TOKYO 25257 v7 (2K)
STOCKHOLDERS AGREEMENT
AMONG
OUTBACK STEAKHOUSE INTERNATIONAL L.P.
NEWPORT PACIFIC RESTAURANTS, INC.
XXXXXXX XXXXX
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XXXXXXX XXXXXX
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XXX XXXX
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XXXXX XXX XXXXXXX
AND
OUTBACK STEAKHOUSE JAPAN CO., LTD.
____________ ___, 2003
TABLE OF CONTENTS
1. CURRENT ISSUANCE 1
2. TRANSFER OF EQUITY SECURITIES 1
2.1 TRANSFER OF COMMON STOCK BY INDIVIDUAL
STOCKHOLDER 1
2.2 TRANSFER OF COMMON STOCK BY EXECUTIVE
STOCKHOLDER 4
2.3 PURCHASE ON DEATH OF INDIVIDUAL STOCKHOLDER
OR EXECUTIVE SHAREHOLDER 6
2.4 TRANSFER OF EQUITY SECURITIES BY NPRI 6
3. TRANSFER OF PREFERRED STOCK 8
3.1 RESTRICTION ON TRANSFER OF PREFERRED STOCK
BY THE MANAGEMENT STOCKHOLDER 8
4. GENERAL PROVISIONS RELATED TO TRANSFERS 10
4.1. TRANSFER 10
4.2. TRANSFER IN VIOLATION OF SECTIONS 2 AND 3 10
4.3. TERMINATION OF RIGHTS AND OBLIGATIONS 10
5. COVENANTS OF STOCKHOLDERS 10
5.1 CORPORATE EXISTENCE 10
5.2 PUBLICITY 11
5.3 CONFIDENTIALITY 11
5.4 AGREEMENT NOT TO COMPETE 11
5.5 VOTING AGREEMENT 11
6. REPRESENTATIONS AND WARRANTIES 12
6.1 REPRESENTATIONS AND WARRANTIES OF THE
MANAGEMENT STOCKHOLDERS 12
6.2 REPRESENTATIONS AND WARRANTIES OF INDIVIDUAL
STOCKHOLDERS AND EXECUTIVE STOCKHOLDER 13
6.3 REPRESENTATIONS AND WARRANTIES OF THE COMPAN
Y 13
7. EFFECTIVENESS OF AGREEMENT 14
8. DEFINITIONS 14
9. MISCELLANEOUS 16
9.1 ADDITIONAL ACTIONS AND DOCUMENTS 16
9.2 EXPENSES 16
9.3 ASSIGNMENT 16
9.4 ENTIRE AGREEMENT; AMENDMENT 16
9.5 WAIVER 16
9.6 LIMITATION ON BENEFIT 17
9.7 BINDING EFFECT 17
9.8 GOVERNING LAW 17
9.9 NOTICES 17
9.10 HEADINGS 18
9.11 EXECUTION IN COUNTERPARTS 18
Appendix 1 Management Stockholders
Appendix 2 Individual Stockholders
Appendix 3 Executive Stockholder
Appendix 4 Calculation of Option Price in respect of
Sections 2.1.2, 2.2.2 and 2.4.2
STOCKHOLDERS AGREEMENT
OUTBACK STEAKHOUSE JAPAN CO., LTD.
THIS STOCKHOLDERS AGREEMENT (this "Agreement") is entered
into as of __________ ___, 2003 by and among Outback
Steakhouse Japan Co., Ltd., a Japan Kabushiki Kaisha (the
"Company"), the stockholders of the Company identified on
Appendix 1 as "Management Stockholders" (collectively, the
"Management Stockholders"), the stockholders of the Company
identified on Appendix 2 as the "Individual Stockholders"
(collectively the "Individual Stockholders") and the
stockholders of the Company identified on Appendix 3 as the
"Executive Stockholder" (the "Executive Stockholder"). The
Management Stockholders, the Individual Stockholders and the
Executive Stockholder are referred to herein collectively as
the "Stockholders" and individually as a "Stockholder."
WHEREAS, the parties hereto intend that 10,000 Common Stock
be issued to Executive Stockholder on or shortly after the
date hereof ("Current Issuance") and consequently the entire
capital stock of the Company will consist of 3,210,000 shares
of Preferred Stock and 100,000 shares of Common Stock;
WHEREAS each of the Stockholders holds after the Current
Issuance, the Equity Securities (as defined in Article 8) in
the Company set forth opposite that Stockholder's name on
Appendix 1, 2 and 3 respectively; and
WHEREAS the Company and the Stockholders wish to enter into
this Agreement to provide, among other things, for certain
mutual restrictions relating to the transfer of Equity
Securities and other rights and responsibilities as set forth
in this Agreement.
Capitalized terms used in this Agreement have the meaning
ascribed to them in Article 8.
NOW THEREFORE, in consideration of the mutual covenants and
obligations of the parties set forth herein, and for other
good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Company and the
Stockholders agree as follows:
1. CURRENT ISSUANCE
Each Stockholder acknowledges that the Stockholder has
received due notice of the shareholders' meeting and/or
consented to hold such meeting without the procedures
otherwise required by law and the Articles of Incorporation of
the Company to be held on or before the date hereof, and shall
vote to approve the issuance of 10,000 shares to Executive
Stockholder in consideration of his contribution of 6,000,000
yen into the Company.
2. TRANSFER OF EQUITY SECURITIES
2.1 Transfer of Common Stock by Individual Stockholder
Each Individual Stockholder shall not make any Transfer
of any Common Stock now or hereafter held or acquired by
such Stockholder except pursuant to the provisions of this
Section 2.1.
2.1.1 Restrictions on Transfers while the Individual
Stockholder is Employed by OSI LP
During such time as the Individual Stockholder is
employed by OSI LP and until the lapse of the purchase
options contained in Section 2.1.2 and 2.1.3 of this
Agreement, if at any time an Individual Stockholder
desires to transfer his/her Common Stock, the Individual
Stockholder shall, prior to any desired Transfer, give OSI
LP written notice of such desire ("Transfer Notice A")
which notice shall specify such Individual Stockholder's
Common Stock to be transferred, the identity of the
proposed transferee, the purchase price for the Common
Stock to be transferred and the terms for payment of said
purchase price. OSI LP shall respond to Transfer Notice A
within thirty (30) days of receipt of such notice whether
it consents to the Transfer described in such Transfer
Notice A. In the event OSI LP does not consent to the
Transfer by the Individual Stockholder (which consent OSI
LP may or may not give in its sole discretion), the
Individual Stockholder shall not transfer or request the
Company to redeem such Common Stock. Failure of OSI LP to
respond to Transfer Notice A shall be deemed a refusal of
consent to the Transfer.
