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EXHIBIT 4.26
AGREEMENT AND PLAN OF REORGANIZATION
AMONG
OUTBACK STEAKHOUSE, INC.
OUTBACK STEAKHOUSE OF FLORIDA, INC.
AND
XXXXX RESTAURANT GROUP, LTD.
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 - PLAN OF ACQUISITION............................................1
1.1 The Merger........................................................1
1.2 Adjustments.......................................................2
1.3 Closing...........................................................2
1.4 Execution and Delivery of Closing Documents.......................2
1.5 Execution and Filing of Merger Documents..........................2
1.6 Effectiveness of Merger...........................................3
1.7 Further Assurances................................................3
1.8 Certificates......................................................3
1.9 Closing of Transfer Books.........................................3
1.10 Fractional Shares.................................................3
1.11 Accounting Treatment..............................................3
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES OF ARG AND XXXXX................3
2.1 Organization and Good Standing....................................3
2.2 Power and Authority...............................................3
2.3 Authority and Validity............................................4
2.4 Binding Effect....................................................4
2.5 Compliance with Other Instruments.................................4
2.6 Capitalization of ARG.............................................4
2.7 Absence of Certain Changes........................................5
2.8 Tax Liabilities...................................................6
2.9 No Undisclosed Liabilities........................................6
2.10 Title to Properties...............................................6
2.11 Contracts.........................................................6
2.12 Litigation and Government Claims..................................6
2.13 No Violation of Any Instrument....................................7
2.14 Necessary Approvals and Consents..................................7
2.15 Compliance With Laws..............................................7
2.16 Accuracy of Information Furnished.................................7
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF XXXXX........................7
3.1 Authority and Validity............................................7
3.2 Binding Effect....................................................8
3.3 Ownership.........................................................8
3.4 Voting............................................................8
3.5 Residency.........................................................8
3.6 Compliance with Other Instruments.................................8
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF OSI AND OUTBACK..............8
4.1 Organization and Good Standing....................................8
4.2 Foreign Qualification.............................................8
4.3 Power and Authority...............................................8
4.4 Authority and Validity............................................8
4.5 Binding Effect....................................................9
4.6 Compliance with Other Instruments.................................9
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TABLE OF CONTENTS (continued)
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4.7 Capitalization of OSI.............................................9
4.8 SEC Reports.......................................................9
4.9 Litigation and Government Claims..................................10
4.10 Necessary Approvals and Consents..................................10
4.11 Absence of Certain Changes or Events..............................10
ARTICLE 5 - JOINT COVENANTS OF ARG, XXXXX, OSI AND OUTBACK.................10
5.1 Notice of any Material Change.....................................10
5.2 Cooperation.......................................................10
5.3 Post-Closing Adjustment...........................................11
5.4 Distribution and Allocation.......................................11
5.5 Additional Agreements.............................................11
ARTICLE 6 - COVENANTS OF ARG AND XXXXX.....................................12
6.1 Securities Law Compliance; Restrictions on Shares.................12
6.2 Payment of Liabilities............................................13
6.3 Pooling...........................................................13
ARTICLE 7 - COVENANTS OF OSI AND OUTBACK...................................13
7.1 Employment Agreements.............................................13
7.2 Assumed Liabilities...............................................14
ARTICLE 8 - JOINT CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS..............14
8.1 Consents to Transaction...........................................14
8.2 Absence of Litigation.............................................14
8.3 Dissenter's Rights................................................14
ARTICLE 9 - CONDITIONS PRECEDENT TO OBLIGATIONS OF ARG.....................14
9.1 Compliance........................................................14
9.2 Representations and Warranties....................................15
9.3 Material Adverse Changes..........................................15
ARTICLE 10 - CONDITIONS PRECEDENT TO OBLIGATIONS OF OSI AND
OUTBACK...........................................................15
10.1 Compliance........................................................15
10.2 Representations and Warranties....................................15
10.3 Current Financial Status..........................................15
10.4 Material Adverse Changes..........................................15
10.5 Pooling...........................................................15
ARTICLE 11 - INDEMNIFICATION...............................................15
11.1 Indemnification Based on Agreement................................15
11.2 Limitation........................................................16
11.3 Cooperation.......................................................16
11.4 Notice............................................................16
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TABLE OF CONTENTS (continued)
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ARTICLE 12 - MISCELLANEOUS.................................................17
12.1 Termination.......................................................17
12.2 Expenses..........................................................17
12.3 Entire Agreement..................................................17
12.4 Survival of Representations and Warranties........................17
12.5 Counterparts......................................................18
12.6 Notices...........................................................18
12.7 Successors and Assigns............................................18
12.8 Governing Law.....................................................18
12.9 Waiver and Other Action...........................................18
12.10 Severability......................................................18
12.11 Headings..........................................................19
12.12 Construction......................................................19
12.13 Jurisdiction and Venue............................................19
12.14 Enforcement.......................................................19
12.15 Further Assurances................................................19
12.16 Equitable Remedies................................................19
EXHIBIT A
ARTICLES OF MERGER.........................................................A-1
EXHIBIT B
DISCLOSURE SCHEDULES.......................................................B-1
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and
entered effective as of the 1st day of December, 1997, by and among OUTBACK
STEAKHOUSE, INC., a Delaware corporation ("OSI"), OUTBACK STEAKHOUSE OF FLORIDA,
INC., a Florida corporation ("Outback"), XXXXX RESTAURANT GROUP, LTD., a
Delaware corporation ("ARG") and XXXX XXXXX, an individual residing in the State
of Pennsylvania ("Xxxxx").
