of this Agreement.
7.3 CONDUCT OF BUSINESS PRIOR TO CLOSING DATE. From the date
hereof to the Effective Date, the Entities and the Shareholders shall:
(a) conduct the business operations of the Restaurants and
Entities in the ordinary and usual course of business consistent with
past and current practices and shall use their best efforts to maintain
and preserve intact their business organizations and goodwill, to
retain the services of their key officers and employees and to maintain
satisfactory relationships with suppliers, distributors and others
having business relationships with them;
(b) confer on a regular and frequent basis with one or more
representatives of OSI to report material operational matters and the
general status of ongoing operations;
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(c) notify OSI of any emergency or other change in the normal
course of the Entities' business and of any governmental complaints,
investigations or hearings (or communications indicating that the same
may be contemplated) if such emergency, change, complaint,
investigation or hearing would be material to any of the Entities'
business or properties including, without limitation, complaints,
investigations or hearings relating to any liquor licenses or permits
held by any of the Entities or to the transfer to or assumption by
Outback of such licenses or permits;
(d) not solicit or authorize any person to solicit or
encourage, directly or indirectly, any inquiry or proposal for the
acquisition of all or any material part of the capital stock of any
Corporation or Partnership Interests, the assets or business of any of
the Entities, or for the merger or other acquisition of any of the
Entities with or by any other person or entity or enter into
negotiations for any such proposal or provide any person with
information or assistance in furtherance of any such inquiry or
proposal, other than the transactions contemplated by this Agreement,
and shall promptly notify OSI orally and in writing of all inquiries or
proposals received with respect to such matters; and
(e) take no action (or fail to take any action) which would
cause or permit their representations and warranties contained in this
Agreement to be untrue in any material respect at the Effective Date.
7.4 SECURITIES LAW COMPLIANCE; RESTRICTIONS ON SHARES. At the
Closing, the Shareholders shall obtain and deliver to Outback and OSI the
written agreement of each Shareholder (except that OSI acknowledges and agrees
that the Shareholders shall not be required and may not be able to obtain an
agreement from Shareholders who exercise their dissenter's rights under
applicable State Law), wherein such Shareholder shall: (i) acknowledge receipt
of this Agreement and all schedules and exhibits and the documents furnished to
the Entities and the Shareholders pursuant to SECTION 5.8 and the opportunity to
ask questions of and receive answers from representatives of the management of
OSI concerning the terms and conditions of the transactions contemplated hereby
and to obtain all additional information that OSI possesses or could acquire
without unreasonable expense that is necessary to verify the accuracy of
information furnished to him and (ii) acknowledge and agree that:
(a) the shares of OSI Common Stock to be received by him as a
result of the Merger have not been registered under the Securities Act
or any applicable state securities law;
(b) the Shareholder is acquiring the shares of OSI Common
Stock to be received by him as a result of the Merger for his own
account and not with a view to the distribution or resale thereof and
will not sell or otherwise transfer the shares unless they are
registered under the Securities Act and applicable state securities
laws or, in the opinion of OSI and its counsel, an exemption from
registration is available therefor;
(c) in view of the foregoing, such Shareholder understands
that he is at economic risk with respect to his investment in the
shares so received in the Merger;
(d) OSI will place an appropriate legend on the certificate
representing OSI Common Stock to be received restricting their transfer
and stop transfer instructions will be given to the transfer agent for
the OSI Common Stock with respect to such certificates; and
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(e) warrants to OSI that he is an accredited investor and will
provide such information as may be requested by OSI in order for OSI to
verify that such Shareholder is an accredited investor for purposes of
Regulation D promulgated under the Securities Act.
7.5 POOLING. At the Closing Date, the Shareholders shall obtain
and deliver to Outback and OSI the written agreement of each Shareholder that,
until such time as financial results of OSI covering at least thirty (30) days
of combined operations of OSI and the Entities subsequent to the Effective Date
have been published, he will not sell or otherwise dispose of any shares of OSI
Common Stock held by him as of the Effective Date or any of such shares
thereafter acquired by him at any time or from time to time prior to the date of
such publication. OSI shall give instructions to its transfer agent and
registrar, Bank of New York, Inc., with respect to the shares of OSI Common
Stock issued pursuant to the Merger, to the effect that no transfer of such
shares shall be effected until the date on which the requisite financial results
have been published and OSI and the transfer agent may take any action,
including placing an appropriate legend on the certificates, they deem necessary
to enforce this provision. OSI shall use its best efforts to publish such
financial results on or before January 31, 2000.
