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EXHIBIT 4.36
AGREEMENT AND PLAN OF REORGANIZATION
AMONG
OUTBACK STEAKHOUSE, INC.,
OUTBACK STEAKHOUSE OF FLORIDA, INC.,
XXXXXXX RESTAURANT GROUP, INC.
AND
XXXXXXX X. XXXXXXX
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TABLE OF CONTENTS
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ARTICLE 1 - PLAN OF ACQUISITION....................................................................2
1.1 The Merger................................................................................2
1.2 Adjustments...............................................................................2
1.3 Closing...................................................................................2
1.4 Execution and Delivery of Closing Documents...............................................3
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.................................................................4
1.10 Fractional Shares.........................................................................4
1.11 Accounting Treatment......................................................................4
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES OF XXXXXXX RESTAURANT GROUP, INC. AND XXXXXXX...........4
2.1 Organization and Good Standing............................................................4
2.2 Power and Authority.......................................................................4
2.3 Foreign Corporation.......................................................................4
2.4 Authority and Validity....................................................................4
2.5 Binding Effect............................................................................5
2.6 Compliance with Other Instruments.........................................................5
2.7 Capitalization of XxXXXXX RESTAURANT GROUP, INC...........................................5
2.8 Absence of Certain Changes................................................................6
2.9 Tax Liabilities...........................................................................7
2.10 No Undisclosed Liabilities................................................................7
2.11 Title to Properties.......................................................................7
2.12 Contracts.................................................................................8
2.13 Litigation and Government Claims..........................................................8
2.14 No Violation of Any Instrument............................................................8
2.15 Necessary Approvals and Consents..........................................................8
2.16 Compliance With Laws......................................................................9
2.17 Accuracy of Information Furnished.........................................................9
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF XxXXXXX..............................................9
3.1 Authority and Validity....................................................................9
3.2 Binding Effect............................................................................9
3.3 Ownership.................................................................................10
3.4 Voting....................................................................................10
3.5 Residency.................................................................................10
3.6 Compliance with Other Instruments.........................................................10
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TABLE OF CONTENTS (CONTINUED)
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ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF OSI AND OUTBACK......................................10
4.1 Organization and Good Standing............................................................10
4.2 Foreign Qualification.....................................................................10
4.3 Power and Authority.......................................................................10
4.4 Authority and Validity....................................................................10
4.5 Binding Effect............................................................................11
4.6 Compliance with Other Instruments.........................................................11
4.7 Capitalization of OSI.....................................................................11
4.8 SEC Reports...............................................................................11
4.9 Litigation and Government Claims..........................................................12
4.10 Necessary Approvals and Consents..........................................................12
4.11 Absence of Certain Changes or Events......................................................12
ARTICLE 5 - JOINT COVENANTS OF XXXXXXX RESTAURANT GROUP, INC., XXXXXXX, OSI AND OUTBACK............12
5.1 Notice of any Material Change.............................................................12
5.2 Cooperation...............................................................................13
5.3 Post-Closing Adjustment...................................................................13
5.4 Distribution and Allocations..............................................................14
5.5 Additional Agreements.....................................................................14
ARTICLE 6 - COVENANTS OF XXXXXXX RESTAURANT GROUP, INC. AND XXXXXXX................................14
6.1 Securities Law Compliance.................................................................14
6.2 Payment of Liabilities....................................................................16
6.3 Pooling...................................................................................16
ARTICLE 7 - COVENANTS OF OSI AND OUTBACK...........................................................16
7.1 Employment Agreements.....................................................................16
7.2 Assumed Liabilities.......................................................................17
ARTICLE 8 - JOINT CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS......................................17
8.1 Consents to Transaction...................................................................17
8.2 Absence of Litigation.....................................................................17
8.3 Dissenter's Rights........................................................................17
ARTICLE 9 - CONDITIONS PRECEDENT TO OBLIGATIONS OF XXXXXXX RESTAURANT GROUP, INC...................17
9.1 Compliance................................................................................18
9.2 Representations and Warranties............................................................18
9.3 Material Adverse Changes..................................................................18
ARTICLE 10 - CONDITIONS PRECEDENT TO OBLIGATIONS OF OSI AND
OUTBACK...................................................................................18
10.1 Compliance................................................................................18
10.2 Representations and Warranties............................................................18
10.3 Current Financial Status..................................................................18
10.4 Material Adverse Changes..................................................................18
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TABLE OF CONTENTS
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ARTICLE 11 - INDEMNIFICATION.......................................................................19
11.1 Indemnification Based on Agreement........................................................19
11.2 Limitation................................................................................19
11.3 Cooperation...............................................................................19
11.4 Notice....................................................................................19
ARTICLE 12 - MISCELLANEOUS.........................................................................20
12.1 Termination...............................................................................20
12.2 Expenses..................................................................................21
12.3 Entire Agreement..........................................................................21
12.4 Survival of Representations and Warranties................................................21
12.5 Counterparts..............................................................................21
12.6 Notices...................................................................................21
12.7 Successors and Assigns....................................................................22
12.8 Governing Law.............................................................................22
12.9 Waiver and Other Action...................................................................22
12.10 Severability..............................................................................22
12.11 Headings..................................................................................22
12.12 Construction..............................................................................22
12.13 Jurisdiction and Venue....................................................................22
12.14 Enforcement...............................................................................23
12.15 Further Assurances........................................................................23
12.16 Equitable Remedies........................................................................23
EXHIBIT A
ARTICLES OF MERGER.................................................................................A-1
EXHIBIT B
DISCLOSURE SCHEDULES...............................................................................B-1
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made
and entered effective as of June 27, 2000, by and among OUTBACK STEAKHOUSE,
INC., a Delaware corporation ("OSI"), OUTBACK STEAKHOUSE OF FLORIDA, INC., a
Florida corporation ("Outback"), XxXXXXX RESTAURANT GROUP, INC., an Arizona
corporation ("XxXXXXX RESTAURANT GROUP, INC."), and XXXXXXX X. XxXXXXX, an
individual residing in the State of Arizona ("XxXxxxx").