W I T N E S S E T H:
WHEREAS, Outback is a wholly-owned subsidiary of OSI; and
WHEREAS, Xxxxx is the sole owner of the issued and outstanding common stock
of ARG, and Xxxxx is the sole director, President and is responsible for the
day-to-day operations of ARG; and
WHEREAS, Outback and ARG have entered into that certain Florida limited
partnership known as Outback/Mid Atlantic-I, Limited Partnership
("Partnership");
WHEREAS, the Partnership operates Outback Steakhouse restaurants in the
State of Delaware, New Jersey and Pennsylvania; and
WHEREAS, the Board of Directors of ARG has approved the merger of ARG into
Outback (the "Merger") upon the terms and conditions set forth in this
Agreement; and
WHEREAS, for federal income tax purposes it is intended that the Merger
shall qualify as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, pursuant to the Merger, ARG will be merged with and into Outback
and all of the outstanding shares of capital stock of ARG will be converted into
shares of Common Stock, par value $.01, of OSI (the "OSI Common Stock"); and
WHEREAS, the parties hereto 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:
ARTICLE 1
PLAN OF ACQUISITION
1.1 The Merger. Subject to and upon the terms and conditions contained
herein, ARG shall be merged with and into Outback, with Outback being the
surviving corporation, in accordance with the Articles of Merger substantially
in the form attached to this Agreement as EXHIBIT A (the "Merger Agreement"),
which will be executed and delivered by OSI, Outback, and ARG prior to the
Merger. As a result of the Merger, each voting and nonvoting common share of ARG
outstanding immediately before
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the Effective Date (as herein defined) shall, by virtue of the Merger and
without any further action being required by the holders thereof, be converted
into and exchanged for 1,750 shares of OSI Common Stock.
1.2 Adjustments.
(a) Except as otherwise provided in this SECTION 1.2, the total number
of shares of OSI Common Stock to be issued pursuant to the Merger shall be
One Hundred Seventy-Five Thousand 175,000.
(b) If, between the date of this Agreement and the Closing Date or the
Effective Date, as the case may be, (i) the outstanding shares of capital
stock of ARG 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 or (ii) ARG shall have issued additional
shares of its capital stock, the number of shares of OSI Common Stock
received in exchange for each share of ARG's capital stock shall be
adjusted so that the aggregate number of shares of OSI Common Stock
received in exchange for all shares of ARG's capital stock (assuming no
Dissenting Shares) remains at 175,000.
(c) If, between the date of this Agreement and the Closing Date or 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 ARG (as specified
in SECTION 1.1 hereof) shall be adjusted to accurately reflect such change.
1.3 Closing. The closing of the transactions contemplated by this
Agreement, including the Merger (the "Closing"), shall take place at 10:00 a.m.,
Tampa time, at the offices of Outback on December 1, 1997, or on such date and
at such other time and place as is agreed upon by the parties hereto. The day on
which the Closing occurs is herein referred to as the "Closing Date." 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 (which such party shall seek to cause to happen at the earliest
practicable date) or waived, but the Closing shall occur not later than February
27, 1998, unless further extended by written agreement of the parties to this
Agreement. The parties shall use their best efforts to effectuate a timely
closing as provided in this SECTION 1.3.
1.4 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
actions is taken or completed.
1.5 Execution and Filing of Merger Documents. At the time of completion of
the Closing, OSI, Outback, ARG and Xxxxx agree to take the following actions:
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(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
(b) to cause Articles of Merger to be filed with the Secretary of
State of the State of Florida and the Secretary of State of the State of
Delaware and a Certificate of Merger to be issued by each such officer.
1.6 Effectiveness of Merger. The Merger shall become effective under the
laws of Florida upon the later of (i) filing of these Articles of Merger with
the Secretary of State of the State of Florida and the Secretary of State of the
State of Delaware; or (ii) December 1, 1997 (the "Effective Date"). Such
Effective Date shall be indicated on Certificates of Merger issued by the
Secretary of State of the State of Florida and by the Secretary of State of the
State of Delaware pursuant to the provisions of Sections 607.1101-607.1107 of
the Florida Business Corporation Act (the "Florida Act") and the laws of the
State of Delaware ("Delaware Law").
1.7 Further Assurances. After the Closing, the parties hereto shall execute
and deliver such additional documents and take such additional actions as may
reasonably 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 business
and assets of ARG as existed immediately before the Effective Date.
1.8 Certificates. As soon as practicable after the Effective Date, OSI
shall make available and each holder of capital stock of ARG shall be entitled
to receive upon surrender of stock certificates of ARG representing ARG capital
stock for cancellation, certificates representing the number of shares of OSI
Common Stock into which such shares are converted in the Merger as provided in
SECTION 1.1 hereof. The OSI Common Stock into which such ARG capital stock is
converted shall be deemed issued at the Effective Date.
1.9 Closing of Transfer Books. At the Closing Date, the stock transfer
books of ARG shall be closed and no transfer of capital stock of ARG, shall
thereafter be made.
1.10 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.
1.11 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 2
REPRESENTATIONS AND WARRANTIES OF ARG AND XXXXX
Each of ARG and Xxxxx, jointly and severally, represent and warrant to OSI
and Outback as follows:
2.1 Organization and Good Standing. ARG is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
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2.2 Power and Authority. ARG has the requisite power and authority and all
material licenses and permits required by governmental authorities to own, lease
and operate its properties and assets and to carry on its businesses as
currently being conducted.
2.3 Authority and Validity.
(a) ARG has the corporate 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 ARG in connection with this
Agreement; and the execution, delivery and performance by ARG of this
Agreement, the Merger Agreement and the other documents executed or to be
executed by ARG in connection with this Agreement have been duly authorized
by all necessary corporate action. The execution, delivery and performance
by ARG 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 duly
authorized and approved by the board of directors and shareholders of ARG
as required under the laws of the State of Delaware and ARG's corporate
governance documents.
(b) Xxxxx has the power and authority to execute, deliver and perform
his obligations under this Agreement and the other documents executed or to
be executed by Xxxxx in connection with this Agreement.
2.4 Binding Effect. This Agreement, the Merger Agreement and the other
documents executed or to be executed by ARG and Xxxxx in connection with this
Agreement have been or will have been duly executed and delivered by ARG and
Xxxxx, and are or will be, when executed and delivered, the legal, valid and
binding obligations of each of ARG and Xxxxx 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.
2.5 Compliance with Other Instruments. Neither the execution and delivery
by ARG nor Xxxxx 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 ARG or
Xxxxx pursuant to, its certificate of incorporation, bylaws, partnership
agreement, operating agreement or other charter or governance document, or 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 ARG or Xxxxx is bound, to which
either of them is a party, or to which any assets of either of them are subject;
provided, however, this SECTION 2.5 shall not apply with respect to any of the
foregoing if ARG is bound thereby, a party thereto, or its assets subject,
solely by reason of its status as a partner in the Partnership.
