AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit
2.1
ANNEX
A
AMENDMENT
TO AGREEMENT AND PLAN OF MERGER
AMENDMENT,
dated as of May 21, 2007 (this “Amendment”),
among
Kangaroo Holdings, Inc., a Delaware corporation (“Parent”),
Kangaroo Acquisition, Inc., a Delaware corporation and a direct wholly owned
subsidiary of Parent (“Merger
Sub”),
and
OSI Restaurant Partners, Inc., a Delaware corporation (the “Company”),
to
the Agreement and Plan of Merger, dated as of November 5, 2006 (the “Merger
Agreement”), among Parent, Merger Sub and the Company. Unless otherwise
specifically defined in this Amendment, each capitalized term used in this
Amendment shall have the meaning assigned to such term in the Merger
Agreement.
WHEREAS,
Section 8.11 of the Merger Agreement provides that the Merger Agreement may
be
amended in a writing signed by the Company (acting through the Special
Committee), Parent and Merger Sub;
WHEREAS,
the Special Committee has determined, and the Board of Directors has determined,
that it is in the best interests of the Company and its stockholders, and
declared it advisable, to enter into this Amendment, and each of the Special
Committee and the Board of Directors has, as of the date of this Amendment,
approved and adopted this Amendment, and recommended adoption of the Merger
Agreement, as amended by this Amendment, by the stockholders of the
Company;
WHEREAS,
the board of directors of Merger Sub has approved and adopted this
Amendment;
WHEREAS,
the board of directors of Parent, and Parent, as the sole stockholder of Merger
Sub, in each case, have approved and adopted this Amendment; and
WHEREAS,
Parent, Merger Sub and the Company desire to amend the Merger Agreement as
set
forth below.
NOW,
THEREFORE, in consideration of the foregoing and the representations, warranties
and agreements contained in this Amendment, and intending to be legally bound,
Parent, Merger Sub and the Company agree as follows:
| 1. |
Amendment
to Section 1.2.
Section 1.2 of the Merger Agreement is amended by restating Section
1.2 in
its entirety to read as follows:
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“The
closing of the Merger (the “Closing”)
shall
take place at the offices of Wachtell, Lipton, Xxxxx & Xxxx, 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx at 9:00 a.m., local time, on a date to be specified
by the parties (the “Closing
Date”)
which
shall be no later than the seventh business day after the satisfaction or waiver
(to the extent permitted by applicable Law) of the conditions set forth in
Article VI (other than those conditions that by their nature are to be satisfied
at the Closing, but subject to the satisfaction or waiver of such conditions)
(the “Satisfaction
Date”),
or at
such other place, date and time as the Company and Parent may agree in
writing.”
| 2. |
Amendment
to Section 2.1(a).
Section 2.1(a) of the Merger Agreement is amended by replacing the
phrase
“$40.00 in cash (the “Merger
Consideration”)”
with the phrase “$41.15 in cash (the “Merger
Consideration”)”.
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| 3. |
Amendment
to Section 3.17.
Section 3.17 of the Merger Agreement is amended by restating Section
3.17
in its entirety to read as follows:
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“On
November 5, 2006, the Special Committee received the separate opinions of
Wachovia Securities LLC and Xxxxx Xxxxxxx & Co. (the “Advisors”)
to the
effect that, as of such date, the $40 per Share in cash to be received by the
holders of the Company Common Stock (other than Participating Holders) pursuant
to the Merger Agreement (as in effect on November 5, 2006) was fair to such
holders from a financial point of view. On May 21, 2007, the Special Committee
received an opinion of Wachovia Securities LLC to the effect that, as of such
date, the $41.15 per Share in cash to be received by the holders of the Company
Common Stock (other than Participating Holders) pursuant to the Merger Agreement
(upon giving effect this Amendment) is fair to such holders from a financial
point of view. An executed copy of each such opinion has been made available
to
Parent. The Company has been authorized by the Advisors to permit the inclusion
in full of each such opinion in the Proxy Statement (including any supplement).