W I T N E S S E T H:
WHEREAS, Outback is a wholly-owned subsidiary of OSI; and
WHEREAS, XxXxxxx is the sole owner of the issued and outstanding
common stock of XxXXXXX RESTAURANT GROUP, INC., and XxXxxxx is the sole
director, President and is responsible for the day-to-day operations of XxXXXXX
RESTAURANT GROUP, INC.; and
WHEREAS, Outback and XxXXXXX RESTAURANT GROUP, INC. have entered into
that certain Florida limited partnership known as Outback/Phoenix-II, Limited
Partnership ("Partnership");
WHEREAS, the Partnership operates Outback Steakhouse(R)restaurants in
the State of Arizona and New Mexico; and
WHEREAS, the Board of Directors of XxXXXXX RESTAURANT GROUP, INC. has
approved the merger of XxXXXXX RESTAURANT GROUP, INC. 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, XxXXXXX RESTAURANT GROUP, INC. will
be merged with and into Outback and all of the outstanding shares of capital
stock of XxXXXXX RESTAURANT GROUP, INC. 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, XxXXXXX RESTAURANT GROUP, INC. 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 XxXXXXX RESTAURANT GROUP, INC. prior to the Merger. As a result of the
Merger, each voting and nonvoting common share of XxXXXXX RESTAURANT GROUP,
INC. 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 Seven Hundred Forty
and 04/00 (740.04) 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 Seventy-four Thousand Four (74,004).
(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 XxXXXXX RESTAURANT GROUP, INC. 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) XxXXXXX RESTAURANT GROUP,
INC. shall have issued additional shares of its capital stock, the
number of shares of OSI Common Stock received in exchange for each
share of XxXXXXX RESTAURANT GROUP, INC.'s capital stock shall be
adjusted so that the aggregate number of shares of OSI Common Stock
received in exchange for all shares of XxXXXXX RESTAURANT GROUP,
INC.'s capital stock (assuming no Dissenting Shares) remains at
Seventy-four Thousand Four (74,004).
(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 XxXXXXX RESTAURANT GROUP, INC. (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 June 27, 2000, 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
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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 December 31, 2000, unless further extended by written agreement
of the parties to this Agreement. The parties shall use their best efforts to
effectuate a timely closing as provided in this SECTION 1.3.
1.4 EXECUTION AND DELIVERY OF CLOSING DOCUMENTS. Before the Closing,
each party shall cause to be prepared and at the Closing the parties shall
execute and deliver each agreement and instrument required by this Agreement or
the Merger Agreement to be so executed and delivered and not theretofore
accomplished. At the Closing, each party also shall execute and deliver such
other appropriate and customary documents as the other parties reasonably may
request for the purpose of consummating the transactions contemplated by this
Agreement and the Merger Agreement. All actions taken at the Closing shall be
deemed to have been taken simultaneously at the time the last of any such
actions is taken or completed.
1.5 EXECUTION AND FILING OF MERGER DOCUMENTS. At the time of
completion of the Closing, OSI, Outback, XxXXXXX RESTAURANT GROUP, INC. and
XxXxxxx 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 Arizona 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 filing of the Articles of Merger with the Secretary of
State of the State of Florida and the Secretary of State of the State of
Arizona (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 Arizona 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 Arizona ("Arizona 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 XxXXXXX RESTAURANT GROUP, INC. 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 XxXXXXX RESTAURANT
GROUP, INC. shall be entitled to receive upon surrender of stock certificates
of XxXXXXX RESTAURANT GROUP, INC. representing XxXXXXX RESTAURANT GROUP, INC.
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 XxXXXXX
RESTAURANT GROUP, INC. capital stock is converted shall be deemed issued at the
Effective Date.
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1.9 CLOSING OF TRANSFER BOOKS. At the Closing Date, the stock transfer
books of XxXXXXX RESTAURANT GROUP, INC. shall be closed and no transfer of
capital stock of XxXXXXX RESTAURANT GROUP, INC., shall thereafter be made.
1.10 FRACTIONAL SHARES. No fractional shares of OSI Common Stock and
no certificates or scrip therefor shall be issued. Instead, one whole share of
OSI Common Stock shall be issued for each fractional share of .5 or more of one
whole share and each fractional share of less than .5 of one whole share shall
be disregarded.
1.11 ACCOUNTING TREATMENT. It is the intention of the parties hereto
that the Merger will be treated for financial reporting purposes as a pooling
of interests.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF XXXXXXX RESTAURANT GROUP, INC. AND XXXXXXX
Each of XxXXXXX RESTAURANT GROUP, INC. and XxXxxxx, jointly and
severally, represent and warrant to OSI and Outback as follows:
2.1 ORGANIZATION AND GOOD STANDING. XxXXXXX RESTAURANT GROUP, INC. is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Arizona.