2.1.2 Purchase Option in Favor of OSI LP
In the event the Individual Stockholder's employment
with OSI LP is terminated for whatever reason, including
death or Disability, OSI LP shall have the exclusive right
and option (but not the obligation) to purchase such
Individual Stockholder's Common Stock upon the following
terms and conditions ("Purchase Option A"):
(a) Purchase Option A may be exercised by OSI LP to acquire
such Common Stock at any time during a sixty (60) day period
commencing upon the termination of the Individual
Stockholder's employment with OSI LP.
(b) Purchase Option A shall be exercised by giving written
notice thereof ("Option Notice") to the Individual Stockholder
in accordance with the notice provisions hereof. The date of
mailing of the Option Notice shall be the date of exercise.
The Option Notice shall specify a date and place for closing
of the purchase, which notice shall be not more than thirty
(30) days after the date of exercise. OSI LP shall pay for
the Common Stock to be purchased pursuant to Purchase Option A
in immediately available funds. OSI LP is entitled to receive
customary representations and warranties from the Individual
Stockholder regarding sale of shares (including
representations and warranties regarding good title to such
shares, free and clear of any liens or encumbrances).
(c) The purchase price to be paid by OSI LP to such
Individual Stockholder shall be:
(i) if, at the time of termination of employment, any shares
of Preferred Stock of the Company are outstanding, Option
Price A-1 calculated pursuant to the method set forth in
Appendix 4; and
(ii) if, at the time of termination of employment, no shares
of Preferred Stock of the Company are outstanding, Option
Price A-2 calculated pursuant to the method set forth in
Appendix 4.
2.1.3 Right of First Refusal held by OSI LP
(a) In the event Purchase Option A is not exercised within
the sixty (60) days period commencing upon the termination of
the Individual Stockholder's employment with OSI LP, and such
Individual Stockholder (or his/her permitted successors in the
case of death) thereafter desires to transfer his/her Common
Stock, the Individual Stockholder shall, prior to any desired
Transfer, give OSI LP and the Company written notice of such
desire ("Transfer Notice A"), which transfer notice shall
specify such Individual Stockholder's Common Stock to be
transferred, the identity of the proposed transferee, the
purchase price (the "Purchase Price A") for the Common Stock
to be transferred and the terms for payment of said Purchase
Price A. Upon receipt of a proper Transfer Notice A, OSI LP
shall have the right to acquire such Individual Stockholder's
Common Stock or a portion of his/her Common Stock as is
specified in the Transfer Notice A. In the event the terms of
payment are such that OSI LP cannot reasonably duplicate, OSI
LP shall have the right to substitute the reasonable cash
equivalent thereof.
(b) (i)OSI LP may exercise the right of first refusal
contained herein by mailing written notice thereof
("Election Notice A") to the Individual Stockholder
within thirty (30) days of the date of receipt of
the Transfer Notice A. In the event OSI LP fails to
mail the Election Notice A to the transferring
Individual Stockholder within said thirty (30) day
period, OSI LP's rights under this Section 2.1.3
shall lapse.
(ii) The closing for any purchase under this Section 2.1.3
shall be consummated and closed on a date and at a place
designated by OSI LP in a notice to the Individual
Stockholder, provided such consummation and closing date shall
occur within sixty (60) days from the date of mailing of the
Election Notice. At such closing, the Individual Stockholder
shall execute and deliver all documents and instruments as are
necessary and appropriate, in the opinion of counsel for the
Company, to effectuate the Transfer of the Individual
Stockholder's Common Stock to OSI LP in accordance with the
terms of the Transfer Notice A and OSI LP shall deliver the
Purchase Price to the Individual Stockholder in immediately
available funds. OSI LP is entitled to receive customary
representations and warranties from the Individual Stockholder
regarding his sale of shares (including representations and
warranties regarding good title to such shares, free and clear
of any liens or encumbrances). In the event the transferring
Individual Stockholder has any outstanding debts to the
Company, or unpaid capital contribution obligations to the
Company, such debts or unpaid capital contributions, including
any accrued interest, shall be repaid in full prior to such
closing.
(c) The right of first refusal provided herein shall
continue until all of the Individual Stockholder's Common
Stock are transferred by the Individual Stockholder in
compliance with the terms hereof.
2.2 Transfer of Common Stock by Executive Stockholder
The Executive Stockholder shall not make any Transfers of
any Common Stock now or hereafter held or acquired by such
Stockholder except pursuant to the provisions of this
Section 2.2.
2.2.1 Restrictions on Transfers while the Executive
Stockholder is Employed by OSI LP
During such time as the Executive Stockholder is
employed by OSI LP and until the lapse of the purchase
options contained in Sections 2.2.2 and 2.2.3 of this
Agreement, if at any time the Executive Stockholder
desires to transfer his Common Stock, the Executive
Stockholder shall, prior to any desired Transfer, give OSI
LP written notice of such desire ("Transfer Notice B")
which notice shall specify the Executive Stockholder's
Common Stock to be transferred, the indemnity of the
proposed transfer, the purchase price for the Common Stock
to be transferred and the terms of payment of said
purchase price. OSI LP shall respond to Transfer Notice B
within thirty (30) days of receipt of such notice whether
it consents to the Transfer described in such Transfer
Notice B. In the event OSI LP does not consent to the
Transfer by the Executive Stockholder (which consent OSI
LP may or may not give in its sole discretion), the
Executive Stockholder shall not transfer or request the
Company to redeem such Common Stock. Failure of OSI LP to
respond to Transfer Notice B shall be deemed a refusal of
consent to the Transfer.
2.2.2 Purchase Option in favor of OSI LP
In the event the Executive Stockholder's employment
with OSI LP is terminated: (A) prior to December 31, 2006
by OSI LP for Cause, or by resignation by Executive
Stockholder; (B) prior to December 31, 2006 due to any
reason other than as set forth in (A), including Executive
Stockholder's death or Disability; or (C) upon or after
December 31, 2006 for any reason whatsoever, whether
voluntary or involuntary; then, in any such event OSI LP
shall have the exclusive right and option (but not the
obligation) to purchase the Common Stock held by the
Executive Stockholder (the "Executive Stock") upon the
following terms and conditions ("Purchase Option B"):
(a) Purchase Option B may be exercised by OSI LP at any
time during a sixty (60) day period commencing upon
the termination of Executive Stockholder's
employment with OSI LP as described in (A), (B) or
(C) of this paragraph 2.2.2. Purchase Option B
arising under circumstances described in (A) above
shall be referred to herein as Purchase Option B-1,
Purchase Option arising under circumstances
described in (B) above as Purchase Option B-2 and
Purchase Option arising under circumstances
described in (C) above as Purchase Option B-3.