7.6 CURRENT FINANCIAL STATEMENTS. Within fifteen (15) days of the
Effective Date, the Shareholders shall furnish to OSI the unaudited balance
sheets of each Entity as of November 30, 1999, and the related unaudited
statements of income for the period then ended, certified by their respective
chief financial officer. The Entities and the Shareholders shall be deemed to
make the same representations and warranties, as appropriate, regarding such
financial statements as are made in SECTION 3.9 hereof.
7.7 AGREEMENTS OF SHAREHOLDERS. At the Closing the Shareholders
shall deliver to Outback the written agreement of each Shareholder in form and
substance acceptable to Outback whereby such person:
(a) agrees to waive any right of first refusal or other option
to purchase shares in any of the Corporations; and
(b) agrees to maintain the confidentiality of all information
regarding the OUTBACK STEAKHOUSE System; and
(c) agrees not to solicit any employees of Outback, its
franchisees or affiliates; and
(d) agrees not to compete with Outback in the casual dining
steakhouse restaurant business for a period of two years following the
Effective Date; and
(e) makes representations and warranties to Outback and OSI,
and covenants and agreements, identical to those provided for in
SECTION 4.8 and SECTION 7.4; provided however, that any Shareholder may
own not more than five percent (5%) of any class of securities of any
corporation that is publicly traded so long as such ownership is for
investment purposes only.
ARTICLE VIII
COVENANTS OF OSI AND OUTBACK
OSI and Outback, jointly and severally, covenant and agree with the
Shareholders as follows:
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8.1 MANDATORY REGISTRATION OF OSI COMMON STOCK.
(a) The Shareholders, by vote of the Shareholders who own a
majority of the OSI Common Stock received by all of the Shareholders
pursuant to the Merger, shall have the right to require OSI, by written
notice to OSI at any time after January 1, 2000 and prior to February
1, 2000 to cause a registration statement to be filed under the
Securities Act, as then in effect or under any similar federal statute
then in effect, to be effected as soon as practicable, but not later
than January 15, 2000, with respect to all or any portion of the OSI
Common Stock then held by the Shareholders and specified in such notice
(hereinafter, collectively the "Registrable Shares") and OSI will use
its best reasonable efforts to cause such registration statement as may
be so requested to be effective at the earliest date on which the
Shareholders may sell shares of OSI Common Stock without jeopardizing
the accounting treatment of the Merger as a pooling of interests, and
to be kept effective for a period (not to exceed forty-five (45) days)
as would permit or facilitate, to the extent so requested, the sale and
distribution of the Registrable Shares, including, without limitation,
appropriate related registration or qualification under applicable
state securities or "blue sky" laws; PROVIDED, HOWEVER, that the
maximum number of Registrable Shares under this SECTION 8.1(A) shall be
a number of shares equal to twenty-five percent (25%) of the total
number of shares of OSI Common Stock issued pursuant to the Merger,
allocated among the Shareholders in such amounts as they shall
unanimously agree in writing.
(b) Notwithstanding the foregoing, OSI shall not be required
to effect any registration, qualification or compliance under this
SECTION 8.1 if and to the extent, in the opinion of counsel for OSI
(which opinion shall also be addressed to the Shareholders requesting
registration of Registrable Shares), the proposed public offering or
transfer of the number of Registered Shares, as to which registration
is requested, is exempt from registration under the Securities Act and
the securities laws of the states in which the Registrable Shares are
to be sold or transferred and the Registrable Shares would not
constitute restricted securities in the hands of the purchaser or
transferee.
(c) OSI shall be entitled to postpone the filing or
effectiveness of any registration statement otherwise required to be
prepared and filed by OSI pursuant to this SECTION 8.1, for a
reasonable period of time, but not in excess of ninety (90) days (a
"Blackout Period"), if any executive officer of OSI determines that in
such executive officer's reasonable judgment and good faith that the
registration and distribution of the Registrable Shares would
materially interfere with any pending financing, acquisition, or
corporate reorganization or other corporate development involving OSI
or any of its subsidiaries or would require premature disclosure
thereof and promptly gives the Shareholders holding the Registrable
Shares written notice of such determination containing a general
statement of the reasons for such postponement and an approximation of
the anticipated delay; PROVIDED, HOWEVER, that the aggregate number of
days included in all Blackout Periods during any consecutive twelve
(12) months during the shall not exceed one hundred eighty (180) days;
and PROVIDED, FURTHER, HOWEVER, that a period of at least thirty (30)
days shall elapse between the termination of any Blackout Period and
the commencement of the immediately succeeding Blackout Period. If OSI
shall so postpone the filing of a registration statement the
Shareholders holding the Registrable Shares shall have the right to
withdraw the request for registration by giving written notice from the
holders of a majority of the Registrable Shares to OSI within twenty
(20) days after receipt of the notice of postponement (and, in the
event of such withdrawal, such request shall not be counted for
purposes of determining the number of, or required timing for, requests
for registration to which the holders of the Registration Shares are
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entitled pursuant to SECTION 8.1(A) or for purposes of determining the
number of days that the registration statement is kept effective..