2.2 POWER AND AUTHORITY. XxXXXXX RESTAURANT GROUP, INC. 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 FOREIGN CORPORATION. XxXXXXX RESTAURANT GROUP, INC. is duly
qualified or licensed to do business and in good standing as a foreign
corporation in every jurisdiction where the failure to so qualify could have a
material adverse effect on its respective business, operations, assets or
financial condition.
2.4 AUTHORITY AND VALIDITY.
(a) XxXXXXX RESTAURANT GROUP, INC. 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 XxXXXXX RESTAURANT GROUP, INC. in connection with
this Agreement; and the execution, delivery and performance by XxXXXXX
RESTAURANT GROUP, INC. of this Agreement, the Merger Agreement and the
other documents executed or to be executed by XxXXXXX RESTAURANT
GROUP, INC. in connection with this Agreement have been duly
authorized by all necessary corporate action. The execution, delivery
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and performance by XxXXXXX RESTAURANT GROUP, INC. 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 XxXXXXX
RESTAURANT GROUP, INC. as required under the laws of the State of
Arizona and XxXXXXX RESTAURANT GROUP, INC.'s corporate governance
documents.
(b) XxXxxxx 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 XxXxxxx in connection with
this Agreement.
2.5 BINDING EFFECT. This Agreement, the Merger Agreement and the other
documents executed or to be executed by XxXXXXX RESTAURANT GROUP, INC. and
XxXxxxx in connection with this Agreement have been or will have been duly
executed and delivered by XxXXXXX RESTAURANT GROUP, INC. and XxXxxxx, and are
or will be, when executed and delivered, the legal, valid and binding
obligations of each of XxXXXXX RESTAURANT GROUP, INC. and XxXxxxx 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.
2.6 COMPLIANCE WITH OTHER INSTRUMENTS. Neither the execution and
delivery by XxXXXXX RESTAURANT GROUP, INC. nor XxXxxxx 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 XxXXXXX RESTAURANT GROUP, INC. or XxXxxxx
pursuant to, its certificate of incorporation, bylaws, partnership agreement,
operating agreement or other charter or governance document, or any note, bond,
indenture, mortgage, deed of trust, evidence of indebtedness, loan or lease
agreement, other agreement or instrument (including with customers), judgment,
order, injunction or decree by which XxXXXXX RESTAURANT GROUP, INC. or XxXxxxx
is bound, to which either of them is a party, or to which any assets of either
of them are subject; PROVIDED, HOWEVER, this SECTION 2.5 shall not apply with
respect to any of the foregoing if XxXXXXX RESTAURANT GROUP, INC. is bound
thereby, a party thereto, or its assets subject, solely by reason of its status
as a partner in the Partnership.
2.7 CAPITALIZATION OF XXXXXXX RESTAURANT GROUP, INC.
(a) The authorized capital stock of XxXXXXX RESTAURANT GROUP,
INC. consists of One Hundred (100) common shares. There are One
Hundred (100) common shares issued and outstanding, all of which are
owned by XxXxxxx. There are no other shareholders of XxXXXXX
RESTAURANT GROUP, INC. and no other persons with rights or options to
acquire capital stock of XxXXXXX RESTAURANT GROUP, INC. All of the
issued and outstanding shares of capital stock of XxXXXXX RESTAURANT
GROUP, INC. have been duly authorized and validly issued and are fully
paid and nonassessable. There are no shares of capital stock of
XxXXXXX RESTAURANT GROUP, INC. held in its treasury.
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(b) There are no voting trusts, shareholder agreements or
other voting arrangements to which the shareholder of XxXXXXX
RESTAURANT GROUP, INC. is a party.
(c) There is no outstanding subscription, contract,
convertible or exchangeable security, option, warrant, call or other
right obligating XxXXXXX RESTAURANT GROUP, INC. 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 XxXXXXX RESTAURANT GROUP, INC.
2.8 ABSENCE OF CERTAIN CHANGES. From December 31, 1999 to the Closing
Date, (except solely as a result of XxXXXXX RESTAURANT GROUP, INC.'s status as
a partner in the Partnership) XxXXXXX RESTAURANT GROUP, INC. 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 2.8(c) of the
Disclosure Schedules;
(d) forgiven, compromised, canceled, released, waived or
permitted to lapse any material rights or claims;
(e) entered into or terminated any lease, agreement,
commitment or transaction, or agreed to or made any changes in any
leases or agreements, other than transactions and commitments entered
into in the ordinary course of business;
(f) written up, written down or written off the book value of
any assets;
(g) declared, paid or set aside for payment any dividend or
distribution with respect to its capital stock;
(h) redeemed, purchased or otherwise acquired, or sold,
granted or otherwise disposed of, directly or indirectly, any of its
capital stock or securities or any rights to acquire such capital
stock or securities, or agreed to changes in the terms and conditions
of any such rights outstanding as of the date of this Agreement;
(i) except in the ordinary course of business, increased the
compensation of any employee or paid any bonuses to any employee or
contributed to any employee benefit plan;
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(j) entered into any employment, consulting, compensation or
collective bargaining agreement with any person or group, except oral
employment agreements which can be terminated at will; or
(k) entered into, adopted or amended any employee benefit
plan or severance agreements.
