EXHIBIT 2.2
FIRST AMENDMENT
TO THE AGREEMENT AND PLAN OF REORGANIZATION
THIS FIRST AMENDMENT TO THE AGREEMENT AND PLAN OF REORGANIZATION (the
"Amendment") is made and entered into as of the day of October, 1997, by
and among OUTBACK STEAKHOUSE, INC., a Delaware corporation ("OSI"), OUTBACK
STEAKHOUSE OF FLORIDA, INC., a Florida corporation ("Outback"), XXXXX &
ASSOCIATES, INC., a Michigan corporation ("WAI") and XXXX X. XXXXX, an
individual residing in the State of Michigan ("Xxxxx").
W I T N E S S E T H
WHEREAS, Outback and WAI were partners in that certain Florida limited
partnership known as Outback/Detroit Limited Partnership ("Partnership")
which operates Outback Steakhouse restaurants in the State of Michigan; and
WHEREAS, OSI, Outback, WAI and Xxxxx are parties to that certain
Agreement and Plan of Reorganization dated August 6, 1997 (the "Agreement");
and
WHEREAS, pursuant to the Agreement, WAI was merged with and into
Outback (the "Merger") and all of the outstanding shares of capital stock of
WAI, owned by Xxxxx, were converted into shares of Common Stock, par value
$.01, of OSI (the "OSI Common Stock"); and
WHEREAS, in connection with the Merger, OSI desires that WAI and
Xxxxx settle and release all claims WAI and Xxxxx may have against OSI,
Outback and the Partnership arising out of or related to OSI, Outback and/or
the Partnership's development and/or operation of any Outback Steakhouse
restaurants in the states of Michigan and Ohio, subsequent to April 1, 1997;
and
WHEREAS, in consideration for such settlement and release, OSI
shall increase the number of shares of OSI Common Stock to be issued pursuant
to the Merger by an additional 20,458 shares of OSI Common Stock; and
WHEREAS, the parties hereto desire by this Amendment to set forth
the terms and conditions of such settlement and release.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, the parties hereto covenant and
agree as follows:
1. Increase in Number of Shares. OSI shall increase the number of
shares of OSI Common Stock to be issued pursuant to the Merger by an
additional twenty thousand four hundred and fifty-eight (20,458) shares of
OSI Common Stock (the "Additional Shares"). The Agreement shall be amended
as follows to issue the Additional Shares:
A. Section 1.1 of the Agreement shall be amended in its entirety to
read as follows:
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The Merger. Subject to and upon the terms and conditions
contained herein, WAI 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 WAI prior to the Merger. As a result of the
Merger, each voting and nonvoting common share of WAI 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 18.6458 shares
of OSI Common Stock.
B. Section 1.2(a) of the Agreement shall be amended in its entirety to
read as follows:
Except as otherwise provided in Section 1.2, the total number of
shares of OSI Common Stock to be issued pursuant to the Merger shall be
one hundred eighty-six thousand, four hundred fifty eight (186,458).
C. Section 1.2(b) of the Agreement shall be amended in its entirety to
read as follows:
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 WAI 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)
WAI shall have issued additional shares of its capital stock, the number
of shares of OSI Common Stock received in exchange for each share of
WAI's capital stock shall be adjusted so that the aggregate number of
shares of OSI Common Stock received in exchange for all shares of WAI's
capital stock (assuming no Dissenting Shares) remains at one hundred
eighty-six thousand, four hundred fifty eight (186,458).
2. Limitation on Registration Rights. The registration
rights granted to Xxxxx pursuant to Article 7 of the Agreement shall not
apply to the Additional Shares.
3. Restriction on Sale. Xxxxx may not sell any of the
Additional Shares prior to October 1, 1998. Xxxxx may sell twenty percent
(20%) of the Additional Shares in each one-year period subsequent to October
1, 1998. A restrictive legend reflecting such restriction shall be placed on
each of the Certificates representing the Additional Shares.
4. Settlement and Release of Claims. Section 1 of the
Agreement shall be amended to add the following as Section 1.12:
1.12 Settlement and Release of Claims. WAI and Xxxxx
hereby release, acquit and forever discharge OSI, Outback and the
Partnership of and from any and every action, cause of action, claim,
demand, right, obligation, remedy, liability, cost and
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expense they have or may have against OSI, Outback and/or the
Partnership of whatsoever kind or nature, whether legal, equitable or
administrative, and whether known or unknown, arising directly or
indirectly or pertaining in any way to OSI's, Outback's and/or the
Partnership's development and/or operation of any Outback Steakhouse
restaurant in the states of Michigan and Ohio, including, but not
limited to, any claim of ownership WAI or Xxxxx may have with respect to
any Outback Steakhouse restaurants opened subsequent to April 1, 1997.
5. Effective Date. This Amendment shall be deemed effective
as of the Effective Date as such term is defined in Section 1.6 of the
Agreement.
6. Entire Agreement. The Agreement, as modified by this
Amendment, shall constitute and contain the complete agreement among the
parties with respect to the transactions contemplated thereby and supersede
all prior agreements and understandings among the parties with respect to
such transactions.
7. Counterparts. This Amendment 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.
8. Successors and Assigns. This Amendment and the rights,
interests and obligations hereunder shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and
assigns.
9. Governing Law. This Amendment 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.
10. Headings. All headings and captions in this Amendment
are intended solely for the convenience of the parties and none shall be
deemed to affect the meaning or construction of any provision hereof.
11. Construction. All references herein to the masculine,
neuter or singular shall be construed to include the masculine, feminine,
neuter or plural, where applicable.
12. Jurisdiction and Venue. The parties agree that any
action relating to this Amendment, brought by either party against the other
in any court, whether federal or state, shall be brought within the State of
Florida in the judicial circuit in which OSI has its principal place of
business. Each party hereby agrees to submit to the personal jurisdiction of
such courts and hereby waives all questions of personal jurisdiction or venue
for the purpose of carrying out this provision, including, without
limitation, the claim or defense therein that such courts constitute an
inconvenient forum.
13. Enforcement. In the event it is necessary for any party
to retain legal counsel or institute legal proceedings to enforce the terms
of this Amendment, 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the day and year first above written.
"OSI"
Attest: OUTBACK STEAKHOUSE, INC.
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXX XXXXXX X. XXXXXX
Title: Secretary Title: Chief Operating
Officer
"Outback"
Attest: OUTBACK STEAKHOUSE OF
FLORIDA, INC.,
a Florida corporation
By: /s/ Xxxxxx X. Xxxxx By:/s/ Xxxx X. Xxxxx
XXXXXX X. XXXXX XXXX X. XXXXX
Title: Secretary Title: President
Witness: "Xxxxx"
/s/ Xxxxx Xxxxx Xxxxx /s/ XXXX X. XXXXX
XXXX X. XXXXX
______________________________________
"WAI"
Attest: XXXXX & ASSOCIATES, INC.
a Michigan corporation
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxx X. Xxxxx
XXXX X. XXXXX XXXX X. XXXXX
Title: Secretary Title: President