(d) Notwithstanding the foregoing, OSI shall not be required
by this SECTION 8.1 to register Registrable Shares under the Securities
Act or under any state securities law at any time after the date one
year following the Effective Date (or such other date as coincides with
the expiration of the general holding period requirement under Rule
144, should the general holding period requirement of Rule 144 or any
successor rule be modified), if OSI is then and has been throughout
such period, current in all filings required to comply with the current
public information requirement of Rule 144.
8.2 REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by OSI pursuant to SECTION 8.1, OSI will:
(a) keep each holder of Registrable Shares advised in writing
at the initiation of proceedings of each registration, qualification or
compliance and as to the completion thereof;
(b) furnish each holder of Registrable Shares with such number
of prospectuses, including a preliminary prospectus and such other
documents as may be reasonably requested; and
(c) keep such registration, qualification or compliance
effective until all sales or distributions contemplated in connection
therewith are completed; PROVIDED, HOWEVER, that OSI shall not be
obligated to keep such registration, qualification or compliance
effective for more than forty-five (45) days.
8.3 EXPENSES OF REGISTRATION. All expenses incurred in connection
with any registration, qualification or compliance effected by OSI pursuant to
this ARTICLE VIII, including, without limitation, all registration and filing
fees, fees and expenses of complying with securities and blue sky laws, printing
expenses, fees and disbursements of counsel for OSI and all expenses of any
special audits incidental to or required by such registration (collectively, the
"Registration Expenses") shall be borne by OSI. Each holder of Registrable
Shares shall be responsible for all fees and disbursements of counsel retained
by such holders to provide necessary opinions or otherwise and for the costs of
any special audits of any Entity incidental to or required for such
registration.
8.4 ADJUSTMENTS IN NUMBER OF SHARES. If the outstanding shares of
OSI Common Stock shall have been changed into a different number of shares or a
different class by reason of any reclassification, recapitalization, split up,
combination, exchange of shares or readjustment, or a stock dividend thereon
shall be declared, with a record date subsequent to the Effective Date and prior
to the sale of all Registrable Shares, the number of Registrable Shares shall be
adjusted to accurately reflect such change.
8.5 TRANSFEREES. The rights of the Shareholders under SECTION 8.1
are personal to each Shareholder and shall not inure to the benefit of any other
Shareholder nor any transferee or assignee of a Shareholder's OSI Common Stock;
PROVIDED, HOWEVER, such rights shall inure to the benefit of donees of BONA FIDE
gifts who are members of the donor's immediate family.
8.6 EMPLOYMENT AGREEMENTS. Solely with respect to the Merger, and
any consequential termination of any Entity by operation of law, Outback agrees
not to elect to terminate the Employment Agreements between any of the Entities,
as employer, and the Proprietors of the Entities' OUTBACK STEAKHOUSE
restaurants, as employees. Outback shall succeed to all rights and obligations
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of the Entities under such Employment Agreements. Nothing contained herein shall
be construed as in any way limiting Outback's right to terminate any such
Employment Agreement as a result of any circumstance or event other than the
Merger and consequential termination of any Entity by operation of law.
ARTICLE IX
JOINT CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS
Except as may be waived by OSI or the Shareholders, the obligations of
the Entities, the Shareholders, OSI and Outback to consummate the transactions
contemplated by this Agreement shall be subject to the satisfaction, on or
before the Closing Date, of each of the following conditions:
9.1 CONSENTS TO TRANSACTION. Except for such consents and
approvals as have been expressly waived in writing by OSI on or prior to the
Closing Date, the Entities, Outback and OSI shall have received all consents or
approvals and made all applications, requests, notices and filings with, any
person, governmental authority or governmental agency required to be obtained or
made in connection with the consummation of the transactions contemplated by
this Agreement. There shall have been obtained from all state and local
governments and governmental agencies all approvals and consents necessary to
enable the Entities to transfer their liquor licenses and permits to Outback, to
enable Outback to assume such licenses and permits or to enable Outback to
operate restaurants (of the kind and quality customarily operated by Outback)
using such permits or licenses. Copies of all consents and approvals received by
any party pursuant to this SECTION 9.1 shall be furnished to the other party.