2.9 TAX LIABILITIES. XxXXXXX RESTAURANT GROUP, INC. 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; XxXXXXX RESTAURANT GROUP, INC. 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 XxXXXXX
RESTAURANT GROUP, INC. 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 XxXXXXX RESTAURANT GROUP, INC. nor has
XxXXXXX RESTAURANT GROUP, INC. received notice of any such deficiency,
delinquency or default. XxXXXXX RESTAURANT GROUP, INC. has no reason to believe
that XxXXXXX RESTAURANT GROUP, INC. has or may have any tax liabilities other
than those reflected on the unaudited balance sheet of XxXXXXX RESTAURANT
GROUP, INC. as of December 31, 1999, with any notes thereto, and the related
unaudited statements of income for the twelve months ended December 31, 1999,
together with supplemental information on XxXXXXX RESTAURANT GROUP, INC., each
prepared and attested to by the chief financial officer of XxXXXXX RESTAURANT
GROUP, INC. (the "Balance Sheets") and those arising in the ordinary course of
business since the date thereof. With regard to the foregoing, XxXXXXX
RESTAURANT GROUP, INC. has relied on the accuracy and completeness of the
Schedule K-1 provided by the Partnership.
XxXxxxx shall have sole responsibility for filing all required tax
returns for XxXXXXX RESTAURANT GROUP, INC. OSI shall assist XxXxxxx in
preparing income tax returns and shall cooperate with XxXxxxx to the extent
necessary therefor, and XxXxxxx shall provide OSI with copies of all such
returns at least fifteen (15) days prior to filing.
2.10 NO UNDISCLOSED LIABILITIES. There are no liabilities or
obligations of XxXXXXX RESTAURANT GROUP, INC. (other than material liabilities
arising solely by reason of XxXXXXX RESTAURANT GROUP, INC.'s status as a
partner in the Partnership) of any nature, whether absolute, accrued,
contingent or otherwise, other than liabilities or obligations indicated in
Items 2.10(a) and 2.10(b) of the Disclosure Schedules.
2.11 TITLE TO PROPERTIES. XxXXXXX RESTAURANT GROUP, INC. has good and
marketable title to the assets reflected in its books and records as being
owned by it, (except as they have since been affected by transactions in the
ordinary course of business and consistent with past practices) the real and
personal properties reflected in the Balance Sheets (except for assets subject
to financing leases required to be capitalized under generally accepted
accounting principles, all of which are so reflected in the Balance Sheet or
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notes thereto) and all assets purchased by XxXXXXX RESTAURANT GROUP, INC. 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 2.11 of the Disclosure Schedule and except for liens for taxes,
assessments or other governmental charges not yet due and payable.
Except for those assets acquired since the date of the Balance Sheets,
all material properties and assets owned by XxXXXXX RESTAURANT GROUP, INC. are
properly reflected on the applicable Balance Sheets and notes thereto.
2.12 CONTRACTS. Excluding (i) contracts and commitments between
Outback or OSI and XxXXXXX RESTAURANT GROUP, INC. 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 XxXXXXX
RESTAURANT GROUP, INC. 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 2.12 of the Disclosure Schedule is a complete and accurate list
of all of the contracts and commitments (including summaries of oral contracts)
to which XxXXXXX RESTAURANT GROUP, INC. is a party or by which XxXXXXX
RESTAURANT GROUP, INC. is bound:
2.13 LITIGATION AND GOVERNMENT CLAIMS. Except as indicated in Item
2.13 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 XxXXXXX RESTAURANT GROUP, INC. or the
Partnership or to which any of their business or assets is subject. Except as
indicated in Item 2.13 of the Disclosure Schedule, there are no such
proceedings threatened or, to the best knowledge of XxXXXXX RESTAURANT GROUP,
INC. or XxXxxxx, contemplated or, to the best knowledge of XxXXXXX RESTAURANT
GROUP, INC. or XxXxxxx, 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 XxXXXXX RESTAURANT GROUP, INC. or the Partnership.
2.14 NO VIOLATION OF ANY INSTRUMENT. Except as indicated in Item 2.14
of the Disclosure Schedule, XxXXXXX RESTAURANT GROUP, INC. 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
XxXXXXX RESTAURANT GROUP, INC. pursuant to, the articles or certificates of
incorporation, bylaws or other chartering or governance document of XxXXXXX
RESTAURANT GROUP, INC. 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 XxXXXXX RESTAURANT
GROUP, INC. 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 XxXXXXX RESTAURANT GROUP, INC. is a party, by
which XxXXXXX RESTAURANT GROUP, INC. is bound or to which any of the assets of
XxXXXXX RESTAURANT GROUP, INC. are subject.
2.15 NECESSARY APPROVALS AND CONSENTS. Other than (a) in connection
with or in compliance with the laws of the States of Florida and Arizona with
respect to effectuating the Merger, (b) consents required to be obtained from
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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 XxXXXXX RESTAURANT GROUP, INC. and XxXxxxx 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 XxXXXXX RESTAURANT
GROUP, INC. and XxXxxxx 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 XxXXXXX RESTAURANT GROUP, INC. after
the Effective Date in substantially the same manner as now operated.
2.16 COMPLIANCE WITH LAWS. XxXxxxx has no actual knowledge that
XxXXXXX RESTAURANT GROUP, INC. or the Partnership are not in compliance with
any such laws applicable to their respective business, where failure to so
comply would have a material adverse effect on their business, operations,
properties, assets or conditions.