(b) Purchase Option B shall be exercised by giving
written notice thereof ("Option Notice B") to
Executive Stockholder in accordance with the notice
provisions hereof. The date of mailing of Option
Notice B shall be the date of exercise. The Option
Notice B shall specify a date and a place for
closing of the purchase, which shall not be more
than thirty (30) days after the date of exercise.
OSI LP shall pay for the Executive Stock to be
purchased pursuant to Purchase Option B in
immediately available funds. OSI LP is entitled to
receive customary representations and warranties
regarding sale of shares (including representations
and warranties regarding good title to such shares,
free and clear of any liens or encumbrances).
(c) The purchase price to be paid by OSI LP to the
Executive Stockholder shall be:
(i) In the case of Purchase Option B-1, Option Price B-1
calculated pursuant to the method set forth in Appendix 4;
(ii) In the case of Purchase Option B-2, Option Price B-2
calculated pursuant to the method set forth in Appendix 4; and
(iii) In the case of Purchase Option B-3, Option Price B-3
calculated pursuant to the method set forth in Appendix 4.
2.2.3 Right of First Refusal held by OSI LP
(a) In the event Purchase Option B is not exercised
within the sixty (60) days period commencing upon
the termination of the Executive Stockholder's
employment with OSI LP, and the Executive
Stockholder (or his/her permitted successors in the
event of death) thereafter desires to transfer
his/her Common Stock, the Executive Stockholder
shall, prior to any desired Transfer, give OSI LP
and the Company written notice of such desire
("Transfer Notice B"), which transfer notice shall
specify such Executive Stockholder's Common Stock to
be transferred, the identity of the proposed
transferee, the purchase price (the "Purchase Price
B") for the Common Stock to be transferred and the
terms for payment of said Purchase Price B. Upon
receipt of a proper Transfer Notice B, OSI LP shall
have the right to acquire such Executive
Stockholder's Common Stock as is specified in the
Transfer Notice B. In the event the terms of
payment are such that OSI LP cannot reasonably
duplicate, OSI LP shall have the right to substitute
the reasonable cash equivalent thereof.
(b) (i) OSI LP may exercise the right of first
refusal contained herein by mailing written
notice thereof ("Election Notice B") to the
Executive Stockholder within thirty (30) days of
the date of receipt of the Transfer Notice B.
In the event OSI LP fails to mail the Election
Notice B to the transferring Executive
Stockholder within said thirty (30) day period,
OSI LP's rights under this Section 2.2.3 shall
lapse.
(ii) The closing for any purchase under this
Section 2.2.3 shall be consummated and closed on
a date and at a place designated by OSI LP in a
notice to the Executive Stockholder, provided
such consummation and closing date shall occur
within sixty (60) days from the date of mailing
of the Election Notice. At such closing, the
Executive Stockholder shall execute and deliver
all documents and instruments as are necessary
and appropriate, in the opinion of counsel for
the Company, to effectuate the Transfer of the
Executive Stockholder's Common Stock to OSI LP
in accordance with the terms of the Transfer
Notice B and OSI LP shall deliver the Purchase
Price B to the Executive Stockholder in
immediately available funds. OSI LP is entitled
to receive customary representations and
warranties from the Executive Stockholder
regarding his sale of shares (including
representations and warranties regarding good
title to such shares, free and clear of any
liens or encumbrances). In the event the
transferring Executive Stockholder has any
outstanding debts to the Company, or unpaid
capital contribution obligations to the Company,
such debts or unpaid capital contributions,
including any accrued interest, shall be repaid
in full prior to such closing.
(c) The right of first refusal provided herein shall
continue until all of the Executive Stockholder's
Common Stock are transferred by the Executive
Stockholder in compliance with the terms hereof.
2.3 Purchase on Death of Individual Stockholder or Executive
Shareholder
In the event of death of an Individual Stockholder or
Executive Stockholder, if OSI LP does not exercise the
purchase option under 2.1.2 or 2.2.2, the Common Stock may
pass to his/her estate or heirs, provided such estate or
heirs agree that such Common Stock shall be and remain
subject to the rights of first refusal of OSI LP under
Section 2.1.3 or 2.2.3. In the event such estate or heirs
refuse to so agree in writing within twelve (12) days from
the death of the stockholder, the relevant Common Stock
shall automatically be transferred to OSI LP for no
consideration as of the date of the death.
2.4 TRANSFER OF EQUITY SECURITIES BY NPRI
NPRI shall not make any Transfer of any Common Stock now
or hereafter held or acquired by NPRI except pursuant to the
provisions of this Section 2.4.
2.4.1 Restriction on Transfers while NPRI Employee is
Employed by OSI LP
During such time as NPRI Executive is employed by
OSI LP and until the lapse of the purchase options
contained in Section 2.4.2 and 2.4.3 of this Agreement, if
at any time NPRI desires to transfer its Equity
Securities, NPRI shall, prior to any desired Transfer,
give OSI LP written notice of such desire ("Transfer
Notice C") which notice shall specify NPRI's Equity
Securities to be transferred, the identity of the proposed
transferee, the purchase price for the Equity Securities
to be transferred and the terms of payment of said
purchase price. OSI LP shall respond to Transfer Notice C
within thirty (30) days of such notice whether it consents
to the Transfer described in such Transfer Notice C. In
the event OSI LP does not consent to the transfer by NRPI
(which consent OSI LP may or may not give in its sole
discretion), NPRI shall not transfer or request the
Company to redeem such Equity Securities. Failure of OSI
LP to respond to Transfer Notice C shall be deemed a
refusal of consent to the Transfer.
2.4.2 Purchase Option in favor of OSI LP
In the event the NPRI Executive's employment with
OSI LP is terminated for whatever reason, including death
or Disability, OSI LP shall have the exclusive right and
option (but not the obligation) to purchase Common Stock
held by NPRI upon the following terms and conditions
("Purchase Option C"):
(a) Purchase Option C may be exercised by OSI LP to acquire
such Common Stock at any time during a sixty (60) day period
commencing upon the termination of NPRI Executive's employment
with OSI LP.
(b) Purchase Option C shall be exercised by giving written
notice thereof ("Option Notice C") to NPRI in accordance with
the notice provisions hereof. The date of mailing of the
Option Notice C shall be the date of exercise. The Option
Notice shall specify a date and place for closing of the
purchase, which notice shall be not more than thirty (30) days
after the date of exercise. OSI LP shall pay for the Common
Stock to be purchased pursuant to Purchase Option C in
immediately available funds. OSI LP is entitled to receive
customary representations and warranties from NPRI regarding
sale of shares (including representations and warranties
regarding good title to such shares, free and clear of any
liens or encumbrances).
