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EXHIBIT 4.23
AGREEMENT AND PLAN OF REORGANIZATION
AMONG
OUTBACK STEAKHOUSE, INC.
OUTBACK STEAKHOUSE OF FLORIDA, INC.
AND
SONGLINES, INC.
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TABLE OF CONTENTS
PAGE
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[S] [C] [C]
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.........................3
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 SONGLINES AND XXXXXXXX.........3
2.1 Organization and Good Standing...................................3
2.2 Power and Authority..............................................4
2.3 Authority and Validity...........................................4
2.4 Binding Effect...................................................4
2.5 Compliance with Other Instruments................................4
2.6 Capitalization of Songlines......................................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.................................7
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 XXXXXXXX.......................8
3.1 Authority and Validity...........................................8
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............................................9
4.3 Power and Authority..............................................9
4.4 Authority and Validity...........................................9
4.5 Binding Effect...................................................9
(i)
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4.6 Compliance with Other Instruments................................9
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 SONGLINES, XXXXXXXX, OSI AND OUTBACK.........10
5.1 Notice of any Material Change...................................10
5.2 Cooperation.....................................................11
5.3 Post-Closing Adjustment.........................................11
5.4 Distribution and Allocations....................................11
5.5 Additional Agreements...........................................12
ARTICLE 6 - COVENANTS OF SONGLINES AND XXXXXXXX.............................12
6.1 Securities Law Compliance. .....................................12
6.2 Restriction on Transfer. .......................................13
6.3 Payment of Liabilities..........................................14
6.4 Pooling.........................................................14
ARTICLE 7 - COVENANTS OF OSI AND OUTBACK....................................14
7.1 Employment Agreements...........................................14
7.2 Assumed Liabilities.............................................15
ARTICLE 8 - JOINT CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS...............15
8.1 Consents to Transaction.........................................15
8.2 Absence of Litigation...........................................15
8.3 Dissenter's Rights..............................................15
ARTICLE 9 - CONDITIONS PRECEDENT TO OBLIGATIONS OF SONGLINES................15
9.1 Compliance......................................................15
9.2 Representations and Warranties..................................15
9.3 Material Adverse Changes........................................16
ARTICLE 10 - CONDITIONS PRECEDENT TO OBLIGATIONS OF OSI AND OUTBACK.........16
10.1 Compliance.....................................................16
10.2 Representations and Warranties.................................16
10.3 Current Financial Status.......................................16
10.4 Material Adverse Changes.......................................16
10.5 Pooling........................................................16
ARTICLE 11 - INDEMNIFICATION................................................17
11.1 Indemnification Based on Agreement.............................17
11.2 Limitation.....................................................17
11.3 Cooperation....................................................17
11.4 Notice.........................................................17
ARTICLE 12 - MISCELLANEOUS..................................................18
12.1 Termination....................................................18
12.2 Expenses.......................................................18
(ii)
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12.3 Entire Agreement................................................18
12.4 Survival of Representations and Warranties......................19
12.5 Counterparts....................................................19
12.6 Notices.........................................................19
12.7 Successors and Assigns..........................................19
12.8 Governing Law...................................................19
12.9 Waiver and Other Action.........................................20
12.10 Severability....................................................20
12.11 Headings........................................................20
12.12 Construction....................................................20
12.13 Jurisdiction and Venue..........................................20
12.14 Enforcement.....................................................20
12.15 Further Assurances..............................................20
12.16 Equitable Remedies..............................................20
EXHIBIT A
ARTICLES OF MERGER.................................................A-1
EXHIBIT B
DISCLOSURE SCHEDULES...............................................B-1
(iii)
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and
entered into as of the 1st day of October, 1997, by and among OUTBACK
STEAKHOUSE, INC., a Delaware corporation ("OSI"), OUTBACK STEAKHOUSE OF FLORIDA,
INC., a Florida corporation ("Outback"), SONGLINES, INC., a Texas corporation
("Songlines") and XXXXXXX XXXXXXXX, an individual residing in the State of Texas
("Xxxxxxxx").
W I T N E S S E T H:
WHEREAS, Outback is a wholly-owned subsidiary of OSI; and
WHEREAS, Xxxxxxxx is the sole owner of the issued and outstanding
common stock of Songlines, and Xxxxxxxx is the sole director, President and is
responsible for the day-to-day operations of Songlines; and
WHEREAS, Outback and Songlines have entered into that certain Florida
limited partnership known as Outback Steakhouse of Houston-II, Ltd.