2.17 ACCURACY OF INFORMATION FURNISHED. No representation or warranty
by XxXXXXX RESTAURANT GROUP, INC. or XxXxxxx 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 XxXXXXX RESTAURANT
GROUP, INC. and XxXxxxx have disclosed to OSI and Outback all facts known to
them that are material to XxXXXXX RESTAURANT GROUP, INC.'s and the
Partnership's respective businesses, operations, financial condition or
prospects.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF XXXXXXX
In addition to the representations and warranties contained in ARTICLE
2, XxXxxxx represents and warrants to OSI and Outback as follows:
3.1 AUTHORITY AND VALIDITY. He has the capacity and authority to
execute, deliver and perform this Agreement and all other agreements and
documents he is executing or will execute in connection herewith or therewith.
3.2 BINDING EFFECT. This Agreement and the other documents executed or
to be executed by XxXxxxx in connection with this Agreement have been or will
have been duly executed and delivered by him and are or will be, when executed
and delivered, his legal, valid and binding obligations enforceable in
accordance with their terms except that:
(a) enforceability may be limited by bankruptcy, insolvency
or other similar laws affecting creditors' rights; and
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(b) the availability of equitable remedies may be limited by
equitable principles of general applicability.
3.3 OWNERSHIP. XxXxxxx is the sole record and beneficial shareholder
of XxXXXXX RESTAURANT GROUP, INC. and no other person has any rights (in any
form) to acquire any capital stock of XxXXXXX RESTAURANT GROUP, INC.
3.4 VOTING. He acknowledges that in his individual capacity as
shareholder and director of XxXXXXX RESTAURANT GROUP, INC., he has voted in
favor of the execution and delivery of this Agreement and the Merger Agreement.
3.5 RESIDENCY. XxXxxxx is, and has been at all times during the one
year period ending on the date hereof, a resident of the State of Arizona.
3.6 COMPLIANCE WITH OTHER INSTRUMENTS. Neither the execution and
delivery by XxXxxxx 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
XxXxxxx pursuant to any note, bond, indenture, mortgage, deed of trust,
evidence of indebtedness, loan or lease agreement, other agreement or
instrument (including with customers), judgment order, injunction or decree by
which XxXxxxx 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
XxXXXXX RESTAURANT GROUP, INC. and XxXxxxx 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 Arizona 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
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and the execution, delivery and performance by OSI and Outback of this
Agreement, the Merger Agreement and the other documents executed or to be
executed by OSI and Outback in connection with this Agreement have been duly
authorized by all necessary corporate action.
4.5 BINDING EFFECT. This Agreement, the Merger Agreement and the other
documents executed or to be executed by OSI and Outback in connection with this
Agreement have been or will have been duly executed and delivered by OSI and
Outback and are or will be, when executed and delivered, the legal, valid and
binding obligations of OSI and Outback, enforceable in accordance with their
terms except that:
(a) enforceability may be limited by bankruptcy, insolvency
or other similar laws affecting creditors' rights; and
(b) the availability of equitable remedies may be limited by
equitable principles of general applicability.
4.6 COMPLIANCE WITH OTHER INSTRUMENTS. Neither the execution and
delivery by OSI and/or Outback of this Agreement, the Merger Agreement, nor the
consummation by it of the transactions contemplated hereby and thereby will
violate, breach, be in conflict with or constitute a default under or permit
the termination or the acceleration of maturity of or result in the imposition
of any lien, claim or encumbrance upon any property or asset of OSI or Outback
pursuant to, the certificate of incorporation or bylaws of OSI or Outback or
any note, bond, indenture, mortgage, deed of trust, evidence of indebtedness,
loan or lease agreement, other agreement or instrument, judgment order,
injunction or decree by which OSI or Outback is bound, to which it is a party
or to which its assets are subject.
4.7 CAPITALIZATION OF OSI. The authorized capital stock of OSI
consists of Two Hundred Million (200,000,000) shares of Common Stock, $.01 par
value and Two Million (2,000,000) shares of Preferred Stock, $.01 par value, of
which approximately 78,118,843 outstanding shares of Common Stock and no shares
of Preferred Stock were issued and outstanding as of June 30, 2000. 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 XxXXXXX RESTAURANT GROUP, INC.'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 XxXXXXX RESTAURANT GROUP, INC.
and XxXxxxx true and complete copies of its (i) Annual Report on Form 10-K for
the year ended December 31, 1999; (ii) Proxy Statement used in connection with
its 2000 Annual Meeting of Shareholders; (iii) 1999 Annual Report to
Shareholders; (iv) all periodic reports, if any, on Form 8-K filed with the
Securities and Exchange Commission since December 31, 1999 to the date hereof;
and (v) all Forms 10-Q, if any, filed with the Securities and Exchange
Commission since December 31, 1999 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
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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 XxXXXXX
RESTAURANT GROUP, INC. and XxXxxxx. 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 Arizona 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, 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
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, 1999, there has not been
any material adverse change in the financial condition, results of operations
or the business, properties, assets or liabilities of Outback or OSI.