(c) The purchase price to be paid by OSI LP to NPRI shall be:
(i) if, at the time of termination of employment, any time
shares of Preferred Stock of the Company are outstanding,
Option Price C-1 calculated pursuant to the method set forth
in Appendix 4; and
(ii) if, at the time of termination of employment, no shares
of Preferred Stock of the Company are outstanding, Option
Price C-2 calculated pursuant to the method set forth in
Appendix 4.
2.4.3 Right of First Refusal held by OSI LP
(a) In the event Purchase Option C is not exercised
within the sixty (60) days period commencing upon
the termination of NPRI Executive's employment with
OSI LP, and NPRI thereafter desires to transfer its
Common Stock, NPRI shall, prior to any desired
Transfer, give OSI LP and the Company written notice
of such desire ("Transfer Notice C"), which transfer
notice shall specify such Common Stock held by NPRI
to be transferred, the identity of the proposed
transferee, the purchase price (the "Purchase Price
C") for the Common Stock to be transferred and the
terms for payment of said Purchase Price C. Upon
receipt of a proper Transfer Notice C, OSI LP shall
have the right to acquire such NPRI's Common Stock
as is specified in the Transfer Notice C. In the
event the terms of payment is such that OSI LP
cannot reasonably duplicate, OSI LP shall have the
right to substitute the reasonable cash equivalent
thereof.
(b) (i) OSI LP may exercise the right of first
refusal contained herein by mailing written
notice thereof ("Election Notice C") to NPRI
within thirty (30) days of the date of receipt
of the Transfer Notice C. In the event OSI LP
fails to mail the Election Notice C to NPRI
within said thirty (30) day period, OSI LP's
rights under this Section 2.4.3 shall lapse.
(ii) The closing for any purchase under this
Section 2.4.3 shall be consummated and closed on
a date and at a place designated by OSI LP in a
notice to NPRI, provided such consummation and
closing date shall occur within sixty (60) days
from the date of mailing of the Election Notice.
At such closing, NPRI shall execute and deliver
all documents and instruments as are necessary
and appropriate, in the opinion of counsel for
the Company, to effectuate the Transfer of such
NPRI's Common Stock to OSI LP in accordance with
the terms of the Transfer Notice C and OSI LP
shall deliver the Purchase Price C to the
Individual Stockholder in immediately available
funds. OSI LP is entitled to receive customary
representations and warranties from NPRI
regarding his sale of shares (including
representations and warranties regarding good
title to such shares, free and clear of any
liens or encumbrances). In the event NPRI has
any outstanding debts to the Company, or unpaid
capital contribution obligations to the Company,
such debts or unpaid capital contributions,
including any accrued interest, shall be repaid
in full prior to such closing.
(c) The right of first refusal provided herein shall
continue until all of NPRI's Common Stock are
transferred by NPRI in compliance with the terms
hereof.
3. TRANSFER OF PREFERRED STOCK
3.1 Restriction on Transfer of Preferred Stock by the
Management Stockholder
Subject to the provisions set forth in Section 2.4.1:
(a) (i) If at any time either Management
Stockholder desires to transfer its Preferred
Stock, the Management Stockholder shall, prior
to any desired transfer give the other
Management Stockholder and the Company written
notice of such desire ("Transfer Notice D"),
which transfer notice shall specify the
Management Stockholder's Preferred Stock to be
transferred, the identity of the proposed
transferee, the Purchase Price and the terms of
payment of said Purchase Price. Upon receipt of
a Transfer Notice D, the other Management
Stockholder shall have the right to acquire such
transferring Management Stockholder's Preferred
Stock or such portion of such Equity Securities
as is specified in the Transfer Notice D. In
the event the terms of payment in the Transfer
Notice D is such that the transferee Management
Stockholder cannot reasonably duplicate, it
shall have the right to substitute the
reasonable equivalent thereof.
(ii) The other Management Stockholder in receipt of the
Transfer Notice D shall exercise the right of first refusal
contained herein by mailing written Election Notice to the
transferring Management Stockholder within thirty (30) days of
the date of receipt of the Transfer Notice D. In the event
the other Management Stockholder fails to mail the Election
Notice to the transferring Management Stockholder within said
thirty (30) days period the other Management Stockholder's
rights under this Section 3.1 shall lapse.
(iii) The closing for any purchase hereunder shall be
consummated and closed on a date and at a place designated by
the Company in a notice to both the Management Stockholders,
provided such consummation and closing shall occur within
sixty (60) days of mailing of the Election Notice. At such
closing, the transferring Management Stockholder shall execute
and deliver all documents and instruments as are necessary and
appropriate, in the opinion of counsel for the Company to
effectuate the transfer of Management Stockholder's Preferred
Stock to the other Management Stockholder in accordance with
the terms of Transfer Notice D and the other Management
Stockholder shall deliver the Purchase Price to the
transferring management Stockholder in immediately available
funds. The other Management Stockholder is entitled to receive
customary representations and warranties from the transferring
Management Stockholder regarding his sale of shares (including
representations and warranties regarding good title to such
shares, free and clear of any liens or encumbrances). In the
event the transferring Management Stockholder has any
outstanding debts to the Company, or unpaid capital
contribution obligations to the Company, such debts or unpaid
capital contributions, including any accrued interest, shall
be repaid in full prior to such closing.
(b) (i) In the event the other Management
Stockholder does not exercise the right of
refusal contained in subparagraph (a), the
Company may exercise the right of first refusal
contained herein by mailing written Election
Notice to the transferring Management
Stockholder within sixty (60) days of the date
of receipt of the Transfer Notice D. In the
event the Company fails to mail the Election
Notice to the transferring Management
Stockholder within said sixty (60) days period
the Company's rights under this Section 3.1
shall lapse.
(ii) The closing for any purchase hereunder shall be
consummated and closed on a date and at a place designated by
the Company in a notice to the transferring Management
Stockholder, provided such consummation and closing shall
occur within sixty (60) days of mailing of the Election
Notice. At such closing, the transferring Management
Stockholder shall execute and deliver all documents and
instruments as are necessary and appropriate, in the opinion
of counsel for the Company to effectuate the transfer of
Management Stockholder's Preferred Stock to the Company in
accordance with the terms of Transfer Notice D and the Company
shall deliver the Purchase Price to the transferring
Management Stockholder in immediately available funds. The
Company is entitled to receive customary representations and
warranties from the transferring Management Stockholder
regarding his sale of shares (including representations and
warranties regarding good title to such shares, free and clear
of any liens or encumbrances). In the event the transferring
Management Stockholder has any outstanding debts to the
Company, or unpaid capital contribution obligations to the
Company, such debts or unpaid capital contributions, including
any accrued interest, shall be repaid in full prior to such
closing.