9.2 ABSENCE OF LITIGATION. No governmental agency or authority
shall have instituted or threatened in writing to institute, any action or
proceeding seeking to delay, restrain, enjoin or prohibit the consummation of
the transactions contemplated by this Agreement and no order, judgment or decree
by any court or governmental agency or authority shall be in effect that
enjoins, restrains or prohibits the same or otherwise would materially interfere
with the operation of the assets and business of the Entities or OSI and its
subsidiaries, including the surviving corporation in the Merger, after the
Closing Date.
9.3 DISSENTER'S RIGHTS. The number of shares of capital stock of
the Corporations for which Shareholders have exercised appraisal or dissenters'
rights under State Law shall be a number which, in the sole and absolute
discretion of OSI, does not jeopardize the financial reporting and accounting
treatment of the Merger specified in SECTION 2.12 or is otherwise not contrary
to the best interests of Outback or OSI.
9.4 HSR ACT. The waiting period (and any extension thereof)
applicable to the consummation of the Merger under the HSR Act shall have
expired or have been terminated.
ARTICLE X
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ENTITIES
Except as may be waived by the Entities and the Shareholders, the
obligations of the Entities and the Shareholders to consummate the transactions
contemplated by this Agreement shall be subject to the satisfaction on or before
the Closing Date of each of the following conditions:
10.1 COMPLIANCE. OSI and Outback shall have, or shall have caused
to be, satisfied or complied with and performed in all material respects all
terms, covenants and conditions of this Agreement to be complied with or
performed by OSI and Outback on or before the Closing Date.
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10.2 REPRESENTATIONS AND WARRANTIES. All of the representations and
warranties made by OSI and Outback in this Agreement, and in all certificates
and other documents delivered by OSI and Outback to the Entities and the
Shareholders pursuant hereto or in connection with the transactions contemplated
hereby, shall have been true and correct in all material respects as of the date
hereof and shall be true and correct in all material respects at the Closing
Date with the same force and effect as if such representations and warranties
had been made at and as of the Closing Date, except for changes permitted or
contemplated by this Agreement.
10.3 OPINION. The Entities and the Shareholders shall have received
the opinion of counsel for OSI and Outback, dated as of the Closing Date, in
form and substance reasonably satisfactory to the Entities and the Shareholders
and their counsel, as to the matters specified in SECTIONS 5.1, 5.2, 5.3, 5.4,
5.5, and 5.7 and, to the knowledge of such counsel, as to the matters specified
in SECTIONS 5.6, 5.9, and 5.10.
10.4 MATERIAL ADVERSE CHANGES. Since the date of this Agreement,
there shall have occurred no material adverse change in the business,
properties, assets, liabilities, results of operations or condition, financial
or otherwise, of OSI and Outback, taken as a whole.
10.5 CERTIFICATES. The Entities and the Shareholders shall have
received a certificate or certificates, executed on behalf of OSI by the Chief
Executive Officer, the President or the Chief Financial Officer of OSI, to the
effect that the conditions contained in SECTION 9.1 and SECTION 9.2 hereof with
respect to matters therein relating to OSI and in SECTIONS 10.1, 10.2 and 10.4
hereof, have been satisfied and shall have received the Certificate attached
hereto as EXHIBIT 10.5.
ARTICLE XI
CONDITIONS PRECEDENT TO OBLIGATIONS OF OSI AND OUTBACK
Except as may be waived by OSI and Outback, the obligations of OSI and
Outback to consummate the transactions contemplated by this Agreement shall be
subject to the satisfaction, on or before the Closing Date, of each of the
following conditions:
11.1 COMPLIANCE. The Entities and the Shareholders shall have or
shall have caused to be satisfied or complied with and performed in all material
respects all terms, covenants and conditions of this Agreement to be complied
with or performed by any of them on or before the Closing Date.
11.2 REPRESENTATIONS AND WARRANTIES. All of the representations and
warranties made by the Entities and/or the Shareholders in this Agreement, the
Disclosure Schedules, and in all certificates and other documents delivered by
the Entities or the Shareholders pursuant hereto or in connection with the
transactions contemplated hereby, shall have been true and correct in all
material respects as of the date hereof and shall be true and correct in all
material respects at the Closing Date with the same force and effect as if such
representations and warranties had been made at and as of the Closing Date,
except for changes permitted or contemplated by this Agreement.
11.3 SECURITIES LAW COMPLIANCE. Stock in the Merger, in the opinion
of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for OSI, shall be exempt from registration or
qualification under the Securities Act and all applicable state securities laws.