ARTICLE 5
JOINT COVENANTS OF XXXXXXX RESTAURANT GROUP, INC., XXXXXXX, OSI AND OUTBACK
XxXXXXX RESTAURANT GROUP, INC. and XxXxxxx, 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
XxXXXXX RESTAURANT GROUP, INC., XxXxxxx, OSI and Outback shall, promptly after
the first notice or occurrence thereof but prior to the Effective Date, advise
the others in writing of any event or the existence of any state of facts that:
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(a) would make any of its representations and warranties in
this Agreement untrue in any material respect; or
(b) would otherwise constitute a material adverse change in
the business, results of operation, working capital, assets,
liabilities or condition (financial or otherwise) of OSI, Outback or
XxXXXXX RESTAURANT GROUP, INC. 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 Closing
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 XxXXXXX RESTAURANT GROUP,
INC. as of the Effective Date; and
(b) the amount of all liabilities of XxXXXXX RESTAURANT
GROUP, INC. (other than liabilities specified in Item 6.2 of the
XxXXXXX RESTAURANT GROUP, INC. Disclosure Schedule to the extent
assumed by Outback) which were not paid in full prior to the Effective
Date.
Upon receipt of such report, XxXxxxx (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 XxXxxxx (and at the expense of
XxXxxxx) shall meet and attempt to agree on the items to which objection was
made. If such persons cannot agree within thirty (30) days from the date of
written objection, the items on which agreement has not been reached shall be
submitted to the Tampa, Florida office of PricewaterhouseCoopers (or other
agreed upon independent "Big Five" accounting firm) for a resolution of such
items and whose decision shall be final and binding on all parties. The fees
and expenses of PricewaterhouseCoopers (or other accounting firm) shall be paid
by the non-prevailing party.
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If, as finally determined, the sum of Subsection (a) above exceeds the
sum of Subsections (b) and (c), OSI shall pay such excess to XxXxxxx 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), XxXxxxx 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 XxXXXXX RESTAURANT GROUP, INC.'s entire share of Partnership
distributions of cash flow, and shall be allocated XxXXXXX RESTAURANT GROUP,
INC.'s shares of profit and loss, from and after June 27, 2000.
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 XxXXXXX RESTAURANT GROUP, INC.
(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
XxXxxxx shall take all such necessary action.
(c) Neither Outback, OSI, XxXXXXX RESTAURANT GROUP, INC. nor
XxXxxxx 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 XXXXXXX RESTAURANT GROUP, INC. AND XXXXXXX
XxXXXXX RESTAURANT GROUP, INC. and XxXxxxx covenant and agree with OSI
as follows:
6.1 SECURITIES LAW COMPLIANCE. XxXxxxx represents, warrants and
covenants to Outback and OSI that:
(a) XxXxxxx has received all schedules and exhibits and the
documents furnished to XxXXXXX RESTAURANT GROUP, INC. pursuant to
SECTION 4.8;
(b) XxXxxxx 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
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could acquire without unreasonable expense that is necessary to verify
the accuracy of information furnished to XxXxxxx.
(c) OSI and Outback have furnished him with all information
requested and full access to materials concerning OSI and Outback
which XxXxxxx and/or his advisors deemed necessary to properly
evaluate the Merger. Such information and access have been made
available and utilized to the extent XxXxxxx considers necessary and
advisable in making an informed investment decision, and XxXxxxx has
consulted his own tax advisor and understands the evaluation of such
materials may require the assistance of experts and XxXxxxx has
utilized such experts to the extent deemed necessary.
(d) XxXxxxx understands that the OSI Common Stock to be
received is an investment of a speculative nature and XxXxxxx must
bear the risks thereof for an indefinite period of time. XxXxxxx 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) XxXxxxx and/or his representatives or advisors who have
acted with or on behalf of XxXxxxx and who have advised XxXxxxx in
this matter have such knowledge and experience in financial and
business matters that XxXxxxx is capable of evaluating the merits and
risks of the Merger for OSI Common Stock.
(f) XxXxxxx is participating in the Merger solely for his
account as a private investment, and XxXxxxx 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. XxXxxxx does not presently intend to
enter into any such agreement or undertaking and there are no present
circumstances which will compel XxXxxxx to sell any OSI Common Stock
so received. XxXxxxx 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 XxXxxxx in OSI Common Stock pursuant to
the Merger is a suitable investment for XxXxxxx given the investment
goals and objectives of XxXxxxx.
(h) XxXxxxx 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 XxXxxxx of any OSI Common Stock
received hereby which is effected other than in strict compliance with
the terms hereof and applicable law.
(i) XxXxxxx understands that the shares of OSI Common Stock
to be issued in the Merger will not be registered under the Securities
Act, nor any state securities laws, and such OSI Common Stock may not
be sold or transferred except in compliance with such laws. Neither
OSI nor Outback will have any obligation to register any such OSI
Common Stock.
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(j) XxXxxxx 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) XxXxxxx 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 XxXxxxx'x spouse in excess
of $300,000 in each of those years and reasonably expects to reach the
same income level in the current tax year.
6.2 PAYMENT OF LIABILITIES. XxXXXXX RESTAURANT GROUP, INC. and XxXxxxx
covenant and agree that all debts and liabilities of XxXXXXX RESTAURANT GROUP,
INC. 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 XxXXXXX RESTAURANT GROUP, INC. assumed by Outback as
specified in Item 6.2 of the Disclosure Schedules.