4. GENERAL PROVISIONS RELATED TO TRANSFERS
4.1. Transfer
(a) "Transfer" as used in this Agreement includes a
sale, gift, mortgage, pledge, exchange, assignment or other
disposition (whether with or without consideration and
whether voluntary or involuntary or by operation of law),
including without limitation, a disposition under judicial
order, legal process, execution, attachment or enforcement
of an encumbrance and including where the context so
requires, redemption by the Company.
(b) Any permitted Transfer shall be made in accordance
with the requirements of Japanese law.
4.2. Transfer in violation of Sections 2 and 3
The parties agree that no Transfer shall be made
except in compliance with the terms of the Agreement. Any
purported transfer contrary to the terms of this Sections 2
and 3 shall be null and void and of no force and effect. In
the event transfer contrary to such terms is made, and the
transferee acquires a valid claim as a shareholder against
the Company under Japanese law, the transferor shall pay OSI
LP as penalty the amount equal to the product of three (3)
and the greater of (i) the market value of the relevant
Equity Securities determined by OSI LP (which shall be
binding on the parties) and (ii) 100 yen multiplied by the
number of shares of the relevant Equity Securities.
4.3. Termination of Rights and Obligations
The rights and obligations of the parties under Sections
2 and 3 irrevocably terminate on the occurrence of any of
the following events: (i) the voluntary or involuntary
dissolution of the Company; or (ii) an acquisition,
consolidation, or merger of the Company into or with another
corporation that results in the Stockholders owning publicly
traded securities.
5. COVENANTS OF STOCKHOLDERS
5.1 Corporate Existence
The Company shall preserve, maintain, and keep in full
force and effect the Company's corporate existence; shall
preserve, maintain, and keep in full force and effect all
rights, franchises, and privileges necessary or desirable in
the normal conduct of the Company's business; and shall
qualify and remain qualified as a foreign corporation in
each jurisdiction in which such qualification is necessary
in view of the Company's business and operations and the
ownership of its properties.
5.2 Publicity
Each Stockholder hereby covenants and agrees that such
Stockholder shall not, directly or indirectly, make any
press release or public notice, announcement, or filing
available to the public concerning the Company, its
Stockholders, or its intended business without prior notice
to and reasonable consultation with the Company and the
other Stockholders, unless such notice and consultation is
impracticable under applicable laws or governmental
regulations.
5.3 Confidentiality
Each Stockholder covenants and agrees that, unless the
Company and each other Stockholder otherwise consent in
advance in writing, and except as otherwise required by any
applicable law or governmental regulation, such Stockholder
shall not, directly or indirectly, disclose to anyone other
than the Stockholders or the employees or directors of the
Company any non-public information regarding this Agreement
or any of the Exhibits or Appendices hereto or the
transactions contemplated hereby or thereby or the
Stockholders or business of the Company.
5.4 Agreement Not to Compete
Each Stockholder other than OSI LP hereby severally
covenant and agree that they shall not, for so long as they
are stockholders of the Company and for a period of three
(3) years thereafter, compete with the Company in any
business in which the Company is engaged or has reasonably
firm plans to engage during such period, or hold any
investment (except for an investment in less than a five
(5)% equity interest in a publicly-traded corporation or
other entity) in any entity that so competes with the
Company. The noncompetition covenants under this
Section 5.3 shall terminate (a) if the Company ceases to be
engaged in restaurant operating business, (ii) a petition is
filed against the Company under any bankruptcy, insolvency
or similar law of any jurisdiction and is not dismissed
within sixty (60) days after such filing, or a receiver,
liquidator, trustee or similar agent for the Company or any
of its property is appointed by court order which remains in
effect for more than sixty (60) days, or (iii) the Company
files a voluntary petition under any bankruptcy, insolvency
or similar law of any jurisdiction, consents to the
appointment of a receiver, liquidator, trustee or similar
agent for it or any of its property, or makes a general
assignment for the benefit of creditors.
5.5 Voting Agreement
No Stockholder holding shares of the Common Stock of the
Company shall take any action to cause the Board of
Directors of the Company to adopt a resolution approving and
authorizing the creation of any share of any class or series
of capital stock of the Company other than the currently
authorized shares of Common Stock and Preferred Stock of the
Company, or of any right or option requiring the Board of
Directors of the Company to adopt a resolution approving and
authorizing the creation of any share of any class or series
of capital stock of the Company other than the currently
authorized classes of the shares of Common Stock and
Preferred Stock of the Company.
6. REPRESENTATIONS AND WARRANTIES
6.1 Representations and Warranties of the Management
Stockholders
Each Stockholder that is a corporation, partnership, or
limited liability company hereby represents and warrants to
the Company and to each other Stockholder as follows:
6.1.1 Organization and Standing
Such Stockholder is duly organized, validly existing,
and in good standing under the laws of the jurisdiction in
which it is organized. Such Stockholder has the
corporate, partnership, or limited liability company power
and authority to enter into this Agreement and to
consummate the transactions contemplated hereby.
6.1.2 Authorization
Such Stockholder has taken all corporate,
partnership, or limited liability company action necessary
for it to enter into this Agreement and to consummate the
transactions contemplated hereby.
6.1.3 Absence of Violation
Neither the execution and delivery of this Agreement,
or of any document or instrument to be executed and
delivered by such Stockholder pursuant hereto, nor the
consummation of the transactions contemplated hereby and
thereby will constitute a violation of, or default under,
or conflict with, or require any consent under (other than
a violation or default that has been waived or a consent
that has been obtained), any term or provision of the
certificate or articles of incorporation or bylaws,
partnership agreement, or certificate or articles of
formation or limited liability company agreement of such
Stockholder or any contract, commitment, indenture, lease,
or other agreement to which such Stockholder is a party or
by which such Stockholder or any of its assets is bound.
6.1.4 Binding Obligation
This Agreement constitutes a valid and binding
obligation of such Stockholder, enforceable in accordance
with its terms, except to the extent that such
enforceability may be limited by bankruptcy, insolvency,
and similar laws affecting the rights and remedies of
creditors generally, and by general principles of equity
and public policy; and each document and instrument to be
executed by such Stockholder pursuant hereto, when
executed and delivered in accordance with the provisions
of this Agreement, shall be a valid and binding obligation
of such Stockholder, enforceable in accordance with its
terms (with the aforesaid exceptions).