2.6 Capitalization of ARG.
(a) The authorized capital stock of ARG consists of One Thousand
(1,000) common shares. There are one hundred (100) common shares issued and
outstanding, all of which are
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owned by Xxxxx. There are no other shareholders of ARG and no other persons
with rights or options to acquire capital stock of ARG. All of the issued
and outstanding shares of capital stock of ARG have been duly authorized
and validly issued and are fully paid and nonassessable. There are no
shares of capital stock of ARG held in its treasury.
(b) There are no voting trusts, shareholder agreements or other voting
arrangements to which the shareholder of ARG is a party.
(c) There is no outstanding subscription, contract, convertible or
exchangeable security, option, warrant, call or other right obligating ARG
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 ARG.
2.7 Absence of Certain Changes. From December 31, 1996 to the Closing Date,
(except solely as a result of ARG's status as a partner in the Partnership) ARG
has not:
(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;
(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 or pursuant to agreements in force at the date
of this Agreement and identified in Item 2.7(c) of the Disclosure
Schedules;
(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;
(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;
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(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.
2.8 Tax Liabilities. ARG has filed all federal, state, county, local and
foreign tax returns and reports required to be filed by them by the date hereof,
including those with respect to income, payroll, property, withholding, social
security, unemployment, franchise, excise and sales taxes; ARG has either paid
in full all taxes that have become due as reflected on any return or report and
any interest and penalties with respect thereto or have fully accrued on their
books or have established adequate reserves for all taxes payable but not yet
due; and have made cash deposits with appropriate governmental authorities
representing estimated payments of taxes, including income taxes and employee
withholding tax obligations. No extension or waiver of any statute of
limitations or time within which to file any return has been granted to ARG 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 ARG nor has ARG received notice of any such deficiency, delinquency or
default. ARG has no reason to believe that ARG has or may have any tax
liabilities other than those reflected on the unaudited balance sheet of ARG as
of December 1, 1997, with any notes thereto, and the related unaudited
statements of income for the twelve months ended December 1, 1997, together with
supplemental information on ARG, each prepared and attested to by the chief
financial officer of ARG (the "Balance Sheets") and those arising in the
ordinary course of business since the date thereof. With regard to the
foregoing, ARG has relied on the accuracy and completeness of the Schedule K-1
provided by the Partnership.
Xxxxx shall have sole responsibility for filing all required tax returns
for ARG. OSI shall assist Xxxxx in preparing income tax returns and shall
cooperate with Xxxxx to the extent necessary therefor, and Xxxxx shall provide
OSI with copies of all such returns at least fifteen (15) days prior to filing.
2.9 No Undisclosed Liabilities. There are no liabilities or obligations of
ARG (other than material liabilities arising solely by reason of ARG's status as
a partner in the Partnership) of any nature, whether absolute, accrued,
contingent or otherwise, other than liabilities or obligations indicated in
Items 2.9(a) and 2.9(b) of the Disclosure Schedules.
2.10 Title to Properties. ARG has good and marketable title to the assets
reflected in its books and records as being owned by it, (except as they have
since been affected by transactions in the ordinary course of business and
consistent with past practices) the real and personal properties reflected in
the Balance Sheets (except for assets subject to financing leases required to be
capitalized under generally accepted accounting principles, all of which are so
reflected in the Balance Sheet or notes thereto) and all assets purchased by ARG
since the date of the Balance Sheet, in each case free and clear of any lien,
claim or encumbrance, except as reflected in the Balance Sheet or notes thereto
and in Item 2.10 of the Disclosure Schedule 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 Balance Sheets, all
material properties and assets owned by ARG are properly reflected on the
applicable Balance Sheets and notes thereto.
2.11 Contracts. Excluding (i) contracts and commitments between Outback or
OSI and ARG or the Partnership, (ii) contracts and commitments entered into by
the Partnership to which Outback or OSI is a party, (iii) contracts and
commitments entered into by ARG in the ordinary course of the Partnership's
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business without violation of the provisions of the Partnership Agreement, and
(iv) contracts and commitments entered into with the written consent of OSI or
Outback, Item 2.11 of the Disclosure Schedule is a complete and accurate list of
all of the contracts and commitments (including summaries of oral contracts) to
which ARG is a party or by which ARG is bound:
2.12 Litigation and Government Claims. Except as indicated in Item 2.12 of
the Disclosure Schedule, there is no pending suit, claim, action or litigation
or administrative, arbitration or other proceeding or governmental investigation
or inquiry against ARG or the Partnership or to which any of their business or
assets is subject. Except as indicated in Item 2.12 of the Disclosure Schedule,
there are no such proceedings threatened or, to the best knowledge of ARG or
Xxxxx, contemplated or, to the best knowledge of ARG or Xxxxx, any basis for any
unasserted claims (whether or not the potential claimant may be aware of the
claim) of any nature that might be asserted against ARG or the Partnership.
2.13 No Violation of Any Instrument. Except as indicated in Item 2.13 of
the Disclosure Schedule, ARG is not in violation of or default under nor has any
event occurred that, with the lapse of time or the giving of notice or both,
would constitute a violation of or default under or permit the termination or
the acceleration of maturity of or result in the imposition of a lien, claim or
encumbrance upon any property or asset of ARG pursuant to, the articles or
certificates of incorporation, bylaws or other chartering or governance document
of ARG or (excluding any of the following entered into by the Partnership and to
which Outback or OSI is a signatory or to which Outback or OSI consented in
writing or which were entered into by ARG in the ordinary course of business
without violation of the provisions of the Partnership Agreement) any note,
bond, indenture, mortgage, deed of trust, evidence of indebtedness, loan or
lease agreement, other material agreement or instrument (including with
customers), judgment, order, injunction or decree to which ARG is a party, by
which ARG is bound or to which any of the assets of ARG are subject.
2.14 Necessary Approvals and Consents. Other than (a) in connection with or
in compliance with the laws of the States of Florida and Delaware 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,
and (d) under the provisions of the Securities Act of 1933, as amended, 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
each of ARG and Xxxxx 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 ARG and Xxxxx 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 ARG after the Effective Date in
substantially the same manner as now operated.