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11.4 OPINIONS. OSI shall have received the opinion of counsel for the
Entities, dated as of the Closing Date, in the form attached hereto as EXHIBIT
11.4.
11.5 CURRENT FINANCIAL STATUS. OSI shall have received the Financial
Statements specified in SECTION 7.6.
11.6 MATERIAL ADVERSE CHANGES. Since the date of the Current Financial
Statements there shall have occurred no material adverse change in the business,
properties, assets, liabilities, results of operations or condition, financial
or otherwise, of any of the Entities.
11.7 POOLING. OSI shall have received a letter from
PriceWaterhouseCooper, in form and substance satisfactory to OSI and dated not
more than five days prior to the Closing Date, to the effect that the Merger
shall qualify as a pooling of interests for financial reporting purposes.
11.8 CERTIFICATES. OSI shall have received a certificate or
certificates, executed on behalf of each Entity by the President of the Entity,
and by the Shareholders to the effect that the conditions in SECTIONS 9.1 and
9.2 with respect to matters therein relating to the Entities, and/or the
Shareholders, and SECTIONS 11.1, 11.2 and 11.6 hereof, have been satisfied.
ARTICLE XII
INDEMNIFICATION
The Shareholders, jointly and severally, on the one hand, and OSI and
Outback, jointly and severally, on the other hand, agree as follows:
12.1 SECURITIES LAWS INDEMNIFICATION. With respect to each Shareholder
participating in a registration pursuant to SECTION 8.1:
(a) OSI shall indemnify, to the extent permitted by law, the
Shareholders against all losses, claims, damages, liabilities or
expenses which arise out of or are based upon any untrue or alleged
untrue statement of material fact contained in any registration
statement (including any post effective amendment or supplement
thereto), prospectus or preliminary prospectus or any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
except insofar as the same are caused by or contained in any written
information furnished to OSI by the Shareholders for use therein or by
the failure of a Shareholder to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after
OSI has furnished the Shareholders with a sufficient number of copies
of the same.
(b) Notwithstanding any contrary provision of this Agreement,
as a condition to receiving the registration rights provided for in
SECTION 8.1 hereof, the Shareholders, severally, not jointly, shall
indemnify in writing, to the extent permitted by law, OSI, its
directors and officers and each person who controls OSI (within the
meaning of Section 15 of the Securities Act and Section 20 of the
Securities Exchange Act of 1934 as amended) against any losses, claims,
damages, liabilities and expenses which arise out of or are based upon
any untrue or alleged omission of a material fact required to be stated
in the registration statement or prospectus or any amendment thereof or
supplement thereto or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or
omission is contained in any written information furnished by such
Shareholder for inclusion in the registration statement except that the
Shareholders shall not be required to so indemnify Outback or OSI if
such shareholder shall have furnished to Outback or OSI not less than
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five (5) business days prior to the registration statement becoming
effective, written information correcting such material misstatement or
omission and Outback or OSI shall have failed to include such
information in an amendment or supplement to the prospectus.
12.2 INDEMNIFICATION BASED ON AGREEMENT. Subject to the provisions of
SECTION 13.4, the Shareholders, jointly and severally, shall indemnify and hold
harmless OSI, Outback and the Entities, and OSI, Outback and the Entities,
jointly and severally, shall indemnify and hold harmless the Shareholders,
against any losses, claims, damages, liabilities or expenses to which such
indemnified party may become subject, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) arise out of or are
based upon any facts or circumstances that would constitute a breach by the
other (and in the case of the Shareholders' indemnification obligations a breach
by any Entity) of any representation, warranty or covenant contained herein or
in any agreement or certificate executed pursuant hereto and will reimburse any
legal or other expenses reasonably incurred by any indemnified party in
connection with investigating or defending any such loss, claim, damage,
liability or action (collectively "Damages").
In addition to the above, the Shareholders, jointly and severally,
shall indemnify OSI, Outback and the Entities, as provided in the first
paragraph of this SECTION 12.2, against any Damages arising out of any tax
liability of any of the Entities for any period prior to the Effective Date
except only the tax liabilities specified on the Current Financial Statements
and the Corporate Excise Taxes. The Shareholders shall have no obligation under
SECTION 12.2 to indemnify OSI, Outback or the Entities for any liability, loss,
claim or damage arising out of or based upon events first occurring on or after
the Effective Date. OSI and Outback shall indemnify the Shareholders against any
loss, claim, damage or liability arising out of or based upon events first
occurring after the Effective Date.