6.3 POOLING. XxXxxxx agrees that until such time as financial results
of OSI covering at least thirty (30) days of combined operations of OSI and
XxXXXXX RESTAURANT GROUP, INC. subsequent to the Effective Date have been
published, he will not sell or otherwise dispose of any shares of OSI Common
Stock held by him as of the Effective Date or any of such shares thereafter
acquired by him at any time or from time to time prior to the date of such
publication. OSI shall give instructions to its transfer agent and registrar,
Bank of New York, Inc., with respect to the shares of OSI Common Stock issued
pursuant to the Merger, to the effect that no transfer of such shares shall be
effected until the date on which the requisite financial results have been
published and OSI and the transfer agent may take any action, including placing
an appropriate legend on the certificates, they deem necessary to enforce this
provision.
ARTICLE 7
COVENANTS OF OSI AND OUTBACK
OSI and Outback, jointly and severally, covenant and agree with
XxXXXXX RESTAURANT GROUP, INC. and XxXxxxx 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 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.
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7.2 ASSUMED LIABILITIES. OSI and Outback agree to assume and pay the
liabilities specified in Item 6.2 (subject to the amount limits specified in
Item 6.2 of the Disclosure Schedules) and to indemnify and hold harmless
XxXxxxx from any loss or liability therefor.
ARTICLE 8
JOINT CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS
Except as may be waived by OSI, the obligations of XxXXXXX RESTAURANT
GROUP, INC., XxXxxxx, 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. XxXXXXX RESTAURANT GROUP, INC., 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 XxXXXXX RESTAURANT
GROUP, INC. 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 XxXXXXX RESTAURANT GROUP, INC. 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
XxXXXXX RESTAURANT GROUP, INC. for which shareholders have exercised appraisal
or dissenters' rights under applicable law shall be a number which, in the sole
and absolute discretion of OSI, does not jeopardize the financial reporting and
accounting treatment of the Merger specified in SECTION 1.11 or is otherwise
not contrary to the best interests of Outback or OSI.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS OF XXXXXXX RESTAURANT GROUP, INC.
The obligations of XxXXXXX RESTAURANT GROUP, INC. and XxXxxxx to
consummate the transactions contemplated by this Agreement shall be subject to
the satisfaction on or before the Closing Date of each of the following
conditions:
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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 XxXXXXX RESTAURANT GROUP,
INC. and XxXxxxx 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 of OSI's most recent
10-Q, as filed with the Securities and Exchange Commission, through 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. XxXXXXX RESTAURANT GROUP, INC. and XxXxxxx 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 XxXXXXX RESTAURANT GROUP, INC. and/or XxXxxxx in this
Agreement, the Disclosure Schedule, and in all certificates and other documents
delivered by XxXXXXX RESTAURANT GROUP, INC. or XxXxxxx pursuant hereto or in
connection with the transactions contemplated hereby, shall have been true and
correct in all material respects as of the date hereof and shall be true and
correct in all material respects at the Closing Date with the same force and
effect as if such representations and warranties had been made at and as of the
Closing Date, except for changes permitted or contemplated by this Agreement.
10.3 CURRENT FINANCIAL STATUS. OSI shall have received the unaudited
financial statements of XxXXXXX RESTAURANT GROUP, INC. as of June 27, 2000, for
the month then ended.
10.4 MATERIAL ADVERSE CHANGES. Since December 31, 1999, there shall
have occurred no material adverse change in the business, properties, assets,
liabilities, results of operations or condition, financial or otherwise, of
XxXXXXX RESTAURANT GROUP, INC. or the Partnership.
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ARTICLE 11
INDEMNIFICATION
XxXxxxx, 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, XxXxxxx shall indemnify and hold harmless
OSI, Outback and XxXXXXX RESTAURANT GROUP, INC., and OSI, Outback and XxXXXXX
RESTAURANT GROUP, INC., jointly and severally, shall indemnify and hold
harmless XxXxxxx, 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, XxXxxxx shall indemnify OSI, Outback and
XxXXXXX RESTAURANT GROUP, INC., 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 XxXXXXX RESTAURANT GROUP, INC. for any period prior to and
including the Effective Date and (ii) any debt of XxXXXXX RESTAURANT GROUP,
INC. (other than the debts specified in Item 6.2 of the Disclosure Schedule to
the extent assumed by Outback), and (iii) all claims, obligations, causes of
action and liabilities, of whatever kind or character, of any of XxXXXXX
RESTAURANT GROUP, INC. which arise out of or are based upon events first
occurring on or before the Effective Date, except only the liabilities assumed
by Outback as specified in Item 6.2 of the Disclosure Schedule.
11.2 LIMITATION. XxXxxxx shall have no obligation under SECTION 11.1
to indemnify OSI, Outback or XxXXXXX RESTAURANT GROUP, INC. 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 XxXXXXX RESTAURANT GROUP, INC. under
SECTION 11.1 above which shall continue for the period specified in SECTION
12.4(B) hereof) shall terminate two (2) years from the Closing Date; PROVIDED,
HOWEVER, the obligations of indemnity shall not terminate with respect to any
matter for which indemnification is claimed within two (2) years from the
Closing Date.
11.3 COOPERATION. If any claim, demand, action, suit, proceeding or
investigation arising out of or pertaining to this Agreement or the
transactions contemplated hereby is begun or asserted, whether begun or
asserted before or after the Closing Date, the parties hereto will cooperate
and use their best efforts to defend against and respond thereto.