2.15 Compliance With Laws. Xxxxx has no actual knowledge that ARG or the
Partnership are not in compliance with any such laws applicable to their
respective business, where failure to so comply would have a material adverse
effect on their business, operations, properties, assets or conditions.
2.16 Accuracy of Information Furnished. No representation or warranty by
ARG or Xxxxx in this Agreement nor any information in the Financial Statements
or in the Disclosure Schedule 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. Each of ARG and Xxxxx have disclosed to OSI and Outback all facts
known to them that are material to ARG's and the Partnership's respective
businesses, operations, financial condition or prospects.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF XXXXX
In addition to the representations and warranties contained in ARTICLE 2,
Xxxxx represents and warrants to OSI and Outback as follows:
3.1 Authority and Validity. He has the capacity and authority to execute,
deliver and perform this Agreement and all other agreements and documents he is
executing or will execute in connection herewith or therewith.
3.2 Binding Effect. This Agreement and the other documents executed or to
be executed by Xxxxx 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, his 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.
3.3 Ownership. Xxxxx is the sole record and beneficial shareholder of ARG
and no other person has any rights (in any form) to acquire any capital stock of
ARG.
3.4 Voting. He acknowledges that in his individual capacity as shareholder
and director of ARG, he has voted in favor of the execution and delivery of this
Agreement and the Merger Agreement.
3.5 Residency. Xxxxx is, and has been at all times during the one year
period ending on the date hereof, a resident of the State of Pennsylvania.
3.6 Compliance with Other Instruments. Neither the execution and delivery
by Xxxxx of this Agreement and the Merger Agreement, nor the consummation by him
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 Xxxxx 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 Xxxxx is bound, to which he is a
party or to which he is subject.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF OSI AND OUTBACK
OSI and Outback jointly and severally represent and warrant to ARG and
Xxxxx as follows:
4.1 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.
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4.2 Foreign Qualification. Outback is duly qualified or licensed to do
business and in good standing as a foreign corporation in Delaware and in every
other jurisdiction where the failure to so qualify could have a material adverse
effect on its respective business, operations, assets or financial condition.
4.3 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.
4.4 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.
4.5 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.
4.6 Compliance with Other Instruments. Neither the execution and delivery
by OSI and/or Outback of this Agreement, the Merger Agreement, nor the
consummation by it 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.
4.7 Capitalization of OSI. 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 47,824,233 shares of Common Stock and no shares of Preferred Stock
were issued and outstanding as of November 11, 1997. All of the issued and
outstanding shares of OSI Common Stock have been duly authorized and validly
issued and are fully paid and nonassessable. The shares of OSI Common Stock to
be issued in exchange for ARG'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 shares of OSI Common Stock and (ii) employee stock ownership
plans, 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.
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4.8 SEC Reports. OSI has delivered to ARG and Xxxxx true and complete
copies of its (i) Annual Report on Form 10-K for the year ended December 31,
1996; (ii) Proxy Statement used in connection with its 1997 Annual Meeting of
Shareholders; (iii) 1997 Annual Report to Shareholders; (iv) all periodic
reports, if any, on Form 8-K filed with the Securities and Exchange Commission
since December 31, 1996 to the date hereof; and (v) all Forms 10-Q, if any,
filed with the Securities and Exchange Commission since December 31, 1996, 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 with the applicable
requirements of law. Copies of all other reports filed by OSI with the SEC from
the date hereof to and including the Effective Date have been or will be
delivered to ARG and Xxxxx. All financial statements and schedules included in
the documents referred to in this SECTION 4.8 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.
4.9 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 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.
4.10 Necessary Approvals and Consents. Other than (a) in connection with or
in compliance with the laws of the States of Florida and Delaware with respect
to effectuating the Merger, (b) consents required to be obtained from applicable
liquor control authorities and (c) 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.
4.11 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, 1996, 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 5
JOINT COVENANTS OF ARG, XXXXX, OSI AND OUTBACK
ARG and Xxxxx, jointly and severally, on the one hand, and OSI and Outback,
jointly and severally on the other hand, covenant with each other as follows:
5.1 Notice of any Material Change. Until the Effective Date, each of ARG,
Xxxxx, 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:
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(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 ARG 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.
5.2 Cooperation. Until the Effective Date, each of the parties hereto shall
and shall cause each of its 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 its best
efforts and diligently attempt to satisfy, to the extent within its
control, all conditions precedent to the obligations to close this
Agreement.
5.3 Post-Closing Adjustment. As soon as practicable after the Effective
Date, but in no event more than forty-five (45) days thereafter, OSI shall
determine and report in writing to all parties hereto:
(a) the amount of current assets of ARG as of the Effective Date;
(b) the amount of all liabilities of ARG (other than liabilities
specified in Item 6.2 of the ARG Disclosure Schedule to the extent assumed
by Outback) which were not paid in full prior to the Effective Date;
(c) the estimated amount of all federal and state taxes, including,
but not limited to, federal and state income taxes, payable by ARG for the
short tax year ending on the Effective Date;
Upon receipt of such report, Xxxxx (by notice to OSI as provided herein)
shall have a period of ten (10) days in which to object in writing to any
portion or item of such report. In the event no objection is timely made, OSI's
report shall be final and binding on all parties. If timely objection is made,
the chief financial officer of OSI and Xxxxx (and at the expense of Xxxxx) shall
meet and attempt to agree on the items to which objection was made. If such
persons cannot agree within thirty (30) days from the date of written objection,
the items on which agreement has not been reached shall be submitted to the
Tampa, Florida office of Price Waterhouse (or other agreed upon independent "Big
Six" accounting firm) for a resolution of such items and whose decision shall be
final and binding on all parties. The fees and expenses of Price Waterhouse (or
other accounting firm) shall be paid by the non-prevailing party.
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If, as finally determined, the sum of Subsection (a) above exceeds the sum
of Subsections (b) and (c), OSI shall pay such excess to Xxxxx within ten (10)
days of such final determination. If, as finally determined, the sum of
Subsections (b) and (c) exceeds the sum of Subsection (a), Xxxxx shall pay such
excess to OSI within ten (10) days of the final determination.