("Partnership");
WHEREAS, the Partnership operates Outback Steakhouse restaurants in the
State of Texas; and
WHEREAS, the Board of Directors of Songlines has approved the merger of
Songlines 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, Songlines will be merged with and into
Outback and all of the outstanding shares of capital stock of Songlines 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:
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ARTICLE 1
PLAN OF ACQUISITION
1.1 The Merger. Subject to and upon the terms and conditions contained
herein, Songlines 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 Songlines prior to the
Merger. As a result of the Merger, each voting and nonvoting common share of
Songlines outstanding immediately before 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 22.084 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
Eleven Thousand Forty-Two (11,042).
(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 Songlines 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) Songlines shall have issued additional shares of its capital
stock, the number of shares of OSI Common Stock received in exchange for each
share of Songlines's capital stock shall be adjusted so that the aggregate
number of shares of OSI Common Stock received in exchange for all shares of
Songlines's capital stock (assuming no Dissenting Shares) remains at 11,042.
(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 Songlines (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 October 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 October
31, 1997, 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
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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, Songlines and Xxxxxxxx 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
(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 Texas 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 Texas; or (ii) October 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 Texas pursuant to the Florida Act and Texas 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 Songlines 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 Songlines shall be
entitled to receive upon surrender of stock certificates of Songlines
representing Songlines 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 Songlines 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 Songlines shall be closed and no transfer of capital stock of
Songlines, 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.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SONGLINES AND XXXXXXXX
Each of Songlines and Xxxxxxxx, jointly and severally, represent and
warrant to OSI and Outback as follows:
2.1 Organization and Good Standing. Songlines is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Texas.
2.2 Power and Authority. Songlines 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) Songlines 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 Songlines in connection with this
Agreement; and the execution, delivery and performance by Songlines of this
Agreement, the Merger Agreement and the other documents executed or to be
executed by Songlines in connection with this Agreement have been duly
authorized by all necessary corporate action. The execution, delivery and
performance by Songlines 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 Songlines as required
under the laws of the State of Texas and Songlines's corporate governance
documents.
(b) Xxxxxxxx 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 Xxxxxxxx in connection with this Agreement.
2.4 Binding Effect. This Agreement, the Merger Agreement and the other
documents executed or to be executed by Songlines and Xxxxxxxx in connection
with this Agreement have been or will have been duly executed and delivered by
Songlines and Xxxxxxxx, and are or will be, when executed and delivered, the
legal, valid and binding obligations of each of Songlines and Xxxxxxxx
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 Songlines nor Xxxxxxxx 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 Songlines or Xxxxxxxx pursuant to, its articles 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
Songlines or Xxxxxxxx is bound, to which any of them is a party, or to which any
assets of any of them are subject; provided, however, this SECTION 2.5 shall not
apply with respect to any of the
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foregoing if Songlines 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 Songlines.
(a) The authorized capital stock of Songlines consists of One Thousand
(1,000) common shares. There are Five Hundred (500) common shares issued and
outstanding, all of which are owned by Xxxxxxxx. There are no other shareholders
of Songlines and no other persons with rights or options to acquire capital
stock of Songlines. All of the issued and outstanding shares of capital stock of
Songlines have been duly authorized and validly issued and are fully paid and
nonassessable. There are no shares of capital stock of Songlines held in its
treasury.
(b) There are no voting trusts, shareholder agreements or other voting
arrangements among the shareholders of Songlines.
(c) There is no outstanding subscription, contract, convertible or
exchangeable security, option, warrant, call or other right obligating Songlines
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 Songlines.
2.7 Absence of Certain Changes. From December 31, 1996 to the Closing
Date, (except solely as a result of Songlines's status as a partner in the
Partnership) Songlines 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 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
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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;
(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. Songlines 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;
Songlines 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 Songlines 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 Songlines nor has Songlines received
notice of any such deficiency, delinquency or default. Songlines has no reason
to believe that Songlines has or may have any tax liabilities other than those
reflected on the unaudited balance sheet of Songlines as of August 30, 1997,
with any notes thereto, and the related unaudited statements of income for the
eight months ended August 30, 1997, together with supplemental information on
Songlines, each prepared and attested to by the chief financial officer of
Songlines (the "Balance Sheets") and those arising in the ordinary course of
business since the date thereof. With regard to the foregoing, Songlines has
relied on the accuracy and completeness of the Schedule K-1 provided by the
Partnership.
Xxxxxxxx shall have sole responsibility for filing all required tax
returns for Songlines for all periods ending on or prior to the Effective Date.