As of the date of this Agreement, no such opinion has been withdrawn, revoked
or
modified.”
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| 4. |
Amendment
to Section 6.1(a).
Section 6.1(a) of the Merger Agreement is amended by restating Section
6.1(a) in its entirety to read as
follows:
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“The
Company shall have obtained both (i) the Company Stockholder Approval and (ii)
the affirmative vote of the holders, as of the record date, of a majority of
the
number of shares of Company Common Stock held by holders that are not
Participating Holders, voting together as a single class, to adopt the Agreement
and the Merger.”
| 5. |
Amendment
to Section 7.1(b).
Section 7.1(b) of the Merger Agreement is amended by replacing the
phrase
“on or before April 30, 2007 (the “End
Date”)”
with the phrase “on or before 5:00 p.m. New York City time on June 19,
2007 (the “End
Date”)”.
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| 6. |
Amendment
to Section 7.1(h).
Section 7.1(h) of the Merger Agreement is amended by restating Section
7.1(h) in its entirety to read as
follows:
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“by
the
Company, if Parent does not (i) satisfy the condition set forth in Section
6.2(d) within seven (7) business days after notice by the Company to Parent
that
the conditions set forth in Sections 6.1 and 6.3 are satisfied (or, upon an
immediate Closing, would be satisfied as of such Closing) and (ii) proceed
immediately thereafter to give effect to a Closing; provided,
however,
that
the Company shall not deliver such notice prior to June 8, 2007;”
| 7. |
Dividend.
Notwithstanding anything in Section 5.1(b)(i)(B) of the Merger Agreement
to the contrary, from the date of this Amendment through the earlier
of
the Closing Date and the End Date, the Company agrees that it shall
not
declare, announce or pay a regular quarterly cash dividend on the
Company
Common Stock.
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| 8. |
Financing.
Parent has delivered to the Company the executed amendment to the
Debt
Commitment Letter attached as Annex A, and the Company consents to
such
amendment of the Debt Commitment Letter. The Debt Commitment Letter,
as so
amended, shall be deemed to be the “Debt Commitment Letter” referred to in
the Merger Agreement and the commitment of the parties thereto to
provide
the amount of debt financing set forth therein to Parent shall be
deemed
to be the “Debt Financing” referred to in the Merger Agreement. For the
avoidance of doubt, Sections 4.5 and 5.11 of the Merger Agreement
shall
apply mutatis
mutandis
to
this Amendment, the Debt Commitment Letter and Debt Financing, and
the
Merger Agreement as amended by this
Amendment.
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| 9. |
Miscellaneous
Provisions.
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(a) Company
Shareholder Meeting.
The
parties acknowledge and agree that the Company Meeting shall be convened on
May
25, 2007, but shall at such time be adjourned until June 5, 2007 to provide
OSI’s stockholders with additional time to consider the modifications to the
Merger and the Merger Agreement effectuated by this Amendment, including the
revised Merger Consideration.
(b) No
Further Amendment.
Except
as expressly amended by this Amendment, the Merger Agreement is in all respects
ratified and confirmed and all the terms, conditions, representations,
warranties, covenants and provisions thereof shall remain in full force and
effect in accordance with their respective terms. This Amendment is limited
precisely as written and shall not be deemed to be an amendment to any other
term or condition of the Merger Agreement or any of the documents referred
to
therein or the Company Disclosure Letter or any of the documents referred to
therein or otherwise affect or operate as a waiver or relinquishment of any
of
the rights of any party under any of them. Except as expressly amended by this
Amendment, this Amendment does not constitute a waiver of any condition or
other
provision of the Merger Agreement.
(c) Effect
of Amendment.
This
Amendment shall form a part of the Merger Agreement for all purposes, and
Parent, Merger Sub and the Company shall be bound by this Amendment. From and
after the execution of this Amendment by Parent, Merger Sub and the Company,
any
reference to the Merger Agreement or the Company Disclosure Letter shall be
deemed a reference to the Merger Agreement or the Company Disclosure Letter
as
amended, respectively, by this Amendment.