6.2 Representations and Warranties of Individual Stockholders
and Executive Stockholder
Each Stockholder who is an individual hereby represents
and warrants to the Company and each other Stockholder as
follows:
6.2.1 Power and Authority
Such Stockholder has the legal capacity and all other
necessary power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby.
6.2.2 Absence of Violation
Neither the execution and delivery of this Agreement,
or of any document or instrument to be executed and
delivered by such Stockholder pursuant hereto, nor the
consummation of the transactions contemplated hereby and
thereby will constitute a violation of, or default under,
or conflict with, or require any consent under (other than
a violation or default that has been waived or a consent
that has been obtained), any term or provision of any
contract, commitment, indenture, lease, or other agreement
to which such Stockholder is a party or by which such
Stockholder or any of his assets is bound.
6.2.3 Binding Obligation
This Agreement constitutes a valid and binding
obligation of such Stockholder, enforceable in accordance
with its terms, except to the extent that such
enforceability may be limited by bankruptcy, insolvency,
and similar laws affecting the rights and remedies of
creditors generally, and by general principles of equity
and public policy; and each document and instrument to be
executed by such Stockholder pursuant hereto, when
executed and delivered in accordance with the provisions
of this Agreement, shall be a valid and binding obligation
of such Stockholder, enforceable in accordance with its
terms (with the aforesaid exceptions).
6.3 Representations and Warranties of the Company
The Company hereby represents and warrants to each
Stockholder as follows:
6.3.1 Organization and Standing
The Company is a corporation duly organized, validly
existing, and in good standing under the laws of Japan.
The Company has the corporate power and authority to enter
into this Agreement and to consummate the transactions
contemplated hereby.
6.3.2 Authorization
The Company has taken all corporate action necessary
for it to enter into this Agreement and to consummate the
transactions contemplated hereby.
6.3.3 Absence of Violation
Neither the execution and delivery of this Agreement,
or of any document or instrument to be executed and
delivered by the Company pursuant hereto, nor the
consummation of the transactions contemplated hereby and
thereby will constitute a violation of, or default under,
or conflict with, or require any consent under (other than
a violation or default that has been waived or a consent
that has been obtained), any term or provision of the
Articles of Incorporation of the Company or any contract,
commitment, indenture, lease, or other agreement to which
the Company is a party or by which the Company or any of
its assets is bound.
6.3.4 Binding Obligation
This Agreement constitutes a valid and binding
obligation of the Company, enforceable in accordance with
its terms, except to the extent that such enforceability
may be limited by bankruptcy, insolvency, and similar laws
affecting the rights and remedies of creditors generally,
and by general principles of equity and public policy; and
each document and instrument to be executed by the Company
pursuant hereto, when executed and delivered in accordance
with the provisions of this Agreement, shall be a valid
and binding obligation of the Company, enforceable in
accordance with its terms (with the aforesaid exceptions).
6.3.5 No Other Representations or Warranties
The Company and each Stockholder hereby acknowledge
that no party hereto has made any representation or
warranty as to the transactions contemplated by this
Agreement, the business or prospects of the Company, or
any other matter, except for the representations and
warranties expressly set forth in this Agreement,
including the Exhibits and Appendices hereto. The Company
and each Stockholder further acknowledge that, in entering
into the transactions contemplated by this Agreement, they
have not relied on any representation or warranty by any
party other than the representations and warranties
expressly set forth in this Agreement, including the
Exhibits and Appendices hereto.
7. EFFECTIVENESS OF AGREEMENT
This Agreement is effective for all purposes at the time
each Stockholder and the Company have executed and delivered
this Agreement.
8. DEFINITIONS
Capitalized terms used in this Agreement have the meaning
ascribed to them as follows:
"Agreement" means this Stockholders Agreement.
"Cause" means, (i) failure of the employee to perform the
duties required of the employee in a manner satisfactory to
OSI LP, in its sole discretion; provided, however, that the
employment shall not be terminated pursuant to this
subparagraph (i) unless OSI LP first gives the employee a
written notice ("Notice of Deficiency"). The Notice of
Deficiency shall specify the deficiencies in the employee's
performance of the employee's duties. The employee shall have
a period of thirty (30) days, commencing on receipt of the
Notice of Deficiency, in which to cure the deficiencies
contained in the Notice of Deficiency. In the event the
employee does not cure the deficiencies to the satisfaction of
OSI LP, in its sole discretion, within such thirty (30) day
period (or if during such thirty (30) day period OSI LP
determines that the employee is not making reasonable, good
faith efforts to cure the deficiencies to the satisfaction of
OSI LP) OSI LP shall have the right to immediately terminate
the term of employment. The provisions of this subparagraph
(i) may be invoked by OSI LP any number of times and cure of
deficiencies contained in any Notice of Deficiency shall not
be construed as a waiver of this subparagraph (i) nor prevent
OSI LP from issuing any subsequent Notices of Deficiency; or
(ii) any dishonesty by the employee in the employee's dealings
with OSI LP or the Company, the commission of fraud by the
employee, negligence in the performance of the duties of the
employee, insubordination, willful misconduct, or the
conviction (or plea of guilty or nolo contendere) of the
employee of any felony, or any other crime involving
dishonesty or moral turpitude; or (iii) any violation of any
covenant or restriction contained in Section 2.4.1, Section
5.2, Section 5.3 or Section 5.4 hereof; or (iv) any violation
of any material published policy of OSI LP, the Company or
their affiliates (material published policies include, but are
not limited to, the OSI LP's discrimination and harassment
policy, responsible alcohol policy and xxxxxxx xxxxxxx
policy).
"Common Stock" means the common stock of the Company.
"Company" means OSJ K.K. a Japan Kabushiki Kaisha.
"Disability" means the inability of the employee, arising
out of any medically determinable physical or mental
impairment, to perform the services required of the employee
hereunder for a period of ninety (90) consecutive days.
"Equity Securities" means any share of any class or series
of capital stock of the Company or any right or option to
acquire any share of capital stock of the Company and includes
the Common Stock and the Preferred Stock.
"Executive Stockholder" means the person identified in
Appendix 3.
"Executive Stock" has the meaning ascribed to that term in
Section 2.5.2.
"Individual Stockholder" means any person identified as
such in Appendix 2.
"Management Stockholder" means the entities identified as
such in Appendix 1.
"NPRI" means Newport Pacific Restaurants, Inc., a Georgia
corporation.
"NPRI Employee" means Xxxx Xxxxxxxxxxx.
"OSI LP" means Outback Steakhouse International, L.P., a
Georgia limited partnership.
"Preferred Stock" means the preferred stock of the Company.