OSI shall assist Xxxxxxxx in preparing income tax returns and shall cooperate
with Xxxxxxxx to the extent necessary therefor, and Xxxxxxxx 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 Songlines (other than material liabilities arising solely by reason of
Songlines's status as a partner in the Partnership) of any nature, whether
absolute, accrued, contingent or otherwise, other than liabilities or
obligations indicated in Item 2.9 of the Disclosure Schedules.
2.10 Title to Properties. Songlines has good and marketable title to
the assets reflected in their books and records as being owned by them, (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 Songlines 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.
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Except for those assets acquired since the date of the Balance Sheets,
all material properties and assets owned by Songlines are properly reflected on
the applicable Balance Sheets and notes thereto.
2.11 Contracts. Excluding (i) contracts and commitments between Outback
or OSI and Songlines 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 Songlines in the ordinary course of the
Partnership's 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 Songlines is a party or by which Songlines 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 Songlines 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 Songlines or Xxxxxxxx, contemplated or, to the best knowledge of
Songlines or Xxxxxxxx, 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 Songlines or the Partnership.
2.13 No Violation of Any Instrument. Except as indicated in Item 2.13
of the Disclosure Schedule, Songlines 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 Songlines pursuant to,
the articles or certificates of incorporation, bylaws or other chartering or
governance document of Songlines 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 Songlines 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 Songlines is a party, by which Songlines is bound or to which any of the
assets of Songlines 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 Texas 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 Songlines and Xxxxxxxx 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 Songlines and Xxxxxxxx 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 Songlines
after the Effective Date in substantially the same manner as now operated.
2.15 Compliance With Laws. Xxxxxxxx has no actual knowledge that
Songlines or the Partnership are not in compliance with any such laws applicable
to their respective business, where failure
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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 Songlines or Xxxxxxxx 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 Songlines and Xxxxxxxx have disclosed to OSI and
Outback all facts known to them that are material to Songlines's and the
Partnership's respective businesses, operations, financial condition or
prospects.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF XXXXXXXX
In addition to the representations and warranties contained in ARTICLE
2, Xxxxxxxx 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 they are 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 Xxxxxxxx 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.
3.3 Ownership. Xxxxxxxx is the sole record and beneficial shareholder
of Songlines and no other person has any rights (in any form) to acquire any
capital stock of Songlines.
3.4 Voting. He acknowledges that in his individual capacity as
shareholder and director of Songlines, he has voted in favor of the execution
and delivery of this Agreement and the Merger Agreement.
3.5 Residency. Xxxxxxxx is, and has been at all times during the one
year ending on the date hereof, a resident of the State of Texas.
3.6 Compliance with Other Instruments. Neither the execution and
delivery by Xxxxxxxx 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 Xxxxxxxx
pursuant to any note, bond, indenture, mortgage, deed of trust, evidence of
indebtedness, loan or lease agreement, other agreement or instrument (including
with
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customers), judgment order, injunction or decree by which Xxxxxxxx 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
Songlines and Xxxxxxxx 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.
4.2 Foreign Qualification. Outback is duly qualified or licensed to do
business and in good standing as a foreign corporation in Texas 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
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Preferred Stock, $.01 par value, of which approximately 48,030,588 shares of
Common Stock and no shares of Preferred Stock were issued and outstanding as of
March 7, 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 Songlines'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.
4.8 SEC Reports. OSI has delivered to Songlines and Xxxxxxxx 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 Songlines and Xxxxxxxx. 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 Texas 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.
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ARTICLE 5
JOINT COVENANTS OF SONGLINES, XXXXXXXX, OSI AND OUTBACK
Songlines and Xxxxxxxx, 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
Songlines, Xxxxxxxx, 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 Songlines 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 Songlines as of the Effective Date;
(b) the amount of all liabilities of Songlines (other than liabilities
specified in Item 11.1 of the Songlines 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 Songlines for the
short tax year ending on the Effective Date;
Upon receipt of such report, Xxxxxxxx (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 Xxxxxxxx (and at the expense of
Xxxxxxxx) shall meet and attempt to
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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.
If, as finally determined, the sum of Subsection (a) above exceeds the
sum of Subsections (b) and (c), OSI shall pay such excess to Xxxxxxxx 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), Xxxxxxxx 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 Songlines's entire share of Partnership distributions of cash flow, and shall
be allocated Songlines's shares of profit and loss, from and after October 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 Songlines.
(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 Xxxxxxxx shall take all such
necessary action.