5.4 Distribution and Allocations. The parties acknowledge and agree that
notwithstanding the effective date of the Merger, Outback shall be entitled to
ARG's entire share of Partnership distributions of cash flow, and shall be
allocated ARG's shares of profit and loss, from and after December 1, 1997.
5.5 Additional Agreements.
(a) Subject to the terms and conditions herein provided, each of the
parties hereto agrees 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 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 of ARG.
(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 Xxxxx shall take
all such necessary action.
(c) Neither Outback, OSI, ARG nor Xxxxx shall take any action which
would jeopardize the characterization of the Merger as a reorganization
within the meaning of Section 368(a) of the Code or the treatment of the
Merger for financial reporting purposes as a pooling of interests.
ARTICLE 6
COVENANTS OF ARG AND XXXXX
ARG and Xxxxx covenant and agree with OSI as follows:
6.1 Securities Law Compliance. Xxxxx represents and warrants, and covenants
to Outback and OSI that:
(a) Xxxxx has received all schedules and exhibits and the documents
furnished to ARG pursuant to SECTION 4.8;
(b) Xxxxx has had 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 Xxxxx.
(c) OSI and Outback have furnished him with all information requested
and full access to materials concerning OSI and Outback which the Xxxxx
and/or his advisors deemed necessary to properly evaluate the Merger. Such
information and access have been made available and
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utilized to the extent Xxxxx considers necessary and advisable in making an
informed investment decision, and Xxxxx has consulted his own tax advisor
and understands the evaluation of such materials may require the assistance
of experts and Xxxxx has utilized such experts to the extent deemed
necessary.
(d) Xxxxx understands that the OSI Common Stock to be received is an
investment of a speculative nature and Xxxxx must bear the risks thereof
for an indefinite period of time. Xxxxx has adequate means for providing
for 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.
(e) Xxxxx and/or his representatives or advisors who have acted with
or on behalf of Xxxxx and who have advised Xxxxx in this matter have such
knowledge and experience in financial and business matters that Xxxxx is
capable of evaluating the merits and risks of the Merger for OSI Common
Stock.
(f) Xxxxx is participating in the Merger solely for his account as a
private investment, and Xxxxx 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. Xxxxx does not presently intend to enter into any such
agreement or undertaking and there are no present circumstances which will
compel Xxxxx to sell any OSI Common Stock so received. Xxxxx will not sell
or otherwise transfer the shares (except for de minimis gifts of 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.
(g) The investment by Xxxxx in OSI Common Stock pursuant to the Merger
is a suitable investment for Xxxxx given the investment goals and
objectives of Xxxxx.
(h) Xxxxx 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 Xxxxx of any OSI Common Stock received hereby which is
effected other than in strict compliance with the terms hereof and
applicable law.
(i) Xxxxx 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. Neither OSI nor Outback
will have any obligation to register any OSI Common Stock hereof.
(j) Xxxxx understands that OSI will place an appropriate legend on the
certificate representing OSI Common Stock to be received restricting the
transfer of the shares and stop-transfer instructions will be given to the
transfer agent for the OSI Common Stock with respect to such certificates.
(k) Xxxxx 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 Aaron'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.
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6.2 Payment of Liabilities. ARG and Xxxxx covenant and agree that all debts
and liabilities of ARG relating to periods prior to the Closing Date shall be
paid or satisfied in full prior to the Effective Date, except only current
liabilities and those debts and liabilities of ARG assumed by Outback as
specified in Item 6.2 of the Disclosure Schedules.
6.3 Pooling. Xxxxx agrees that until such time as financial results of OSI
covering at least thirty (30) days of combined operations of OSI and ARG
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.
ARTICLE 7
COVENANTS OF OSI AND OUTBACK
OSI and Outback, jointly and severally, covenant and agree with ARG and
Xxxxx as follows:
7.1 Employment Agreements. Solely with respect to the Merger, and any
consequential termination of any partnership by operation of law, Outback agrees
not to elect to terminate the Employment Agreements between the Partnership, as
employer, and the general managers of the Partnership's Outback Steakhouse(R)
restaurants, as employees. Outback shall succeed to all rights and obligations
of the Partnership 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 the Partnership by operation of law.
7.2 Assumed Liabilities. OSI and Outback agree to assume and pay the
liabilities specified in Item 6.2 (subject to the amount limits specified in
Item 6.2 of the Disclosure Schedules) and to indemnify and hold harmless Xxxxx
from any loss or liability therefor.
ARTICLE 8
JOINT CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS
Except as may be waived by OSI, the obligations of ARG, Xxxxx, 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:
8.1 Consents to Transaction. ARG, 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 ARG and/or the Partnership, as applicable, 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
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customarily operated by Outback) using such permits or licenses. Copies of all
consents and approvals received by any party pursuant to this SECTION 8.1 shall
be furnished to the other party.
8.2 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 ARG or the Partnership or OSI and its
subsidiaries, including the surviving corporation in the Merger, after the
Closing Date.
8.3 Dissenter's Rights. The number of shares of capital stock of ARG for
which shareholders have exercised appraisal or dissenters' rights under
applicable 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 1.11 or is otherwise not contrary to the best
interests of Outback or OSI.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS OF ARG
The obligations of ARG and Xxxxx 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 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.
9.2 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 ARG and Xxxxx 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.
9.3 Material Adverse Changes. Since the date hereof, 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.
ARTICLE 10
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:
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10.1 Compliance. ARG and Xxxxx 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.
10.2 Representations and Warranties. All of the representations and
warranties made by ARG and/or Xxxxx in this Agreement, the Disclosure Schedule,
and in all certificates and other documents delivered by ARG or Xxxxx 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 Current Financial Status. OSI shall have received the unaudited
financial statements of ARG as of December 31, 1996, for the month then ended.
10.4 Material Adverse Changes. Since December 31, 1996, there shall have
occurred no material adverse change in the business, properties, assets,
liabilities, results of operations or condition, financial or otherwise, of ARG
or the Partnership.
10.5 Pooling. OSI shall have received a letter from Deloitte & Touche, 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.
