AMENDMENT TO OUTBACK STEAKHOUSE, INC. AMENDED AND RESTATED STOCK PLAN
Exhibit
10.5
AMENDMENT
TO OUTBACK STEAKHOUSE, INC.
AMENDED
AND RESTATED STOCK PLAN
WHEREAS,
in connection with the transactions contemplated by the Agreement and Plan
of
Merger among Kangaroo Holdings, Inc., Kangaroo Acquisition, Inc. and Outback
Steakhouse, Inc. (the “Company”), dated as of November 5, 2006 (the “Merger
Agreement”), the Board of Directors (the “Board”) and the Compensation Committee
of the Board of Directors (the “Committee”) have determined as required by the
Merger Agreement to amend and construe the Outback Steakhouse, Inc. Amended
and
Restated Stock Plan (the “Plan”) as permitted by Section 7 of the Plan and
consistent with the Board’s and the Committee’s authority under Section 2 of the
Plan.
NOW
THEREFORE, the Plan is hereby amended effective immediately with respect to
all
awards thereunder, as follows:
The
following Section 12 is hereby added after Section 11 of the Plan:
12.
Effect
of the Merger.
(a)
Options.
Notwithstanding anything to the contrary in the Plan or an award agreement,
at
the “Effective Time” (as defined in the Agreement
and Plan of Merger among Kangaroo Holdings, Inc., Kangaroo Acquisition, Inc.
and
the Corporation, dated as of November 5, 2006 (the “Merger
Agreement”),
each
Option granted under the Plan, whether vested or unvested, that is outstanding
immediately prior to the Effective Time will, as of the Effective Time, become
fully vested and be converted into the right to receive at the Effective Time
an
amount in cash in U.S. dollars equal to the product of (x) the total number
of
shares of Common Stock subject to such Option and (y) the excess, if any, of
the
“Merger Consideration” (as defined in the Merger Agreement) over the per share
Option price, with the aggregate amount of such payment rounded down to the
nearest cent, less such amounts as are required to be withheld or deducted
under
the Code or any provision of state, local or foreign Tax Law with respect to
the
making of such payment.
(b) Restricted
Stock.
Notwithstanding anything to the contrary in the Plan or an award agreement
(and
except as may otherwise be agreed to in writing by a Grantee), at the Effective
Time, each award of Restricted Stock will be converted into an obligation to
pay
cash with a value equal to the product of (i) the Merger Consideration and
(ii)
the number of shares of Restricted Stock in respect of such award (the “Cash
Amount”). The Grantee’s right to the Cash Amount will vest in accordance with
the original scheduled vesting dates applicable to the converted Restricted
Stock (as set forth in the Restricted Stock award agreement, employment
agreement or other applicable agreement (the “Applicable Agreement”)), and each
vested portion of the Cash Amount will be paid to the Grantee, less applicable
withholdings, on or as soon as practicable following the date on which it vests;
provided,
however,
that
the Cash Amount will vest and be paid to the Grantee (or the Grantee’s estate or
beneficiary, as applicable), less applicable withholdings, upon the Grantee’s
death, “disability” (as defined in the Applicable Agreement or, if there is not
a definition of disability in any Applicable Agreement, as
defined in Section 22(e)(3) of the Code)
or
termination by the Corporation other than for “cause” (as defined in the
Applicable Agreement or, if there is not a definition of cause in any Applicable
Agreement, consistent
with the principles set forth in Section I.C. of the Managing Partner Program
Memo dated March 1, 2006). At the Effective Time, the Corporation will establish
a separate account for each Grantee’s Cash Amount, with the amounts credited to
such account to be credited with the allocable portion of the earnings on the
assets of the trust described in the following sentence.
Prior
to
the Effective Time, the Corporation will establish an irrevocable grantor trust
(subject to the claims of the Corporation’s and its subsidiaries’ creditors, and
subject to the Corporation’s and its subsidiaries right to the reversion of any
assets held in the trust with respect to forfeited accounts) to provide for
the
payment of the Cash Amounts and, on the Effective Time, the Corporation will
deposit cash in an amount equal to the aggregate Cash Amounts in respect of
all
Restricted Stock, with the trust assets to be invested at
the
option of the applicable Grantee
in a
money market fund or S&P 500 index fund selected by an independent
trustee.
The
Corporation and its affiliates will remain responsible for the payment of any
Cash Amounts payable to a Grantee that are not paid from the trust. The
provisions of this Section 12(b) may not be amended following the Effective
Time
in a manner that is adverse to Grantees without their prior written
consent.
Except
as
expressly modified hereby, the terms and provisions of the Plan shall remain
in
full force and effect. In the event the Merger Agreement is terminated in
accordance with its terms, this Amendment shall be void ab
initio
and of
no force and effect.