(c) Neither Outback, OSI, Songlines nor Xxxxxxxx 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 SONGLINES AND XXXXXXXX
Songlines and Xxxxxxxx covenant and agree with OSI as follows:
6.1 Securities Law Compliance. Xxxxxxxx represents and warrants, and
covenants to Outback and OSI that:
(a) Xxxxxxxx has received all schedules and exhibits and the documents
furnished to Songlines pursuant to SECTION 4.8;
(b) Xxxxxxxx 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 Xxxxxxxx.
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(c) OSI and Outback have furnished him with all information requested
and full access to materials concerning OSI and Outback which the Xxxxxxxx
and/or his advisors deemed necessary to properly evaluate the Merger. Such
information and access have been made available and utilized to the extent
Xxxxxxxx considers necessary and advisable in making an informed investment
decision, and Xxxxxxxx has consulted his own tax advisor and understands the
evaluation of such materials may require the assistance of experts and Xxxxxxxx
has utilized such experts to the extent deemed necessary.
(d) Xxxxxxxx understands that the OSI Common Stock to be received is an
investment of a speculative nature and Xxxxxxxx must bear the risks thereof for
an indefinite period of time. Xxxxxxxx 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) Xxxxxxxx and/or his representatives or advisors who have acted with
or on behalf of Xxxxxxxx and who have advised Xxxxxxxx in this matter have such
knowledge and experience in financial and business matters that Xxxxxxxx is
capable of evaluating the merits and risks of the Merger for OSI Common Stock.
(f) Xxxxxxxx is participating in the Merger solely for his account as a
private investment, and Xxxxxxxx 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.
Xxxxxxxx does not presently intend to enter into any such agreement or
undertaking and there are no present circumstances which will compel Xxxxxxxx to
sell any OSI Common Stock so received. Xxxxxxxx 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 Xxxxxxxx in OSI Common Stock pursuant to the
Merger is a suitable investment for Xxxxxxxx given the investment goals and
objectives of Xxxxxxxx.
(h) Xxxxxxxx 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
Xxxxxxxx of any OSI Common Stock received hereby which is effected other than in
strict compliance with the terms hereof and applicable law.
(i) Xxxxxxxx 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. Xxxxxxxx agrees to comply with the
restrictions on transfer contained in Section 6.2 hereof.
(j) Xxxxxxxx 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) Xxxxxxxx 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
Xxxxxxxx'x spouse in excess of
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$300,000 in each of those years and reasonably expects to reach the same income
level in the current tax year.
6.2 Restriction on Transfer.
(a) Xxxxxxxx covenants and agrees not to sell, convey, pledge, grant a
security interest in, assign or otherwise transfer or encumber any of the OSI
Common Stock to be issued in the Merger except in accordance with the following
provisions:
(i) Xxxxxxxx may transfer twenty percent (20%) of the OSI
Common Stock received in the Merger at any time after October 1, 1998;
(ii) Xxxxxxxx may transfer an additional twenty percent (20%)
of the OSI Common Stock received in the Merger at any time after October 1,
1999;
(iii) Xxxxxxxx may transfer an additional twenty percent (20%)
of the OSI Common Stock received in the Merger at any time after October 1,
2000;
(iv) Xxxxxxxx may transfer an additional twenty percent (20%)
of the OSI Common Stock received in the Merger at any time after October 1,
2001;
(v) Xxxxxxxx may transfer the remaining twenty percent (20%)
of the OSI Common Stock received in the Merger at any time after October 1,
2002.
(b) Notwithstanding the provisions of (a) above, Xxxxxxxx may make bona
fide gifts of OSI Common Stock to immediate family members or trusts of which
immediate family members are the exclusive beneficiaries provided, however, the
donees of such gifts shall take such OSI Common Stock subject to the
restrictions contained in (a) above. For purposes of determining Xxxxxxxx'x
compliance with (i) through (v) above, any transfers by donees shall be
aggregated with, and shall be considered as, transfers by Xxxxxxxx for purposes
of calculating compliance with (i) through (v) of subsection (a).
(c) OSI's transfer agent shall maintain stop transfer instructions on
the OSI Common Stock issued in the Merger and the certificates representing such
shares shall bear an appropriate legend evidencing the restrictions contained in
(a) above.
6.3 Payment of Liabilities. Songlines and Xxxxxxxx covenant and agree
that all debts and liabilities of Songlines 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 Songlines
specified in Item 11.1 of the Disclosure Schedules.