11.4 NOTICE. An indemnified party shall give notice to the
indemnifying party or parties within ten (10) business days after actual
receipt of service or summons to appear in any action begun in respect of which
indemnity may be sought hereunder. Failure to so notify the indemnifying party
or parties shall cause the indemnified party to be liable for any damage caused
by failure to give timely notice. The indemnifying party or parties may
participate at their own expense and with their counsel in the defense of such
action. If the indemnifying party or parties so elect within a reasonable time
after receipt of such notice, they may assume the defense of such action with
counsel chosen by the indemnifying party or parties and approved by the
indemnified party in such action, unless the indemnified party reasonably
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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 XxXXXXX RESTAURANT GROUP,
INC.):
(a) by mutual consent of XxXXXXX RESTAURANT GROUP, INC. and
OSI;
(b) by OSI if there has been a material misrepresentation or
breach of warranty in the representations and warranties of XxXXXXX
RESTAURANT GROUP, INC. or XxXxxxx set forth herein or if there has
been any material failure on the part of XxXXXXX RESTAURANT GROUP,
INC. or XxXxxxx to comply with their obligations hereunder;
(c) by XxXXXXX RESTAURANT GROUP, INC. if there has been a
material misrepresentation or breach of warranty in the
representations and warranties of OSI or Outback set forth herein or
if there has been any material failure on the part of OSI or Outback
to comply with their obligations hereunder;
(d) by either OSI, XxXXXXX RESTAURANT GROUP, INC. or XxXxxxx,
if the transactions contemplated by this Agreement have not been
consummated by December 31, 2000, 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, XxXXXXX RESTAURANT GROUP, INC. or XxXxxxx,
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 OSI or XxXXXXX RESTAURANT GROUP, INC. 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 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 XxXxxxx 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 2.9 (TAX LIABILITIES) shall survive
the Closing for a period ending four years after the filing of XxXXXXX
RESTAURANT GROUP, INC.'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 XxXXXXX RESTAURANT GROUP, INC.
or XxXxxxx: XxXXXXX RESTAURANT GROUP, INC.
00000 X. 00xx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. XxXxxxx
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If to OSI or Outback: OUTBACK STEAKHOUSE, INC.
0000 Xxxxx Xxxxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, General Counsel
Each party may designate by notice in writing a new address to which
any notice, demand, request or communication may thereafter be so given, served
or sent. Each notice, demand, request or communication that is mailed,
delivered or transmitted in the manner described above shall be deemed
sufficiently given, served, sent and received for all purposes at such time as
it is delivered to the addressee (with the return receipt, the delivery
receipt, the affidavit of messenger or (with respect to a telex) the answer
back being deemed conclusive evidence of such delivery) or at such time as
delivery is refused by the addressee upon presentation.
12.7 SUCCESSORS AND ASSIGNS. This Agreement and the rights, interests
and obligations hereunder shall be binding upon and shall inure to the benefit
of the parties hereto and, except as otherwise specifically provided for
herein, their respective successors and assigns.
12.8 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Florida without giving effect to
principles of comity or conflicts of law thereof.
12.9 WAIVER AND OTHER ACTION. This Agreement may be amended, modified
or supplemented only by a written instrument executed by the parties against
which enforcement of the amendment, modification or supplement is sought.
12.10 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, such provision shall be fully severable and
this Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision were never a part hereof; the remaining provisions
hereof shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance; and in lieu of
such illegal, invalid or unenforceable provision, there shall be added
automatically as part of this Agreement, a provision as similar in its terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
12.11 HEADINGS. All headings and captions in this Agreement are
intended solely for the convenience of the parties and none shall be deemed to
affect the meaning or construction of any provision hereof.
12.12 CONSTRUCTION. All references herein to the masculine, neuter or
singular shall be construed to include the masculine, feminine, neuter or
plural, where applicable.
12.13 JURISDICTION AND VENUE. The parties agree that any action
brought by either party against the other in any court, whether federal or
state, shall be brought within the State of Florida in the judicial circuit in
which OSI has its principal place of business. Each party hereby agrees to
submit to the personal jurisdiction of such courts and hereby waives all
questions of personal jurisdiction or venue for the purpose of carrying out
this provision, including, without limitation, the claim or defense therein
that such courts constitute an inconvenient forum.
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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.
12.16 EQUITABLE REMEDIES. The parties hereto acknowledge that a
refusal by a party to consummate the transactions contemplated hereby will
cause irreparable harm to the other parties, for which there may be no adequate
remedy at law. A party not in default at the time of such refusal shall be
entitled, in addition to other remedies at law or in equity, to specific
performance of this Agreement by the party that refused to consummate the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
"OSI"
Attest: OUTBACK STEAKHOUSE, INC.,
a Delaware corporation
By: By:
----------------------------- --------------------------------------
XXXXXX X. XXXXX, Secretary XXXXXX X. XXXXXX, President
"Outback"
Attest: OUTBACK STEAKHOUSE OF FLORIDA, INC.,
a Florida corporation
By: By:
----------------------------- --------------------------------------
XXXXXX X. XXXXX, Secretary XXXXXX X. XXXXXX, Chief Operating
Officer
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"XxXXXXX RESTAURANT GROUP, INC."
Attest: XxXXXXX RESTAURANT GROUP, INC.,
an Arizona corporation
By: By:
----------------------------- --------------------------------------
XXXXXXX X. XxXXXXX, Secretary XXXXXXX X. XxXXXXX, President
Witness: "XxXxxxx"
------------------------------- ----------------------------------------
XXXXXXX X. XxXXXXX
-------------------------------
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