"Stockholder" has the meaning ascribed to that term in the
first paragraph of this Agreement.
9. MISCELLANEOUS
9.1 Additional Actions and Documents
Each of the parties hereto hereby agrees to take or cause
to be taken such further actions, to execute, deliver and
file or cause to be executed, delivered and filed such
further documents and instruments, and to obtain such
consents, as may be necessary or as may be reasonably
requested in order to fully effectuate the purposes, terms
and conditions of this Agreement.
9.2 Expenses
Each party shall pay his or its own expenses incident to
the preparation and negotiation of this Agreement and the
transactions contemplated hereunder, including all legal and
accounting fees and disbursements.
9.3 Assignment
Neither the Company nor any Stockholder may assign this
Agreement, in whole or in part, whether by operation of law
or otherwise, (a) unless such person has obtained the prior
written consent of all the other parties, or (b) unless and
to the extent that such assignment is in connection with a
transfer of Equity Securities upon death of such Stockholder
in accordance with Section 2.3. Any purported assignment of
this Agreement contrary to its terms is null and void and of
no force and effect.
9.4 Entire Agreement; Amendment
This Agreement, including the Appendices and Exhibits
hereto and other writings referred to herein or delivered
pursuant hereto, constitutes the entire agreement among the
parties to this Agreement with respect to the transactions
contemplated herein, and it supersedes all prior oral or
written agreements, commitments or understandings with
respect to the matters provided for herein. No amendment,
modification or discharge of this Agreement is valid or
binding unless set forth in writing and duly executed by all
the Stockholders.
9.5 Waiver
No delay or failure on the part of any party to this
Agreement in exercising any right, power or privilege under
this Agreement or under any other instruments given in
connection with or pursuant to this Agreement shall impair
any such right, power or privilege or be construed as a
waiver of any default or any acquiescence therein. No
single or partial exercise of any such right, power or
privilege shall preclude the further exercise of such right,
power or privilege, or the exercise of any other right,
power or privilege. No waiver will be valid against any
party to this Agreement unless made in writing and signed by
the party against whom enforcement of such waiver is sought
and then only to the extent expressly specified therein.
9.6 Limitation on Benefit
It is the explicit intention of the parties hereto that
no person or entity other than the parties to this Agreement
is or shall be entitled to bring any action to enforce any
provision of this Agreement against any of the parties, and
the covenants, undertakings and agreements set forth in this
Agreement shall be solely for the benefit of, and shall be
enforceable only by, the parties to this Agreement or their
respective successors, heirs, executors, administrators,
legal representatives and permitted assigns.
9.7 Binding Effect
This Agreement binds and inures to the benefit of the
parties to this Agreement and their respective successors,
heirs, executors, administrators, legal representatives and
permitted assigns.
9.8 Governing Law
This Agreement, the rights and obligations of the parties
hereto, and any claims or disputes relating thereto, shall
be governed by and construed in accordance with the laws of
Japan (excluding the choice of law rules thereof).
9.9 Notices
Every notice or other communication required or
contemplated by this Agreement must be in writing and hand-
delivered or mailed by first-class, registered or certified
mail, return receipt requested, postage prepaid, or
transmitted by telegram, telecopy, facsimile transmission or
telex, addressed as follows:
(i) If to the Company:
Outback Steakhouse Japan Co., Ltd.
Telest Building 2F
0-0, Xxxxx-Xxxxx 0-xxxxx, Xxxxxx-xx
Xxxxx 000-0000 Xxxxx
with a copy (which does not constitute
notice) to:
Outback Steakhouse International L.P.
Attention: CFO
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx, 00000
X.X.X.
(ii) If to a Stockholder:
To such Stockholder's address on
Appendix 1, 2 and 3.
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 hand-delivered,
mailed transmitted, telecopied or telexed in the manner
described above, or that is delivered to a telegraph
company, will be considered sufficiently given, served,
sent, received or delivered for all purposes at the time it
is delivered to the addressee (with the return receipt, the
delivery receipt, or the answerback being considered
conclusive, but not exclusive, evidence of such delivery) or
at the time the addressee refuses delivery upon
presentation.
9.10 Headings
Article and Section headings contained in this Agreement
are inserted for convenience of reference only, are not a
part of this Agreement for any purpose, and do not in any
way define or affect the meaning, construction or scope of
any of the provisions of this Agreement.
9.11 Execution in Counterparts
This Agreement may be executed in counterparts; each of
which is an original.
IN WITNESS WHEREOF, the undersigned are executing
this Agreement as of the date stated in the introductory
clause.
OUTBACK STEAKHOUSE
INTERNATIONAL L.P.
By:OUTBACK STEAKHOUSE
INTERNATIONAL, INC.,
its general partner
By:
Name:
Title
NEWPORT PACIFIC RESTAURANTS,
INC.
By:
Name:
Title
XXXXXXX XXXXX
XXXXXXX XXXXX XXXXXXX
XXXXXX XXXXXX
XXXXXXX XXXXXX
XXXX XXXXXXX
XXX XXXX
XXXXX XXXXXXXX
XXXXX XXXXXXXX
XXXXX XXX XXXXXXX
OUTBACK STEAKHOUSE JAPAN CO.,
LTD.
By:
Name:
Title
Appendix 1Management Stockholders
Appendix 2Individual Stockholders
Appendix 3Executive Stockholder
Appendix 4Calculation of Purchase Price in respect of
Sections2.1.2 and 2.2.2 and 2.4.2
MANAGEMENT STOCKHOLDERS
Name/Notice Address Numbers and Class of Equity
Securities held
OSI 0000 Xxxxx Xxxx, Xxxxx : 2,921,0 Preferred
LP 000, Xxxxxxx, Xxxxxxx, 00 Xxxxx
00000 X.X.X.
65,000 Common
Stock
NPRI 0000 Xxxxxxx Xxxx, Xxxxx : 289,000 Preferred
102-273, Xxxxxxx, Xxxxx
Xxxxxxx, 00000-0000
X.X.X.