Notwithstanding any contrary provision hereof (A) OSI, Outback and the
Entities shall not be entitled to indemnification by the Shareholders under this
SECTION 12.2 for Damages until the cumulative, aggregate amount of Damages
incurred exceeds Fifty Thousand Dollars ($50,000); provided, however, this
provision shall not apply to (i) Corporate Excise Taxes in excess of $400,000,
or (ii) legal and accounting fees liability in excess of $300,000, and (B) the
cumulative, aggregate liability of the Shareholders for their indemnification
obligations under this SECTION 12.2 (other than for tax liabilities of the
Entities for periods prior to the Effective Date, but not the Corporate Excise
Taxes) shall be limited to Twelve Million Dollars ($12,000,000). Once the
Shareholders have expended (on a cumulative, aggregate basis), Twelve Million
Dollars ($12,000,000) in satisfaction of their indemnification obligations under
this SECTION 12.2 (other than for tax liabilities of the Entities for periods
prior to the Effective Date, but not the Corporate Excise Taxes), the
Shareholders shall be released from any further indemnification obligations and
any liability for Damages incurred by OSI, Outback or the Entities under SECTION
12.2.
12.3 COOPERATION. If any claim, demand, action, suit, proceeding or
investigation arising out of or pertaining to this Agreement or the transactions
contemplated hereby is begun or asserted, whether begun or asserted before or
after the Closing Date, the parties hereto will cooperate and use their best
efforts to defend against and respond thereto.
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12.4 NOTICE.
(a) An indemnified party shall give notice to the indemnifying
party or parties within ten (10) business days after actual receipt of
service or summons to appear in any action or any other notice of a
claim subject to indemnification under this Agreement. Failure to so
notify the indemnifying party or parties shall cause the indemnified
party to be liable for any expenses caused by failure to give timely
notice. The indemnifying party or parties may participate at their own
expense and with their counsel in the defense of such action. If the
indemnifying party or parties so elect within a reasonable time after
receipt of such notice, they may assume the defense of such action with
counsel chosen by the indemnifying party or parties and approved by the
indemnified party in such action, unless the indemnified party
reasonably objects to such assumption on the ground that its counsel
has advised it that there may be legal defenses available to it that
are different from or in addition to those available to the
indemnifying party or parties, in which case the indemnified party
shall have the right to employ counsel approved by the indemnifying
party or parties. If the indemnifying party or parties assume the
defense of such action, the indemnifying party or parties shall not be
liable for fees and expenses of counsel for the indemnified party
incurred thereafter in connection with such action. In no event shall
the indemnifying party or parties be liable for the fees and expenses
of more than one counsel for the indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances unless, in the reasonable opinion of such counsel, there
is, under applicable standards of professional conduct, a conflict on
any significant issue between the positions of any two or more
indemnified parties.
(b) An indemnifying party shall give notice to the indemnified
party or parties within ten (10) business days after actual receipt of
service or summons to appear in any action or any other notice of a
claim subject to indemnification under this Agreement. Failure to so
notify the indemnified party or parties shall cause the indemnifying
party to be liable for any expenses caused by failure to give timely
notice. The indemnified party or parties may participate at their own
expense and with their counsel in the defense of such action. If the
indemnified party or parties so elect within a reasonable time after
receipt of such notice, they may assume the defense of such action with
counsel chosen by the indemnified party or parties and approved by the
indemnifying party in such action, unless the indemnifying party
reasonably objects to such assumption on the ground that its counsel
has advised it that there may be legal defenses available to it that
are different from or in addition to those available to the indemnified
party or parties, in which case the indemnifying party shall have the
right to employ counsel approved by the indemnified party or parties.
If the indemnified party or parties assume the defense of such action,
the indemnified party or parties shall not be liable for fees and
expenses of counsel for the indemnifying party incurred thereafter in
connection with such action. In no event shall the indemnified party or
parties be liable for the fees and expenses of more than one counsel
for the indemnifying parties in connection with any one action or
separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances unless, in
the reasonable opinion of such counsel, there is, under applicable
standards of professional conduct, a conflict on any significant issue
between the positions of any two or more indemnifying parties.