6.4 Pooling. Xxxxxxxx agrees that until such time as financial results
of OSI covering at least thirty (30) days of combined operations of OSI and
Songlines 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.
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ARTICLE 7
COVENANTS OF OSI AND OUTBACK
OSI and Outback, jointly and severally, covenant and agree with
Songlines and Xxxxxxxx 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 11.1 (subject to the amount limits specified in
Item 11.1 of the Disclosure Schedules) and to indemnify and hold harmless
Xxxxxxxx from any loss or liability therefor.
ARTICLE 8
JOINT CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS
Except as may be waived by OSI, the obligations of Songlines, Xxxxxxxx,
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. Songlines, 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 Songlines 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 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 Songlines 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
Songlines for which shareholders have exercised appraisal or dissenters' rights
under applicable law shall be a number which,
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in the sole and absolute discretion of OSI, does not jeopardize the financial
reporting and accounting treatment of the Merger specified in SECTION 1.12 or is
otherwise not contrary to the best interests of Outback or OSI.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS OF SONGLINES
The obligations of Songlines and Xxxxxxxx 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 Songlines and Xxxxxxxx
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:
10.1 Compliance. Songlines and Xxxxxxxx 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 Songlines and/or Xxxxxxxx in this Agreement, the Disclosure
Schedule, and in all certificates and other documents delivered by Songlines or
Xxxxxxxx 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.
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10.3 Current Financial Status. OSI shall have received the unaudited
financial statements of Songlines as of August 31, 1997, for the period 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
Songlines 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
Xxxxxxxx, 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, Xxxxxxxx shall indemnify and hold harmless
OSI, Outback and Songlines, and OSI, Outback and Songlines, jointly and
severally, shall indemnify and hold harmless Xxxxxxxx, 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, Xxxxxxxx shall indemnify OSI, Outback and
Songlines, 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
Songlines for any period prior to and including October 1, 1997 and (ii) any
debt of Songlines (other than the debts specified in Item 11.1 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
Songlines 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 11.1 of the Disclosure Schedule.
11.2 Limitation. Xxxxxxxx shall have no obligation under SECTION 11.1
to indemnify OSI, Outback or Songlines 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 Songlines 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.
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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 Songlines:
(a) by mutual consent of Songlines and OSI;
(b) by OSI if there has been a material misrepresentation or breach of
warranty in the representations and warranties of Songlines or Xxxxxxxx set
forth herein or if there has been any material failure on the part of Songlines
or Xxxxxxxx to comply with their obligations hereunder;
(c) by Songlines 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 its obligations hereunder;
(d) by either OSI, Songlines or Xxxxxxxx, if the transactions
contemplated by this Agreement have not been consummated by October 31, 1997,
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, or Songlines 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 Songlines 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.
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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 Xxxxxxxx
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 Songlines'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 Songlines or Xxxxxxxx: SONGLINES, INC.
000 Xxxxx Xxx Xxxxxxx Xxxxxxx Xxxx #000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
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
19
24
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 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.
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25
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 XXXXXX X. XXXXXX
Title: Secretary Title: President
"Outback"
Attest: OUTBACK STEAKHOUSE OF FLORIDA, INC.,
a Florida corporation
By: By:
----------------------------- -------------------------
XXXXXX X. XXXXX XXXX X. XXXXX
Title: Secretary Title: President
"Songlines"
Attest: SONGLINES, INC.
a Texas corporation
By: By:
----------------------------- -------------------------
Title: Secretary XXXXXXX XXXXXXXX
Title: President
Witness: "Xxxxxxxx"
----------------------------
XXXXXXX XXXXXXXX
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EXHIBIT A
ARTICLES OF MERGER
THIS AGREEMENT, PLAN AND ARTICLES OF MERGER ("Articles of Merger"),
dated as of October 1, 1997, is entered into by and among SONGLINES, INC., a
Texas corporation ("Songlines"); OUTBACK STEAKHOUSE, INC., a Delaware
corporation ("OSI"); and OUTBACK STEAKHOUSE OF FLORIDA, INC., a Florida
corporation ("Outback").