ARTICLE 11
INDEMNIFICATION
Xxxxx, on the one hand, and OSI and Outback, jointly and severally, on the
other hand, agree as follows:
11.1 Indemnification Based on Agreement. Subject to the limitations
contained in SECTION 11.2 hereof, Xxxxx shall indemnify and hold harmless OSI,
Outback and ARG, and OSI, Outback and ARG, jointly and severally, shall
indemnify and hold harmless Xxxxx, against any losses, claims, damages or
liabilities to which such indemnified party may become subject, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any facts or circumstances that would constitute a breach
by the other of any representation, warranty or covenant contained herein or in
any agreement 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.
In addition to the above, Xxxxx shall indemnify OSI, Outback and ARG, as
provided in the first paragraph of this SECTION 11.1, against any loss, claim,
damage or liability arising out of (i) any tax liability of ARG for any period
prior to and including December 31, 1997 and (ii) any debt of ARG (other than
the debts specified in Item 6.2 of the Disclosure Schedule to the extent assumed
by Outback), and (iii) all claims, obligations, causes of action and
liabilities, of whatever kind or character, of any of ARG which arise out of or
are based upon events first occurring on or before the Effective Date, except
only the liabilities assumed by Outback as specified in Item 6.2 of the
Disclosure Schedule.
11.2 Limitation. Xxxxx shall have no obligation under SECTION 11.1 to
indemnify OSI, Outback or ARG for any liability, loss, claim or damage arising
out of or based upon facts or actions first occurring after the Effective Date.
All obligations of indemnity (other than those relating to tax obligations of
ARG
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under SECTION 11.1 above which shall continue for the period specified in
SECTION 12.4(B) hereof) shall terminate two (2) years from the Closing Date;
provided, however, the obligations of indemnity shall not terminate with respect
to any matter for which indemnification is claimed within two (2) years from the
Closing Date.
11.3 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.
11.4 Notice. 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 begun in respect of which indemnity may be
sought hereunder. Failure to so notify the indemnifying party or parties shall
cause the indemnified party to be liable for any damage 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.
ARTICLE 12
MISCELLANEOUS
12.1 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 ARG):
(a) by mutual consent of ARG and OSI;
(b) by OSI if there has been a material misrepresentation or breach of
warranty in the representations and warranties of ARG or Xxxxx set forth
herein or if there has been any material failure on the part of ARG or
Xxxxx to comply with their obligations hereunder;
(c) by ARG 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, ARG or Xxxxx, if the transactions contemplated by
this Agreement have not been consummated by February 27, 1998, unless such
failure of consummation is due to
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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, or ARG 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; and
(f) by either ARG 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.
12.2 Expenses. Each party hereto shall pay its own expenses incurred in
connection with this Agreement and the transactions contemplated hereby.
12.3 Entire Agreement. This Agreement and the exhibits and Disclosure
Schedule hereto constitute and contain the complete agreement among the parties
with respect to the transactions contemplated hereby and supersede all prior
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 12.3.
12.4 Survival of Representations and Warranties.
(a) The representations, warranties 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 7 and ARTICLE 11 hereof shall survive for
the periods provided therein.
(b) Except where otherwise specifically provided in this Agreement,
the representations, warranties and indemnification obligations of Xxxxx
contained herein or in any exhibit, schedule, certificate, document or
instrument delivered pursuant to this Agreement shall survive the Closing
for a period of three years from the Effective Date; provided, however, the
representations and warranties contained in SECTION 2.7 shall survive the
Closing for a period ending four years after the filing of ARG's federal
income tax return for the period including the Effective Date.
12.5 Counterparts. This Agreement may be executed in any number of
identical counterparts, each of which when so executed and delivered shall be
deemed an original and such counterparts together shall constitute only one
original.
12.6 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 ARG or Xxxxx: XXXXX RESTAURANT GROUP, LTD.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
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If to OSI or Outback: OUTBACK STEAKHOUSE, INC.
000 Xxxxx Xxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, 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.
12.7 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.
12.8 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.
12.9 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.
12.10 Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, such provision shall be fully severable and
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.
12.11 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.
12.12 Construction. All references herein to the masculine, neuter or
singular shall be construed to include the masculine, feminine, neuter or
plural, where applicable.
12.13 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.
12.14 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
19
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expiration or termination, the prevailing party shall be entitled to receive
from the non-prevailing 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.
12.15 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.
12.16 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.
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: ___________________________________
XXXXXX X. XXXXX, Secretary XXXXXX X. XXXXXX, President
"Outback"
Attest: OUTBACK STEAKHOUSE OF FLORIDA, INC.,
a Florida corporation
By:_______________________________ By: ___________________________________
XXXXXX X. XXXXX, Secretary XXXXXX X. XXXXXX, Chief Operating
Officer
"ARG"
Attest: XXXXX RESTAURANT GROUP, LTD.
a Delaware corporation
By:_______________________________ By: ___________________________________
XXXX XXXXX, Secretary XXXX XXXXX, President
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Witness: "XXXXX"
___________________________________ _____________________________________
XXXX XXXXX
___________________________________
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EXHIBIT A
ARTICLES OF MERGER
THIS AGREEMENT, PLAN AND ARTICLES OF MERGER ("Articles of Merger"), dated
as of December 1, 1997, is entered into by and among XXXXX RESTAURANT GROUP,
LTD., a Delaware corporation ("ARG"); OUTBACK STEAKHOUSE, INC., a Delaware
corporation ("OSI"); and OUTBACK STEAKHOUSE OF FLORIDA, INC., a Florida
corporation ("Outback").