15,000 Common
Stock
INDIVIDUAL STOCKHOLDERS
Name Notice Address Numbers and Class of Equity
Securities held
Xxxxxxx 000 Xxxxxxx Xxx., Xxxxxxx, : 2,44 Common
Xxxxx XX 00000 0 Stock
Xxxxxxx 0000 Xxxxxxx Xxxx Xxxxxx, : 2,44 Common
Walther Atlanta, 0 Xxxxx
XX 00000
Xxxxxx 00 X. Xxxxxxxxxx Xx., : 2,44 Common
Xxxxxx Atlanta, 0 Xxxxx
XX 00000
Xxxxxxx 0000 Xxxxxxxxx Xxxxxx, : 000 Xxxxxx
Xxxxxx Xxxxxxxxxx, XX 00000 Stock
Xxxx Xxxxxxx 0000 Xxxxxxxx Xx, XX, : 000 Xxxxxx
Xxxxxxx, Xxxxx
XX 00000
Xxx Xxxx 000 Xxxxxxxxxxx Xx., : 000 Xxxxxx
Xxxxxxx, Xxxxx
XX 00000
Xxxxx 0000 Xxxxxxxx Xxxx Xxxxx, : 000 Xxxxxx
Xxxxxxxx Xxxxxxxx, XX 00000 Stock
Xxxxx 0000 Xx. Xxxxxx Xx., : 000 Xxxxxx
Xxxxxxxx Xxxxxxxx, Xxxxx
XX 00000
EXECUTIVE STOCKHOLDER
Name Notice Address Numbers and Class of Equity
Securities held
Xxxxx c/o Outback Steakhouse :10,00 Common
Xxxxxxx International L.P. 0 Stock
Attention: CFO
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx, 00000
X.X.X.
CALCULATION OF OPTION PRICE IN RESPECT OF SECTIONS 2.1.2,
2.2.2 and 2.4.2
Option Price A-1: Net worth of the Company on its books as
prepared by the Company divided by the number of
shares of Common Stock outstanding at the time
of the relevant date of exercise.
Option Price A-2: The purchase price shall be the Appraised
Value of the Common Stock. The Appraised Value
shall be such price as the Individual
Stockholder and OSI LP shall agree. In the event
they cannot agree, the Individual Stockholder
and OSI LP shall each have the right to have the
value of the Common Stock ("Appraised Value")
determined by appraisal in accordance with the
following terms. The Individual Stockholder or
OSI LP shall provide the other with written
notice of the Individual Stockholder's or OSI
LP's election to use the appraisal process
within ten (10) days following the date of the
Option Notice. If neither the Individual
Stockholder or OSI LP provide the other with
timely written notice of an election to use the
appraisal process, the Individual Stockholder's
and OSI LP's right to an appraisal shall forever
lapse and be null and void and the Appraised
Value of the Individual Stockholder's Common
Stock shall be finally and conclusively deemed
equal to: fifty percent (50%) of the Individual
Stockholder's total cash distributions with
respect to the Common Stock for the twenty-four
(24) months immediately prior to the month of
the date of termination of employment,
multiplied by five (5).
If the Individual Stockholder or OSI LP gives
timely notice of election to have an appraisal,
two (2) appraisers shall be appointed within
twenty (20) days following the date of the
Option Notice, one by the Individual
Stockholder, and one by OSI LP. If the
Individual Stockholder, on the one hand, or OSI
LP, on the other hand, fails to appoint an
appraiser within the twenty (20) day period
specified herein, the sole appraiser appointed
within such twenty (20) day period shall be the
sole appraiser for the purposes of determining
the Appraised Value of the Common Stock to be
purchased. The Individual Stockholder and OSI LP
shall promptly provide notice of the name of the
appraiser so appointed by such party to the
other. A third appraiser, if the initial two
appraisers are appointed, shall be appointed by
the mutual agreement of the first two appraisers
so appointed. Each of the appraisers shall
submit to the Individual Stockholder and OSI LP,
within thirty (30) days after the final
appraiser has been appointed ("Appraisal
Period"), a written appraisal of the Appraised
Value of the Common Stock.
In connection with any appraisal conducted
pursuant to the provisions herein, the parties
hereto agree that each appraiser appointed
hereunder shall be given full access during
normal business hours to all information
required and relevant to a valuation of the
Common Stock.
It is the intent of the parties that the
Appraised Value of the Common Stock be
determined solely by reference to the Company's
restaurants which are open and in operation as
of the date of the appraisal ("Restaurants").
Accordingly, in determining the Appraised Value
of the Common Stock, the appraiser shall not
consider, take into account or attribute any
value to (and shall be so instructed in writing
by the parties) any goodwill or other value
attributable to the Outback Steakhouser
restaurant operating system ("System") or the
Outback Steakhouser trademarks ("Proprietary
Marks") (other than the Company's right to
utilize the System and Proprietary Marks in the
operation of the Restaurants), and no value
shall be attributed to any right or prospect of
opening additional restaurants in the future.
If three appraisers are appointed, the Appraised
Value of the Common Stock shall be equal to the
numerical average of three appraised valuations;
provided, however, that if the difference
between any two appraisals is not more than ten
percent (10%) of the lower of the two, and the
third appraisal differs by more than twenty-five
percent (25%) of the lower of the other two
appraisals, the numerical average of such two
appraisals shall be determinative.
Any appraiser, to be qualified to conduct an
appraisal hereunder, shall be an independent
appraiser (i.e., not affiliated with OSI LP or
the Individual Stockholder), and shall be
reasonably competent as an expert to appraise
the value of the Common Stock. If any appraiser
initially appointed under this Agreement shall,
for any reason, be unable to serve, a successor
appraiser shall be promptly appointed in
accordance with the procedures pursuant to which
the predecessor appraiser was appointed.
Notwithstanding the foregoing, if the
determination of the Appraised Value of the
Common Stock by appraisal is not completed and
all appraisal reports delivered as provided
herein within the Appraisal Period, then all
closing, payment and similar dates subsequent
thereto shall be automatically extended one (1)
day for each day delivery of the appraisal
reports is delayed beyond the end of the
Appraisal Period.
The cost of the appraiser appointed by each
party shall be borne by each such party. The
cost of the third appraiser, if any, or the sole
appraiser, in the event the Individual
Stockholder and OSI LP mutually agree upon a
single appraiser, shall be borne equally by the
Individual Stockholder and OSI LP.
Option Price B-1: 600 yen per Common Stock less, accumulated
loss of the Company on the books of the Company
as prepared and accounted for by the Company
during the period of employment of Executive
Stockholder divided by the number of Common
Stock outstanding at the time of the relevant
date of exercise.
Option Price B-2: The Appraised Value as calculated using the
method set forth for Option Price A-2 shall be
used; provided, however, that in the event of
termination of the Executive Stockholders's
employment due to the his death or Disability,
the purchase price shall be a percentage (not to
exceed 100%) of the Appraised Value, such
percentage being the same percentage as (i) the
number of months elapsed from the commencement
of his employment to the termination of
employment, bears to (ii) sixty (60).
Option Price B-3: The method for calculating Option Price A-
2 shall be used.
Option Price C-1: The method for calculating Option Price A-
1 shall be used.
Option Price C-2: The method for calculating Option Price A-
2 shall be used.