W I T N E S S E T H:
WHEREAS, Songlines is a corporation duly organized and validly existing
under the laws of the State of Texas, and the authorized and outstanding capital
stock of Songlines is as follows:
Authorized Shares Issued
Songlines Capital Stock and Outstanding
--------- ------------- ---------------
SONGLINES, INC. 1,000 Common Shares 500 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
48,030,588 shares of OSI Common Stock are issued and outstanding as of March 7,
1997; and
WHEREAS, Outback is a wholly owned subsidiary of OSI; and
WHEREAS, the respective Boards of Directors of each of Songlines,
Outback, and OSI deem it advisable, for the benefit of their respective
corporations and shareholders, that Songlines 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 Texas ("Texas
Law"), and have approved these Articles of Merger; and
WHEREAS, the Board of Directors of Songlines has directed that these
Articles of Merger be submitted to its voting shareholder for approval and
adoption and the voting shareholder of Songlines has approved and adopted these
Articles of Merger in accordance with Texas Law and the corporate governance
documents of Songlines by unanimous written consent dated September , 1997;
and
WHEREAS, OSI as the sole shareholder of Outback has approved and
adopted these Articles of Merger by written consent on September 30, 1997; and
WHEREAS, the Agreement and Plan of Reorganization (the "Reorganization
Agreement"), which Outback, OSI, and Songlines have entered, contemplates the
execution and delivery of these Articles of Merger.
A-1
27
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:
MERGER. The names of the corporations which propose to merge are
SONGLINES, INC., a Texas corporation ("Songlines"), and OUTBACK STEAKHOUSE OF
FLORIDA, INC. ("Outback"). In accordance with the provisions of the Florida Act
and Texas Law at the Effective Date (as hereinafter defined), Songlines 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 Songlines, respectively, by all action required by the laws under
which it was incorporated or organized and by its constituent documents.
1. 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 Songlines 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 Songlines shall thereafter cease except to the extent
continued by statute.
2. 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 Texas; or (ii) October 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 Texas pursuant to the Florida Act and Texas Law.
3. 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.
4. CONVERSION OF SHARES. The manner and basis of converting the capital
stock of Songlines into OSI Common Stock, subject to SECTION 5(C) below with
respect to fractional shares, shall be as follows:
(a) Each share of Songlines 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 on the
part of the holder thereof, be converted into and exchanged for 22.084
shares of OSI Common Stock.
(b) The Outback Capital Stock outstanding immediately prior to
the Effective Date shall be unaffected by the merger.
A-2
28
(c) The stock transfer books of Songlines 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 142,792 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 Songlines 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 Songlines 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.
5. 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 Songlines 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 Songlines 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 Songlines and any claim existing or action or proceeding
pending by or against Songlines 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 Songlines or Outback shall be impaired by the merger.
6. CONSENT OF SHAREHOLDERS. These Articles of Merger has been adopted
by the shareholders of Songlines in accordance with Texas Law and its corporate
governance documents by unanimous written consent effective as of , 1997.
These Articles of Merger has been adopted by the written consent of the sole
shareholder of Outback dated September 30, 1997 pursuant to the Florida Act.
X-0
00
0. DISSENTING SHAREHOLDERS. If any shareholder of Songlines 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
Texas Law, as applicable, he may be paid the fair value of his shares. If any
shareholder of Songlines lawfully elects, pursuant to the Florida Act or Texas
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 Songlines 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 Texas 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 Texas Law, as
applicable, such shareholder shall have no other rights pursuant to or arising
from these Articles of Merger.
8. 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.
9. 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 XXXXXX X. XXXXXX
Title: Secretary Title: President
X-0
00
XXXXX XX XXXXXXX )
) ss
COUNTY OF HILLSBOROUGH )
On this ______ day of October, 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 XXXX X. XXXXX
Title: Secretary Title: President
STATE OF FLORIDA )
) ss
COUNTY OF HILLSBOROUGH )
On this ______ day of October, 1997, before me, personally came XXXX X.
XXXXX and XXXXXX X. XXXXX, President 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.
---------------
A-5
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"Songlines"
Attest: SONGLINES, INC.
a Texas corporation
By: By:
---------------------- ---------------------------
Title: Secretary XXXXXXX XXXXXXXX
Title: President
STATE OF TEXAS )
) ss
COUNTY OF )
On this ______ day of October, 1997, before me, personally came XXXXXXX
XXXXXXXX and ___________________________, President and Secretary, respectively,
of SONGLINES, INC., a Texas 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.
----------------
A-6
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EXHIBIT B
DISCLOSURE SCHEDULES
Item 2.7 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 Songlines (other than material
liabilities arising solely by reason of Songlines'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 Songlines 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 Songlines or the Partnership to which any
of their business or assets is subject.
None.
B-1
33
Item 2.13 Violations and defaults of Songlines and the Partnership.
None.
Item 11.1 Current liabilities and those debts and liabilities of
Songlines agreed to be assumed by Outback:
None.
08/07/97
B-2