(d) Representations
and Warranties of the Company.
The
Company represents and warrants that (i) it has the corporate power and
authority to execute and deliver this Amendment and, subject to the receipt
of
the Company Stockholder Approval, to perform its obligations hereunder; (ii)
the
execution, delivery and performance by the Company of this Amendment have been
duly and validly authorized by all necessary corporate action on the part of
the
Company, and no other corporate proceedings other than those previously taken
or
conducted on the part of the
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Company
are necessary to approve and authorize this Amendment; (iii) the execution
and
delivery of this Amendment and the consummation of the transactions contemplated
hereby does not (except as described in Section 3.3(b) of the Merger Agreement)
conflict with or result in the violation of (x) any provision of the certificate
of incorporation or equivalent organizational document, in each case, as amended
of the Company or its Subsidiaries or (y) conflict with or violate any
applicable Laws, except in the case of clause (y) any such violation or conflict
that would not have, individually or in the aggregate, a Company Material
Adverse Effect; and (iv) the Special Committee has unanimously determined, and
the Board of Directors has determined, that it is in the best interests of
the
Company and its stockholders, and declared it advisable, to enter into this
Amendment, and each of the Special Committee and the Board of Directors has,
as
of the date of this Amendment, approved and adopted this Amendment, and
recommended adoption of the Merger Agreement, as amended by this Amendment,
by
the stockholders of the Company. This Amendment has been duly and validly
executed and delivered by the Company and, assuming this Amendment constitutes
the valid and binding agreement of Parent and Merger Sub, constitutes the valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms.
(e) Representations
and Warranties of Parent and Merger Sub.
Parent
and Merger Sub represent and warrant that (i) each of Parent and Merger Sub
has
the corporate power and authority to execute and deliver this Amendment and
to
consummate the transactions contemplated by this Amendment; (ii) the execution,
delivery and performance by Parent and Merger Sub of this Amendment have been
duly and validly authorized by all necessary corporate action on the part of
each of Parent and Merger Sub, including approval and authorization of the
Merger and the other transactions contemplated by the Merger Agreement by the
Boards of Directors or comparable governing body of each of Parent and Merger
Sub; (iii) no other corporate proceedings (including no shareholder action)
other than those previously taken or conducted on the part of Parent and Merger
Sub, as applicable, are necessary to approve and authorize this Amendment.
This
Amendment has been duly and validly executed and delivered by Parent and Merger
Sub and, assuming this Amendment constitutes the valid and binding agreement
of
the Company, constitutes the valid and binding agreement of Parent and Merger
Sub, enforceable against Parent and Merger Sub in accordance with its terms;
and
(iv) the execution and delivery by Parent and Merger Sub of this Agreement
and
the consummation of the transactions contemplated hereby does not (except as
described in Section 4.2(b) of the Merger Agreement) (x) conflict with or result
on any violation of any provision of the certificate of incorporation or bylaws
or other equivalent organizational document, in each case, as amended, of Parent
or its Subsidiaries or (y) conflict with or violate any applicable Laws, other
than in the case of clause (y), any such violation or conflict, which would
not
have, individually or in the aggregate a Parent Material Adverse
Effect.
(f) Other
Miscellaneous Terms.
The
provisions of Article X (Miscellaneous) of the Merger Agreement shall apply
mutatis
mutandis
to this
Amendment, and to the Merger Agreement as modified by this Amendment, taken
together as a single agreement, reflecting the terms therein as modified by
this
Amendment.
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IN
WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Amendment
to be duly executed and delivered as of the date first written
above.
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Kangaroo
Holdings, Inc.
By: /s/Xxxxxx
Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
President
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Kangaroo
Acquisition, Inc.
By: /s/Xxxxxx
Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
President
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By: /s/Xxxx
X. Xxxx
Name:
Xxxx X. Xxxx
Title:
Director
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