W I T N E S E T H:
WHEREAS, ARG is a corporation duly organized and validly existing under the
laws of the State of Delaware, and the authorized and outstanding capital stock
of ARG is as follows:
Authorized Shares Issued
Corporation Capital Stock And Outstanding
----------- ------------- ---------------
XXXXX RESTAURANT GROUP, LTD. 1,000 Common Shares 100 Common Shares
WHEREAS, OSI is a corporation duly organized and validly existing under the
laws of the State of Delaware; and
WHEREAS, OSI is authorized to issue 2,000,000 shares of Preferred Stock,
par value $.01, none of which are outstanding and 200,000,000 shares of Common
Stock, $.01 par value (the "OSI Common Stock"), of which approximately
47,824,233 shares of OSI Common Stock are issued and outstanding as of November
11, 1997; and
WHEREAS, Outback is a wholly owned subsidiary of OSI; and
WHEREAS, the respective Boards of Directors of each of ARG, Outback, and
OSI deem it advisable, for the benefit of their respective corporations and
shareholders, that ARG be merged into Outback, with Outback as the surviving
corporation (in its capacity as surviving corporation, Outback is hereinafter
sometimes referred to as the "Surviving Corporation"), pursuant to the
provisions of Sections 607.1101-607.1107 of the Florida Business Corporation Act
(the "Florida Act") and the laws of the State of Delaware ("Delaware Law"), and
have approved these Articles of Merger; and
WHEREAS, the Board of Directors of ARG has directed that these Articles of
Merger be submitted to its voting shareholder for approval and adoption and the
voting shareholder of ARG has approved and adopted these Articles of Merger in
accordance with Delaware Law and the corporate governance documents of ARG by
unanimous written consent dated December 1, 1997; and
WHEREAS, OSI as the sole shareholder of Outback has approved and adopted
these Articles of Merger by written consent on December 1, 1997; and
A-1
27
WHEREAS, the Agreement and Plan of Reorganization (the "Reorganization
Agreement"), which Outback, OSI, and ARG have entered, contemplates the
execution and delivery of these Articles of Merger.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein and for the purpose of prescribing the terms and conditions of
the merger and such other details and provisions as are deemed necessary or
desirable, the parties hereto agree as follows:
1. MERGER. The names of the corporations which propose to merge are XXXXX
RESTAURANT GROUP, LTD., a Delaware corporation ("ARG"), and OUTBACK STEAKHOUSE
OF FLORIDA, INC. ("Outback"). In accordance with the provisions of the Florida
Act and Delaware Law at the Effective Date (as hereinafter defined), ARG shall
be merged into Outback, and Outback shall be the Surviving Corporation and as
such shall continue to be governed by the laws of the State of Florida. The plan
of merger set forth in these Articles of Merger was duly authorized by each of
Outback and ARG, respectively, by all action required by the laws under which it
was incorporated or organized and by its constituent documents.
2. CONTINUATION OF CORPORATE EXISTENCE. The corporate existence and
identity of Outback, with all its purposes, powers, franchises, privileges,
rights and immunities, shall continue unaffected and unimpaired by the merger
and the corporate existence and identity of ARG with all its purposes, powers,
franchises, privileges, rights and immunities at the Effective Date shall be
merged with and into that of Outback, and Outback as the Surviving Corporation
shall be vested fully therewith, and the separate corporate existence and
identity of ARG shall thereafter cease except to the extent continued by
statute.
3. EFFECTIVE DATE. The merger shall become effective (hereinbefore and
hereinafter called the "Effective Date") upon the later of (i) filing of these
Articles of Merger with the Secretary of State of the State of Florida and the
Secretary of State of the State of Delaware; or (ii) December 1, 1997. Such
Effective Date shall be indicated on Certificates of Merger issued by the
Secretary of State of the State of Florida and by the Secretary of State of the
State of Delaware pursuant to the Florida Act and Delaware Law.
4. CORPORATE GOVERNMENT.
(a) The Certificate of Incorporation of Outback, as in effect on the
Effective Date, shall continue in full force and effect and shall be the
Certificate of Incorporation of the Surviving Corporation.
(b) The Bylaws of Outback, as in effect as of the Effective Date,
shall continue in full force and effect and shall be the Bylaws of the
Surviving Corporation.
(c) The members of the Board of Directors and the officers of the
Surviving Corporation shall be the persons holding such positions for
Outback as of the Effective Date.
5. CONVERSION OF SHARES. The manner and basis of converting the capital
stock of ARG into OSI Common Stock, subject to SECTION 5(C) below with respect
to fractional shares, shall be as follows:
(a) Each share of ARG common stock which shall be outstanding
immediately prior to the Effective Date shall at the Effective Date, by
virtue of the merger and without any action
A-2
28
on the part of the holder thereof, be converted into and exchanged for
1,750 shares of OSI Common Stock.
(b) The Outback Capital Stock outstanding immediately prior to the
Effective Date shall be unaffected by the merger.
(c) The stock transfer books of ARG shall be closed as of the close of
business on the Effective Date and no transfer of record of any of its
capital stock shall take place thereafter.
(d) 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 to each holder of shares of common stock of the merging
corporations whose fractional share interest is .5 or more of one whole
share; each fraction of less than .5 of one whole share shall be
disregarded.
(e) Notwithstanding the foregoing, the OSI shall not be required to
issue or distribute more than 175,000 shares of OSI Common Stock pursuant
to the merger, less any shares reserved for dissenters' rights, as
described in Article 1 of the Reorganization Agreement.
(f) All of the shares of OSI Common Stock, when delivered pursuant to
the provisions of these Articles of Merger, shall be validly issued, fully
paid and nonassessable.
(g) At the Effective Date, each holder of certificates representing
shares of the common stock of ARG shall thereupon cease to have any rights
with respect to such shares and shall be deemed to be a shareholder of OSI
to the extent of the number of shares of OSI Common Stock to which such
shareholder shall be entitled in accordance with these Articles of Merger;
and shall surrender certificates representing shares of the common stock of
ARG to the OSI, whereupon such holder shall receive a certificate or
certificates for the number of shares of OSI Common Stock to which such
holder is entitled hereunder.
6. RIGHTS AND LIABILITIES OF THE SURVIVING CORPORATION. The Surviving
Corporation shall have the following rights and obligations:
(a) The Surviving Corporation shall have all the rights, privileges,
immunities and powers and shall be subject to all the duties and
liabilities of a corporation organized under the laws of the State of
Florida.
(b) The Surviving Corporation shall possess all of the rights,
privileges, immunities and franchises, of either a public or private
nature, of Outback, and ARG and all property, real, personal and mixed and
all debts due on whatever account, including subscription to shares and all
other chooses in action and every other interest of or belonging or due to
ARG shall be taken and deemed to be transferred or invested in the
Surviving Corporation without further act or deed.