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ARTICLE XIII
MISCELLANEOUS
13.1 TERMINATION. This Agreement and the transactions contemplated
hereby may be terminated at any time on or before the Closing Date
(notwithstanding approval by the Shareholders of any Corporation):
(a) by mutual consent of the Entities and OSI;
(b) by OSI if there has been a material misrepresentation or
breach of warranty in the representations and warranties of the
Entities or the Shareholders set forth herein or if there has been any
material failure on the part of the Entities or the Shareholders to
comply with their obligations hereunder;
(c) by the Entities if there has been a material
misrepresentation or breach of warranty in the representations and
warranties of OSI or Outback set forth herein or if there has been any
material failure on the part of OSI or Outback to comply with their
obligations hereunder;
(d) by either OSI, the Entities or the Shareholders, if the
transactions contemplated by this Agreement have not been consummated
by November 30, 1999, unless such failure of consummation is due to the
failure of the terminating party to perform or observe the covenants,
agreements and conditions hereof to be performed or observed by it at
or before the Closing Date;
(e) by either OSI, the Entities or the Shareholders if the
conditions precedent to its obligations to close this Agreement have
not been satisfied or waived by it at or before the Closing Date unless
such failure to satisfy conditions precedent is due to the failure of
the terminating party to use its best efforts to satisfy such
conditions; and
(f) by either the Entities, the Shareholders or OSI if the
transactions contemplated hereby violate any nonappealable final order,
decree or judgment of any court or governmental body or agency having
competent jurisdiction.
In the event this Agreement is terminated pursuant to this SECTION
13.1, this Agreement shall be of no further force and effect and no party hereto
shall have any further liability to any other party hereto, except pursuant to
the provisions of this Agreement which by their terms expressly survive any
termination hereof. Notwithstanding the foregoing, in the event Outback and OSI
terminate this Agreement pursuant to the provisions of SECTION 13.1(B) above,
Outback and OSI may, at their option, proceed at law or in equity to enforce its
rights under this Agreement, including the right of specific performance (which
right is hereby specifically granted by the Shareholders and the Entities
notwithstanding that neither Outback nor OSI shall not have granted the
Shareholders the reciprocal right to demand or enforce specific performance by
Outback or OSI), and to recover damages, losses and out-of-pocket expenses
incurred by Outback and OSI in connection herewith. All amounts recoverable by
Outback and OSI shall include their costs and attorneys' fees, including fees
and costs on appeal, incurred in defending against or determining responsibility
for a claim whether or not suit or action has been instituted.
13.2 EXPENSES. Each party hereto shall pay its own expenses incurred in
connection with this Agreement and the transactions contemplated hereby.
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13.3 ENTIRE AGREEMENT. This Agreement and the Exhibits and Disclosure
Schedules hereto constitute and contain the complete agreement among the parties
with respect to the transactions contemplated hereby and supersede all prior and
contemporaneous agreements and understandings among the parties with respect to
such transactions. The parties hereto have not made any representation or
warranty except as expressly set forth in this Agreement, the Merger Agreement
or in any certificate or schedule delivered pursuant hereto. The obligations of
any party under any agreement executed pursuant to this Agreement shall not be
affected by this SECTION 13.3.
13.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
(a) The representations, warranties, covenants and
indemnification obligations of OSI and Outback contained herein or in
any exhibit, certificate, document or instrument delivered pursuant to
this Agreement shall survive the Closing for a period of two years;
PROVIDED, HOWEVER, that the obligations of OSI and Outback under
ARTICLE VIII and ARTICLE XII hereof shall survive for the periods
provided therein and the obligations relating to any taxes or tax
liability (including with respect to the tax certificate delivered
pursuant to SECTION 10.5) shall survive until the statute of
limitations for such tax liability has expired.
(b) Except where otherwise specifically provided in this
Agreement, the representations, warranties and covenants of the
Entities and the Shareholders, and the covenants and indemnification
obligations of the Shareholders contained herein or in any exhibit,
schedule, certificate, document or instrument delivered pursuant to
this Agreement shall survive the Closing for a period of two years from
the Effective Date; PROVIDED, HOWEVER, the representations, covenants
and warranties contained in SECTION 3.11 and SECTION 4.7 and the
Shareholders' indemnification obligations with respect to any tax
liabilities shall survive the Closing until the statute of limitations
for such tax liability has expired.
13.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original and such counterparts together shall constitute only one original.
13.6 NOTICES. All notices, demands, requests or other communications
that may be or are required to be given, served or sent by any party to any
other party pursuant to this Agreement shall be in writing and shall be mailed
by registered or certified mail, return receipt requested, postage prepaid or
transmitted by hand delivery, recognized national overnight delivery service,
telegram or telex, addressed as follows:
IF TO SHAREHOLDER OR ENTITIES: ▇▇▇▇▇▇▇ Steakhouse, Inc.
▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
WITH A COPY TO: ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
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IF TO OSI OR OUTBACK: Outback Steakhouse, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President and General Counsel
Each party may designate by notice in writing a new address to which
any notice, demand, request or communication may thereafter be so given, served
or sent. Each notice, demand, request or communication that is mailed, delivered
or transmitted in the manner described above shall be deemed sufficiently given,
served, sent and received for all purposes at such time as it is delivered to
the addressee (with the return receipt, the delivery receipt, the affidavit of
messenger or (with respect to a telex) the answer back being deemed conclusive
evidence of such delivery) or at such time as delivery is refused by the
addressee upon presentation.
13.7 SUCCESSORS AND ASSIGNS. This Agreement and the rights, interests
and obligations hereunder shall be binding upon and shall inure to the benefit
of the parties hereto and, except as otherwise specifically provided for herein,
their respective successors and assigns.
13.8 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Florida without giving effect to
principles of comity or conflicts of law thereof.
13.9 WAIVER AND OTHER ACTION. This Agreement may be amended, modified
or supplemented only by a written instrument executed by the parties against
which enforcement of the amendment, modification or supplement is sought.
13.10 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remainder of this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision were never a part hereof; the
remaining provisions hereof shall remain in full force and effect and shall not
be affected by the illegal, invalid or unenforceable provision or by its
severance; and in lieu of such illegal, invalid or unenforceable provision,
there shall be added automatically as part of this Agreement, a provision as
similar in its terms to such illegal, invalid or unenforceable provision as may
be possible and be legal, valid and enforceable.
13.11 HEADINGS. All headings and captions in this Agreement are
intended solely for the convenience of the parties and none shall be deemed to
affect the meaning or construction of any provision hereof.
13.12 CONSTRUCTION. All references herein to the masculine, neuter or
singular shall be construed to include the masculine, feminine, neuter or
plural, where applicable.
13.13 JURISDICTION AND VENUE. The parties agree that any action brought
by either party against the other in any court, whether federal or state, shall
be brought within the State of Florida in the judicial circuit in which OSI has
its principal place of business. Each party hereby agrees to submit to the
personal jurisdiction of such courts and hereby waives all questions of personal
jurisdiction or venue for the purpose of carrying out this provision, including,
without limitation, the claim or defense therein that such courts constitute an
inconvenient forum.
13.14 ENFORCEMENT. In the event it is necessary for any party to retain
legal counsel or institute legal proceedings to enforce the terms of this
Agreement, including, without limitation, obligations upon expiration or
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termination, the prevailing party shall be entitled to receive from the
nonprevailing party, in addition to all other remedies, all costs of such
enforcement including, without limitation, attorney's fees and court costs and
including appellate proceedings.
13.15 FURTHER ASSURANCES. Each party covenants and agrees to execute
and deliver, prior to or after the Merger, such further documents as may
reasonably be requested by another party to fully effectuate the transactions
provided for herein.
13.16 EQUITABLE REMEDIES. The parties hereto acknowledge that a refusal
by a party to consummate the transactions contemplated hereby will cause
irreparable harm to the other parties, for which there may be no adequate remedy
at law. A party not in default at the time of such refusal shall be entitled, in
addition to other remedies at law or in equity, to specific performance of this
Agreement by the party that refused to consummate the transactions contemplated
hereby.
BALANCE OF THIS PAGE INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
"OSI"
Attest: OUTBACK STEAKHOUSE, INC.
a Delaware corporation
By:_______________________________ By: _______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary Title: Senior Vice President
"Outback"
Attest: OUTBACK STEAKHOUSE OF FLORIDA, INC., a
Florida corporation
By:_______________________________ By: _______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary Title: Senior Vice President
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Attest: ▇▇▇▇▇▇▇ STEAKHOUSE, INC., a
Massachusetts corporation
__________________________________ By: _______________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Clerk Title: President
By: _______________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Treasurer
Attest: KPH, INC., a Massachusetts corporation
__________________________________ By: _______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Clerk Title: President and Treasurer
Attest: ▇▇▇▇▇▇▇-KPH PARTNERSHIP, a
Massachusetts general partnership,
for itself and as general partner of
and on behalf of the Partnerships
indicated on Schedule I attached
hereto:
By: ITS GENERAL PARTNERS
Attest: ▇▇▇▇▇▇▇ STEAKHOUSE, INC., a
Massachusetts corporation
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__________________________________ By: _______________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Clerk Title: President
By: _______________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Treasurer
Attest: KPH, INC., a Massachusetts corporation
__________________________________ By: _______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Clerk Title: President and Treasurer
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EXHIBIT B
DISCLOSURE SCHEDULES
36