(c) At the Effective Date, the Surviving Corporation shall thenceforth
be responsible and liable for all liabilities and obligations of ARG and
any claim existing or action or proceeding pending by or against ARG or
Outback may be prosecuted as if the merger had not occurred or the
Surviving Corporation may be substituted in its place. Neither the rights
of creditors nor any liens upon the property of ARG or Outback shall be
impaired by the merger.
A-3
29
7. CONSENT OF SHAREHOLDERS. These Articles of Merger has been adopted by
the shareholders of ARG in accordance with Delaware Law and its corporate
governance documents by unanimous written consent effective as of December 1,
1997. These Articles of Merger has been adopted by the written consent of the
sole shareholder of Outback dated as of December 1, 1997, to the Florida Act.
8. DISSENTING SHAREHOLDERS. If any shareholder of ARG files a written
objection to these Articles of Merger before a vote of the shareholders is taken
hereon and complies with the further provisions of the Florida Act or Delaware
Law, as applicable, he may be paid the fair value of his shares. If any
shareholder of ARG lawfully elects, pursuant to the Florida Act or Delaware Law,
as applicable, to exercise or pursue his right to dissent from any of the
corporate actions referred to in these Articles of Merger with respect to the
shares of common stock of ARG owned by such shareholder (the "Dissenting
Shares"), such shareholder shall be entitled to exercise only those rights
available to him as set forth in the Florida Act or Delaware Law, as applicable,
and, in that event, only in the manner set forth therein. During the period in
which any such shareholder shall be exercising or pursuing any of such
shareholder's rights of dissent as specified in the Florida Act or Delaware Law,
as applicable, such shareholder shall have no other rights pursuant to or
arising from these Articles of Merger.
9. REORGANIZATION AGREEMENT. These Articles of Merger is intended to
supplement the Reorganization Agreement and is not intended to conflict with or
supersede that agreement and, in the event of any conflict, the provisions of
the Reorganization Agreement shall control.
10. COPIES. A copy of these Articles of Merger shall be on file at the
principal place of business of the Surviving Corporation located at 000 Xxxxx
Xxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000. A copy of these Articles of Merger
will be furnished by the Surviving Corporation, on request and without cost, to
any shareholder of any corporation that is a party hereto.
IN WITNESS WHEREOF, the undersigned have executed this Agreement, Plan and
Articles of Merger as of the day and year first above written.
"OSI"
Attest: OUTBACK STEAKHOUSE, INC.
a Delaware corporation
By:________________________________ By: _______________________________
XXXXXX X. XXXXX, Secretary XXXXXX X. XXXXXX, President
X-0
00
XXXXX XX XXXXXXX )
) ss
COUNTY OF HILLSBOROUGH )
On this ______ day of ____________, 1997, before me, personally came XXXXXX
X. XXXXXX and XXXXXX X. XXXXX, President and Secretary, respectively, of OUTBACK
STEAKHOUSE, INC., a Delaware corporation, who are personally known to me, and
each being first duly sworn, did depose and say that they executed the foregoing
on behalf of said corporation by order of the Board of Directors of said
corporation.
(NOTARY SEAL) ______________________________________
(Notary Signature)
NOTARY PUBLIC
Commission No. _______________________
"Outback"
Attest: OUTBACK STEAKHOUSE OF FLORIDA, INC.,
a Florida corporation
By:______________________________ By: __________________________________
XXXXXX X. XXXXX, Secretary XXXXXX X. XXXXXX, Chief Operating
Officer
STATE OF FLORIDA )
) ss
COUNTY OF HILLSBOROUGH )
On this ______ day of _______________, 1997, before me, personally came
XXXXXX X. XXXXXX and XXXXXX X. XXXXX, Chief Operating Officer and Secretary,
respectively, of OUTBACK STEAKHOUSE OF FLORIDA, INC., a Florida corporation, who
are personally known to me, and each being first duly sworn, did depose and say
that they executed the foregoing on behalf of said corporation by order of the
Board of Directors of said corporation.
(NOTARY SEAL) ______________________________________
(Notary Signature)
NOTARY PUBLIC
Commission No. _______________________
X-0
00
"XXX"
Xxxxxx: XXXXX RESTAURANT GROUP, LTD.
a Delaware corporation
By:____________________________ By: __________________________________
XXXX XXXXX, Secretary XXXX XXXXX, President
STATE OF PENNSYLVANIA )
) ss
COUNTY OF ________________ )
On this ______ day of _________________, 1997, before me, personally came
XXXX XXXXX, President and Secretary, respectively, of XXXXX RESTAURANT GROUP,
LTD., a Delaware corporation, who are personally known to me, and each being
first duly sworn, did depose and say that they executed the foregoing on behalf
of said corporation by order of the Board of Directors of said corporation.
(NOTARY SEAL) ____________________________________
(Notary Signature)
NOTARY PUBLIC
Commission No. ______________________
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EXHIBIT B
DISCLOSURE SCHEDULES
Item 2.7(c) Any asset acquired or disposed of, or indebtedness
incurred, assumed, guaranteed, endorsed, paid or discharged;
any material amount of assets subjected or permitted to be
subjected to any liability or obligation or to any lien, claim
or encumbrance of any kind, except in the ordinary course of
business or pursuant to agreements in force at the date of
this Agreement and identified below:
None.
Item 2.9(a) Material liabilities or obligations, contingent or otherwise
of the Partnership of any nature:
None.
Item 2.9(b) Liabilities or obligations of ARG (other than material
liabilities arising solely by reason of ARG's status as a
partner in the Partnership) of any nature, whether absolute,
accrued, contingent or otherwise:
None.
Item 2.10 Liens and encumbrances on real and personal property
purchased by ARG or the Partnership since the date of the
Balance Sheet, except for liens for taxes, assessments or
other governmental charges not yet due and payable.
None.
Item 2.11 Contracts and commitments not in the ordinary course of the
Partnership's business.
None.
Item 2.12 Pending suits, claims, actions or litigation or
administrative, arbitration or other proceedings or
governmental investigations or inquiries against ARG or the
Partnership to which any of their business or assets is
subject.
None.
Item 2.13 Violations and defaults of ARG and the Partnership.
None.
Item 6.2 Current liabilities and those debts and liabilities of ARG
agreed to be assumed by Outback:
None.
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